<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1998
REGISTRATION NO. 333-68057
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
MODEM MEDIA . POPPE TYSON, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7311 06-1464807
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
INCORPORATION OR
ORGANIZATION)
MODEM MEDIA . POPPE TYSON, INC.
228 SAUGATUCK AVENUE
WESTPORT, CT 06880
(203) 341-5200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
GERALD M. O'CONNELL
CHIEF EXECUTIVE OFFICER
MODEM MEDIA . POPPE TYSON, INC.
228 SAUGATUCK AVENUE
WESTPORT, CT 06880
(203) 341-5200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
ALAN K. AUSTIN, ESQ. ALAN DEAN, ESQ.
BRIAN C. ERB, ESQ. DAVIS POLK & WARDWELL
WILSON SONSINI GOODRICH & ROSATI 450 LEXINGTON AVENUE
PROFESSIONAL CORPORATION NEW YORK, NY 10017
650 PAGE MILL ROAD (212) 450-4000
PALO ALTO, CA 94304
(650) 493-9300
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of Class A common stock being registered. All amounts are
estimates except the SEC registration fee, the NASD filing fee and the Nasdaq
National Market listing fee.
<TABLE>
<CAPTION>
AMOUNT TO
BE PAID
---------
<S> <C>
SEC registration fee............................................... $12,510
NASD filing fee.................................................... 5,000
Nasdaq National Market listing fee................................. *
Printing and engraving expenses.................................... *
Legal fees and expenses............................................ *
Accounting fees and expenses....................................... *
Blue Sky qualification fees and expenses........................... *
Transfer agent and registrar fees.................................. *
Miscellaneous fees................................................. *
-------
Total............................................................ $ *
=======
</TABLE>
- --------
* To be supplied by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Thirteenth of the Registrant's Certificate of Incorporation (Exhibit
3.1 hereto) and Article VI of the Registrant's Bylaws (Exhibit 3.2 hereto)
provide for mandatory indemnification of its directors and officers, and
permissible indemnification of employees and other agents, to the maximum
extent permitted by the Delaware General Corporation Law. In addition, the
Registrant intends to enter into Indemnification Agreements (Exhibit 10.8
hereto) with its officers and directors. Reference is also made to Section of
the Underwriting Agreement contained in Exhibit 1.1 hereto, which provides for
the indemnification of officers and directors of the Registrant against certain
liabilities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
From the Registrant's inception through November 27, 1998, the Registrant has
sold the following securities:
(1) In December 1996, the Registrant issued an aggregate of 2,542,785 shares of
its Class A common stock to Gerald M. O'Connell, Douglas C. Ahlers, Robert
C. Allen, II and Kraft Enterprises LTD, the limited partners of Modem Media
Advertising Limited Partnership ("Modem") and Messrs. O'Connell and Ahlers,
the stockholders of Modem Media, Inc., the general partner of Modem, in
exchange for a portion of their respective limited and general partnership
interests in Modem and all of the capital stock of Modem Media Inc.
(2) In December 1996, the Registrant issued 2,802,114 shares of its Class A
common stock to True North Communications Inc. ("TNC") in exchange for all
of its limited and general partnership interests in Modem.
(3) In December 1996, the Registrant issued 5,093,800 shares of its Class B
common stock to TNC in connection with the transfer and assignment to the
Registrant of substantially all of the assets and properties of TNC's
existing digital marketing communications business (representing 2,291,686
shares of
II-1
<PAGE>
the Registrant's Class A Common Stock) and the exchange of the Registrant's
Class A Common Stock held by TNC for Class B Common Stock.
(4) From its inception through November 27, 1998, the Registrant has issued
shares of Class A common stock upon the exercise of options as follows:
<TABLE>
<CAPTION>
EXERCISE PRICE
NUMBER OF SHARES PER SHARE
---------------- --------------
<S> <C>
496 $ 0.61
8,936 $ 11.00
</TABLE>
The issuances of the securities described in (1) through (3) above were
deemed to be exempt from registration under the Securities Act in reliance on
Section 4(2) of such Act as transactions by an issuer not involving any public
offering. All of the securities were acquired by the recipients for investment
and with no view toward the resale or distribution thereof. In each instance,
the recipient was an employee of the Company or a sophisticated investor, the
offer and sales were made without any public solicitation and the stock
certificates bear restrictive legends. No underwriter was involved in the
transactions and no commissions were paid. All recipients had adequate access,
through their relationships with the Registrant, to information about the
Registrant. The sales of the Securities described in (4) above were deemed to
be exempt from registration under the Securities Act in reliance on Rule 701
under such Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1(a) Certificate of Incorporation of Registrant, as amended.
3.1(b) Form of Amended and Restated Certificate of Incorporation of
Registrant to be effective upon consummation of the offering.
3.2(a) Bylaws of Registrant, as amended.
3.2(b)* Form of Bylaws of Registrant to be effective upon consummation of
the offering.
4.1* Form of Registrant's Class A common stock certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, regarding legality of the securities being issued.
10.1(a)* Form of Administrative Services Agreement between Registrant and
True North Communications Inc.
10.1(b)* Form of Intercompany Credit Agreement between the Registrant and
True North Communications Inc.
10.1(c)* Form of Tax Matters Agreement between the Registrant and True
North Communications Inc.
10.2* Intercompany Demand Note dated November 24, 1998 issued by True
North Communications Inc. to the Registrant.
10.3* Form of Affiliation Agreement between the Registrant and Modem
Media . Poppe Tyson do Brasil Ltda.
10.4* Sublease Modification Agreement between the Registrant and Bozell,
Jacobs, Kenyon & Eckhardt, Inc., dated August 1, 1998.
10.5(a)* Employment Agreement between Registrant and Gerald M. O'Connell,
dated as of January 1, 1997.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
10.5(b)* Employment Agreement between Registrant and Douglas C. Ahlers,
dated as of January 1, 1997.
10.5(c)* Employment Agreement between Registrant and Robert C. Allen, II,
dated as of January 1, 1997.
10.6(a) Covenant Not to Compete or Solicit Business between Registrant and
Gerald M. O'Connell, dated as of December 31, 1996.
10.6(b) Covenant Not to Compete or Solicit Business between Registrant and
Douglas C. Ahlers, dated as of December 31, 1996.
10.6(c) Covenant Not to Compete or Solicit Business between Registrant and
Robert C. Allen, II, dated as of December 31, 1996.
10.7(a) Letter Agreement between Registrant and Steven C. Roberts dated
December 2, 1996.
10.7(b) Noncompetition, Confidentiality and Proprietary Rights Agreement
between Steven C. Roberts and the Registrant.
10.8 Form of Indemnification Agreement.
10.9* 1997 Stock Option Plan, as amended.
10.10* 1999 Employee Stock Purchase Plan.
21.1 List of subsidiaries.
23.1* Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
23.2+ Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1+ Power of Attorney.
27.1+ Financial Data Schedule.
</TABLE>
- --------
* To be filed by amendment.
+ Previously filed with the Commission on November 27, 1998 as an exhibit
to the Registrant's Registration Statement on Form S-1.
(b) FINANCIAL STATEMENT SCHEDULES
Not applicable.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has had been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered
hereunder, the Registrant will, unless in the opinion of its counsel the matter
has had been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS HAD DULY CAUSED THIS AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT ON FORM
S-1 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED,
IN THE CITY OF WESTPORT, STATE OF CONNECTICUT, ON THIS 23RD DAY OF DECEMBER,
1998.
Modem Media . Poppe Tyson, Inc.
By: /s/ Gerald M. O'Connell
---------------------------------
Gerald M. O'Connell
Chief Executive Officer
(Principal Executive Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Gerald M. O'Connell Chief Executive Officer December 23, 1998
______________________________________ and Director
GERALD M. O'CONNELL (Principal Executive
Officer)
Steven C. Roberts* Chief Financial Officer December 23, 1998
______________________________________ (Principal Financial and
STEVEN C. ROBERTS Accounting Officer)
Robert C. Allen, II* Director December 23, 1998
______________________________________
ROBERT C. ALLEN, II
Donald M. Elliman, Jr.* Director December 23, 1998
______________________________________
DONALD M. ELLIMAN, JR.
Donald L. Seeley* Director December 23, 1998
______________________________________
DONALD L. SEELEY
Theodore J. Theophilos* Director December 23, 1998
______________________________________
THEODORE J. THEOPHILOS
</TABLE>
*By: /s/ Gerald M. O'Connell
- ---------------------------------
GERALD M. O'CONNELL
Attorney-in-fact
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1(a) Certificate of Incorporation of Registrant, as amended.
3.1(b) Form of Amended and Restated Certificate of Incorporation of
Registrant to be effective upon consummation of the offering.
3.2(a) Bylaws of Registrant, as amended.
3.2(b)* Form of Bylaws of Registrant to be effective upon consummation of
the offering.
4.1* Form of Registrant's Class A common stock certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, regarding legality of the securities being issued.
10.1(a)* Form of Administrative Services Agreement between Registrant and
True North Communications Inc.
10.1(b)* Form of Intercompany Credit Agreement between the Registrant and
True North Communications Inc.
10.1(c)* Form of Tax Matters Agreement between the Registrant and True
North Communications Inc.
10.2* Intercompany Demand Note dated November 24, 1998 issued by True
North Communications Inc. to the Registrant.
10.3* Form of Affiliation Agreement between the Registrant and Modem
Media . Poppe Tyson do Brasil Ltda.
10.4* Sublease Modification Agreement between the Registrant and Bozell,
Jacobs, Kenyon & Eckhardt, Inc., dated August 1, 1998.
10.5(a)* Employment Agreement between Registrant and Gerald M. O'Connell,
dated as of January 1, 1997.
10.5(b)* Employment Agreement between Registrant and Douglas C. Ahlers,
dated as of January 1, 1997.
10.5(c)* Employment Agreement between Registrant and Robert C. Allen, II,
dated as of January 1, 1997.
10.6(a) Covenant Not to Compete or Solicit Business between Registrant and
Gerald M. O'Connell, dated as of December 31, 1996.
10.6(b) Covenant Not to Compete or Solicit Business between Registrant and
Douglas C. Ahlers, dated as of December 31, 1996.
10.6(c) Covenant Not to Compete or Solicit Business between Registrant and
Robert C. Allen, II, dated as of December 31, 1996.
10.7(a) Letter Agreement between Registrant and Steven C. Roberts dated
December 2, 1996.
10.7(b) Noncompetition, Confidentiality and Proprietary Rights Agreement
between Steven C. Roberts and the Registrant.
10.8 Form of Indemnification Agreement.
10.9* 1997 Stock Option Plan, as amended.
10.10* 1999 Employee Stock Purchase Plan.
21.1 List of subsidiaries.
23.1* Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
23.2+ Consent of Arthur Andersen LLP, Independent Public Accountants
(see page II-5).
24.1+ Power of Attorney (included on page II-4).
27.1+ Financial Data Schedule.
</TABLE>
- --------
* To be filed by amendment.
+ Previously filed with the Commission on November 27, 1998 as an exhibit to
the Registrant's Registration Statement on Form S-1.
<PAGE>
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
-----
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
--------
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
------
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
-----
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
<PAGE>
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.
<PAGE>
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
----------------------------------------
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
2
<PAGE>
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
---------------
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
---------------------------------------
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
------
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
<PAGE>
6. Conversion.
----------
(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
<PAGE>
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
---------------------
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
-------------------------
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
<PAGE>
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
6
<PAGE>
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.
7
<PAGE>
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
8
<PAGE>
EXHIBIT 3.1(b)
--------------
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,
-----
1996 under the name TN Technologies Holding Inc., pursuant to General
Corporation Law.
SECOND: That the Corporation's Certificate of Incorporation is hereby
------
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
<PAGE>
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
---------
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,
-2-
<PAGE>
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
---------------------------------------
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
--------------------------------------
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
------
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.
----------
(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
-3-
<PAGE>
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
-----------------------
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
-4-
<PAGE>
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
---------------------
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
-------------------------
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
-----------------------------------------
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
-5-
<PAGE>
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
---- ---------------
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.
-6-
<PAGE>
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."
-7-
<PAGE>
THIRD: The foregoing amendment and restatement of the Certificate of
-----
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
------
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
-----
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
<PAGE>
EXHIBIT 3.2(a)
BYLAWS
OF
TN TECHNOLOGIES HOLDING INC.
(A DELAWARE CORPORATION)
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I - CORPORATE OFFICES .................................................1
1.1 REGISTERED OFFICE .................................................1
1.2 OTHER OFFICES .....................................................1
ARTICLE II - MEETINGS OF STOCKHOLDERS .........................................1
2.1 PLACE OF MEETINGS .................................................1
2.2 ANNUAL MEETING ....................................................1
2.3 SPECIAL MEETING ...................................................3
2.5 NOTICE OF STOCKHOLDERS' MEETINGS ..................................4
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE ......................4
2.7 QUORUM ............................................................4
2.8 ADJOURNED MEETING; NOTICE .........................................5
2.9 VOTING ............................................................5
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT .................6
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT
WITHOUT A MEETING .................................................6
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING;
GIVING CONSENTS ...................................................7
2.13 PROXIES ...........................................................7
2.14 INSPECTORS OF ELECTION ............................................8
ARTICLE III - DIRECTORS .......................................................8
3.1 POWERS ............................................................8
3.2 NUMBER AND TERM OF OFFICE .........................................9
3.3 BOARD REPRESENTATION ..............................................9
3.4 RESIGNATION AND VACANCIES .........................................9
3.5 REMOVAL ..........................................................11
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE .........................11
3.7 FIRST MEETINGS ...................................................11
3.8 REGULAR MEETINGS .................................................11
3.9 SPECIAL MEETINGS; NOTICE .........................................11
3.10 QUORUM ...........................................................12
3.11 WAIVER OF NOTICE .................................................12
3.12 ADJOURNMENT ......................................................12
3.13 NOTICE OF ADJOURNMENT ............................................13
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING ................13
3.15 ORGANIZATION .....................................................13
3.16 FEES AND COMPENSATION OF DIRECTORS ...............................13
3.17 APPROVAL OF LOANS TO OFFICERS ....................................13
ARTICLE IV - COMMITTEES ......................................................14
4.1 COMMITTEES OF DIRECTORS ..........................................14
4.2 MEETINGS AND ACTION OF COMMITTEES ................................14
ARTICLE V - OFFICERS .........................................................15
5.1 OFFICERS .........................................................15
5.2 ELECTION OF OFFICERS .............................................15
5.3 SUBORDINATE OFFICERS .............................................15
5.4 REMOVAL AND RESIGNATION OF OFFICERS ..............................15
5.5 VACANCIES IN OFFICES .............................................15
5.6 CHAIRMAN OF THE BOARD ............................................16
5.7 CHIEF EXECUTIVE OFFICER ..........................................16
5.9 VICE PRESIDENTS ..................................................16
5.10 SECRETARY ........................................................17
5.11 CHIEF FINANCIAL OFFICER ..........................................17
ARTICLE VI - INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS ............................................18
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS ........................18
6.2 INDEMNIFICATION OF OTHERS ........................................18
6.3 INSURANCE ........................................................19
6.4 EXPENSES .........................................................19
6.5 NON-EXCLUSIVITY OF RIGHTS ........................................19
6.6 SURVIVAL OF RIGHTS ...............................................20
6.7 AMENDMENTS .......................................................20
ARTICLE VII - RECORDS AND REPORTS ............................................20
7.1 MAINTENANCE AND INSPECTION OF RECORDS ............................20
7.2 INSPECTION BY DIRECTORS ..........................................21
7.3 ANNUAL STATEMENT TO STOCKHOLDERS .................................21
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS ...................21
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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ARTICLE VIII - GENERAL MATTERS ...............................................22
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING ............22
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS ........................22
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED ...............22
8.4 STOCK CERTIFICATES; PARTLY PAID SHARES ...........................23
8.5 SPECIAL DESIGNATION ON CERTIFICATES ..............................23
8.6 LOST CERTIFICATES ................................................24
8.7 CONSTRUCTION; DEFINITIONS ........................................24
ARTICLE IX - AMENDMENTS ......................................................24
ARTICLE X - DISSOLUTION ......................................................24
ARTICLE XI - CUSTODIAN .......................................................25
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES ......................25
11.2 DUTIES OF CUSTODIAN ..............................................26
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BYLAWS
OF
TN TECHNOLOGIES HOLDING INC.
(A DELAWARE CORPORATION)
ARTICLE I
CORPORATE OFFICES
-----------------
1.1 REGISTERED OFFICE
The registered office of the corporation shall be fixed in the Certificate
of Incorporation of the corporation.
1.2 OTHER OFFICES
The board of directors may at any time establish branch or subordinate
offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or outside the
State of Delaware designated by the board of directors. In the absence of any
such designation, stockholders' meetings shall be held at the registered office
of the corporation.
2.2 ANNUAL MEETING
(a) The annual meeting of stockholders shall be held each year on a
date and at a time designated by the board of directors. In the absence of such
designation, the annual meeting of stockholders shall be held on the third
Thursday in May of each year at 10:00 a.m. However, if such day falls on a
legal holiday, then the meeting shall be held at the same time and place on the
next
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succeeding full business day. At the meeting, directors shall be elected,
and any other proper business may be transacted.
(b) At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be: (A) specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the board of directors, (B) otherwise properly brought before the meeting by
or at the direction of the board of directors, or (C) otherwise properly brought
before the meeting by a stockholder. For business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation not less than one hundred twenty
(120) calendar days in advance of the date specified in the corporation's proxy
statement released to stockholders in connection with the previous year's annual
meeting of stockholders; provided, however, that in the event that no annual
meeting was held in the previous year or the date of the annual meeting has been
changed by more than thirty (30) days from the date contemplated at the time of
the previous year's proxy statement, notice by the stockholder to be timely must
be so received a reasonable time before the solicitation is made. A
stockholder's notice to the secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting: (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and address,
as they appear on the corporation's books, of the stockholder proposing such
business, (iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder, (iv) any material interest of the
stockholder in such business and (v) any other information that is required to
be provided by the stockholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), in his capacity as a
proponent to a stockholder proposal. Notwithstanding the foregoing, in order to
include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholder's meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934 Act.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this paragraph (b). The chairman of the annual meeting shall, if the
facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this paragraph (b), and, if he should so determine, he shall so declare at the
meeting that any such business not properly brought before the meeting shall not
be transacted.
(c) Only persons who are nominated in accordance with the procedures
set forth in this paragraph (c) shall be eligible for election as directors.
Nominations of persons for election to the board of directors of the corporation
may be made at a meeting of stockholders by or at the direction of the board of
directors or by any stockholder of the corporation entitled to vote in the
election of directors at the meeting who complies with the notice procedures set
forth in this paragraph (c). Such nominations, other than those made by or at
the direction of the board of directors, shall be made pursuant to timely notice
in writing to the secretary of the corporation in accordance with the provisions
of paragraph (b) of this Section 2.2. Such stockholder's notice shall set forth
(i) as to each
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person, if any, whom the stockholder proposes to nominate for election or re-
election as a director: (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the corporation which are
beneficially owned by such person, (D) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nominations are to
be made by the stockholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of proxies for
elections of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the 1934 Act (including without limitation such person's
written consent to being named in the proxy statement, if any, as a nominee and
to serving as a director if elected); and (ii) as to such stockholder giving
notice, the information required to be provided pursuant to paragraph (b) of
this Section 2.2. At the request of the board of directors, any person nominated
by a stockholder for election as a director shall furnish to the secretary of
the corporation that information required to be set forth in the stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth in this paragraph (c). The chairman of the meeting
shall, if the facts warrants, determine and declare at the meeting that a
nomination was not made in accordance with the procedures prescribed by these
Bylaws, and if he should so determine, he shall so declare at the meeting, and
the defective nomination shall be disregarded.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the
board of directors, or by the chairman of the board, or in the absence of the
chairman of the board by the chief executive officer, but such special meetings
may not be called by any other person or persons.
If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, chief executive
officer, president, or the secretary of the corporation. No business may be
transacted at such special meeting otherwise than specified in such notice. The
officer receiving the request shall cause notice to be promptly given to the
stockholders entitled to vote, in accordance with the provisions of Sections 2.5
and 2.6, that a meeting will be held at the time requested by the person or
persons who called the meeting, not less than ten (10) nor more than sixty (60)
days after the receipt of the request. If the notice is not given within twenty
(20) days after the receipt of the request, the person or persons requesting the
meeting may give the notice. Nothing contained in this paragraph of this
Section 2.3 shall be construed as limiting, fixing, or affecting the time when a
meeting of stockholders called by action of the board of directors may be held.
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2.4 ORGANIZATION
Meetings of stockholders shall be presided over by the chairman of the
board, if any, or in his absence by the vice chairman of the board, if any, or
in his absence by the chief executive officer, if any, or in his absence by the
president, if any, or in his absence a vice president, or in the absence of the
foregoing persons by a chairman designated by the board of directors, or in the
absence of such designation by a chairman chosen at the meeting. The secretary
shall act as secretary of the meeting, but in his absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
2.5 NOTICE OF STOCKHOLDERS' MEETINGS
Except as set forth in Section 2.3, all notices of meetings of stockholders
shall be sent or otherwise given in accordance with Section 2.6 of these Bylaws
not less than ten (10) nor more than sixty (60) days before the date of the
meeting. The notice shall specify the place, date, and hour of the meeting and
(i) in the case of a special meeting, the general nature of the business to be
transacted (no business other than that specified in the notice may be
transacted) or (ii) in the case of the annual meeting, those matters which the
board of directors, at the time of giving the notice, intends to present for
action by the stockholders (but any proper matter may be presented at the
meeting for such action). The notice of any meeting at which directors are to
be elected shall include the name of any nominee or nominees who, at the time of
the notice, the board intends to present for election.
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. If no such address appears on the
corporation's books or is given, notice shall be deemed to have been given if
sent to that stockholder by mail or telegraphic or other written communication
to the corporation's principal executive office, or if published at least once
in a newspaper of general circulation in the county where that office is
located. Notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by telegram or other means of
written communication.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
2.7 QUORUM
The presence in person or by proxy of the holders of a majority the voting
power of the shares entitled to vote thereat constitutes a quorum for the
transaction of business at all meetings of stockholders; provided, however,
that in the case of any vote to be taken by classes, the holders of a majority
of the votes entitled to be cast by the stockholders of a particular class shall
constitute a
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quorum for the transaction of business by such class. The stockholders present
at a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the voting power of the
shares required to constitute a quorum.
2.8 ADJOURNED MEETING; NOTICE
Any stockholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of the majority of the
voting power of the shares represented at that meeting, either in person or by
proxy. In the absence of a quorum, no other business may be transacted at that
meeting except as provided in Section 2.7 of these Bylaws.
When any meeting of stockholders, either annual or special, is adjourned
to another time or place, notice need not be given of the adjourned meeting if
the time and place are announced at the meeting at which the adjournment is
taken. However, if a new record date for the adjourned meeting is fixed or if
the adjournment is for more than thirty (30) days from the date set for the
original meeting, then notice of the adjourned meeting shall be given. Notice of
any such adjourned meeting shall be given to each stockholder of record entitled
to vote at the adjourned meeting in accordance with the provisions of Sections
2.5 and 2.6 of these Bylaws. At any adjourned meeting the corporation may
transact any business which might have been transacted at the original meeting.
2.9 VOTING
Voting at any meeting of stockholders need not be by ballot; provided,
however, that elections for directors shall be by written ballot, unless
otherwise provided for in the Certificate of Incorporation.
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.12 of these Bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint
owners, and to voting trusts and other voting agreements).
Each stockholder shall be entitled to that number of votes for each share
held as it set forth in the Certificate of Incorporation of the corporation, as
amended or restated, or in the resolution or resolutions adopted by the board of
directors providing for the issuance of such stock, except as may otherwise be
required by law.
Any stockholder entitled to vote on any matter may vote part of the shares
in favor of the proposal and refrain from voting the remaining shares or, except
when the matter is the election of directors, may vote them against the
proposal; but if the stockholder fails to specify the number of shares which
the stockholder is voting affirmatively, it will be conclusively presumed that
the stockholder's approving vote is with respect to all shares which the
stockholder is entitled to vote.
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If a quorum is present, the affirmative vote of the voting power of the
shares represented, in person or by proxy, and voting at a duly held meeting
(which shares voting affirmatively also constitute at least a majority of the
voting power of the required quorum) shall be the act of the stockholders,
unless the vote of a greater number or a vote by classes is required by law or
by the Certificate of Incorporation.
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT
The transactions of any meeting of stockholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as though they
had been taken at a meeting duly held after regular call and notice, if a quorum
be present either in person or by proxy, and if, either before or after the
meeting, each person entitled to vote, who was not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. The waiver of notice or consent
or approval need not specify either the business to be transacted or the purpose
of any annual or special meeting of stockholders. All such waivers, consents,
and approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of and presence at that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included, if that objection is
expressly made at the meeting.
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise provided in the Certificate of Incorporation, for so long
as any shares of Class B Common are outstanding, any action which may be taken
at any annual or special meeting of stockholders may be taken without a meeting
and without prior notice, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take that action
at a meeting at which all shares entitled to vote on that action were present
and voted.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. If the action which is consented to is such as
would have required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such section shall state, in
lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
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2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat or entitled to give consent to corporate action
without a meeting, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before
the date of any such meeting nor more than sixty (60) days before any such
action without a meeting, and in such event only stockholders of record on the
date so fixed are entitled to notice and to vote or to give consents, as the
case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date.
If the board of directors does not so fix a record date:
(a) the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
business day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held; and
(b) the record date for determining stockholders entitled to give
consent to corporate action in writing without a meeting, (i) when no prior
action by the board of directors has been taken, shall be the day on which the
first written consent is given, or (ii) when prior action by the board of
directors has been taken, shall be at the close of business on the day on which
the board of directors adopts the resolution relating to that action.
The record date for any other purpose shall be as provided in Article VIII
of these Bylaws.
2.13 PROXIES
Every person entitled to vote for Directors, or on any other matter, shall
have the right to do so either in person or by one or more agents authorized by
a written proxy signed by the person and filed with the Secretary of the
corporation, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission or otherwise) by the
stockholder or the stockholder's attorney-in-fact. A duly executed proxy shall
be irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not irrevocable by attending
the meeting and voting in person or by filing an instrument in writing revoking
the proxy or another duly executed proxy bearing a later date with the secretary
of the corporation.
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2.14 INSPECTORS OF ELECTION
Before any meeting of stockholders, the board of directors may appoint an
inspector or inspectors of election to act at the meeting or its adjournment.
If no inspector of election is so appointed, then the chairman of the meeting
may, and on the request of any stockholder or a stockholder's proxy shall,
appoint an inspector or inspectors of election to act at the meeting. The
number of inspectors shall be either one (1) or three (3). If inspectors are
appointed at a meeting pursuant to the request of one (1) or more stockholders
or proxies, then the holders of a majority of the voting power of shares or
their proxies present at the meeting shall determine whether one (1) or three
(3) inspectors are to be appointed. If any person appointed as inspector fails
to appear or fails or refuses to act, then the chairman of the meeting may, and
upon the request of any stockholder or a stockholder's proxy shall, appoint a
person to fill that vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting power of
each, the number of shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and effect
of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or
vote with fairness to all stockholders.
ARTICLE III
DIRECTORS
---------
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware and
to any limitations in the Certificate of Incorporation or these Bylaws relating
to action required to be approved by the stockholders or by the outstanding
shares, the business and affairs of the corporation shall be
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managed and all corporate powers shall be exercised by or under the direction of
the board of directors.
3.2 NUMBER AND TERM OF OFFICE
The authorized number of directors shall be eleven (11). An indefinite
number of directors may be fixed, or the definite number of directors may be
changed, by a duly adopted amendment to the Certificate of Incorporation or by
an amendment to this bylaw adopted by the vote or written consent of holders of
a majority of the voting power of the outstanding shares entitled to vote or by
resolution of a majority of the board of directors.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires. If for
any cause, the directors shall not have been elected at an annual meeting, they
may be elected as soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in these Bylaws.
3.3 BOARD REPRESENTATION
The corporation shall cause the election of the following individuals to
the board of directors: (i) so long as Gerald M. O'Connell, Douglas C. Ahlers,
and Robert C. Allen, II (the "Limited Partners") (including spouses, members of
their immediate family or their estate, heirs and intestate successors)
collectively own at least sixty-one percent (61%) of the aggregate number of the
corporation's common stock held on December 31, 1996 (the "Limited Partner
Shares"), each of the Limited Partners who continues to serve as a senior
executive of the corporation; (ii) so long as the Limited Partners (including
spouses, members of their immediate family or their estate, heirs and intestate
successors) collectively own less than sixty-one percent (61%), but at least
forty-five percent (45%) of the Limited Partner Shares, Gerald M. O'Connell and
one of the other Limited Partners (designated by the Limited Partners) who
continues to serve as a senior executive of the corporation; and (iii) so long
as the Limited Partners (including spouses, members of their immediate family or
their estate, heirs and intestate successors) collectively own less than forty-
five percent (45%), but at least thirty percent (30%) of the aggregate number of
Limited Partner Shares, Gerald M. O'Connell (so long as he continues to serve as
a senior executive officer of the corporation). The corporation and the Limited
Partners shall mutually agree upon two individuals to serve on the board of
directors. The balance of the board of directors shall be elected by the
stockholders of the corporation, or to the extent necessary to fill a vacancy on
the board of directors, by the balance of the board of directors.
3.4 RESIGNATION AND VACANCIES
Any director may resign effective on giving written notice to the chairman
of the board, the chief executive officer, the secretary or the board of
directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
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Unless otherwise provided in the Certificate of Incorporation or these
Bylaws, vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director; however, a vacancy created by the removal of a director by the vote or
written consent of the stockholders or by court order may be filled only by the
affirmative vote of a majority of the voting power of shares represented and
voting at a duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute a majority of the required quorum), or by the
written consent of a majority of the voting power of shares entitled to vote
thereon. Each director so elected shall hold office until the next annual
meeting of the stockholders and until a successor has been elected and
qualified.
Unless otherwise provided in the Certificate of Incorporation or these
Bylaws:
(i) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
Certificate of Incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the Certificate of Incorporation or these Bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship,
the directors then in office constitute less than a majority of the whole board
(as constituted immediately prior to any such increase), then the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent (10%) of the total number of the then outstanding shares
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office as aforesaid, which
election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
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3.5 REMOVAL
Subject to Section 3.3 and any limitations imposed by law, and unless
otherwise provided in the Certificate of Incorporation, the board of directors,
or any individual director, may be removed from office at any time by the
affirmative vote of the holders of at least a majority of the voting power of
the then outstanding shares of the capital stock of the corporation entitled to
vote at an election of directors.
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any place within
or outside the State of Delaware that has been designated from time to time by
resolution of the board of directors. In the absence of such a designation,
regular meetings shall be held at the principal executive office of the
corporation. Special meetings of the board of directors may be held at any
place within or outside the State of Delaware that has been designated in the
notice of the meeting or, if not stated in the notice or if there is no notice,
at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference telephone or
similar communication equipment, so long as all directors participating in the
meeting can hear one another; and all such directors shall be deemed to be
present in person at the meeting.
3.7 FIRST MEETINGS
The first meeting of each newly elected board of directors shall be held
at such time and place as shall be fixed by the vote of the stockholders at the
annual meeting and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
3.8 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice if
the times of such meetings are fixed by the board of directors.
3.9 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or purposes may
be called at any time by the chairman of the board, or in the absence of the
chairman of the board by the chief executive officer or any four directors.
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Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least seven (7) days before the
time of the holding of the meeting. If the notice is delivered personally or by
telephone or telegram, it shall be delivered personally or by telephone or to
the telegraph company at least seventy-two (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
corporation.
3.10 QUORUM
A majority of the authorized number of directors shall constitute a quorum
for the transaction of business, except to adjourn as provided in Section 3.12
of these Bylaws. Every act or decision done or made by a majority of the
directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the board of directors, subject to the provisions of the
Certificate of Incorporation and applicable law.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for that meeting.
3.11 WAIVER OF NOTICE
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice or a consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or (ii) who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such directors. All such waivers, consents, and approvals shall be
filed with the corporate records or made part of the minutes of the meeting. A
waiver of notice need not specify the purpose of any regular or special meeting
of the board of directors.
3.12 ADJOURNMENT
A majority of the directors present, whether or not constituting a quorum,
may adjourn any meeting to another time and place.
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3.13 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting need not be
given if announced unless the meeting is adjourned for more than twenty-four
(24) hours. If the meeting is adjourned for more than twenty-four (24) hours,
then notice of the time and place of the adjourned meeting shall be given before
the adjourned meeting takes place, in the manner specified in Section 3.9 of
these Bylaws, to the directors who were not present at the time of the
adjournment.
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken by the board of directors may
be taken without a meeting, provided that all members of the board of directors
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a unanimous vote of the
board of directors. Such written consent and any counterparts thereof shall be
filed with the minutes of the proceedings of the board.
3.15 ORGANIZATION
Meetings of the board of directors shall be presided over by the chairman
of the board, if any, or in his absence by the vice chairman of the board, if
any, or in his absence by the chief executive officer, or in their absence by a
chairman chosen at the meeting. The secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
3.16 FEES AND COMPENSATION OF DIRECTORS
Directors and members of committees may receive such compensation, if any,
for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the board of directors. This Section 3.16 shall not
be construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and receiving compensation
for those services.
3.17 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the
corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
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ARTICLE IV
COMMITTEES
----------
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one (1) or more committees, each
consisting of two or more directors, to serve at the pleasure of the board of
directors. The board of directors may designate one (1) or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of directors.
Any committee, to the extent provided in the resolution of the board, shall have
all the authority of the board, but no such committee shall have the power or
authority to (i) amend the Certificate of Incorporation (except that a committee
may, to the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors as provided in
Section 151(a) of the General Corporation Law of Delaware, fix any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation), (ii) adopt an agreement of merger or consolidation under Sections
251, 252, 255, 256, 257, 258, 263 or 264 of the General Corporation Law of
Delaware, (iii) recommend to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets, (iv) recommend to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or (v) amend the Bylaws of the corporation; and, unless the board
resolution establishing the committee, the Bylaws or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
4.2 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these Bylaws, Section
3.6 (place of meetings), Section 3.8 (regular meetings), Section 3.9 (special
meetings and notice), Section 3.10 (quorum), Section 3.11 (waiver of notice),
Section 3.12 (adjournment), Section 3.13 (notice of adjournment), and Section
3.14 (action without meeting), with such changes in the context of those Bylaws
as are necessary to substitute the committee and its members for the board of
directors and its members; provided, however, that the time of regular meetings
of committees may be determined either by resolution of the board of directors
or by resolution of the committee, that special meetings of committees may also
be called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
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ARTICLE V
OFFICERS
--------
5.1 OFFICERS
The officers of the corporation shall be a chairman of the board, a chief
executive officer, a president, a secretary and a chief financial officer. The
corporation may also have, at the discretion of the board of directors, one or
more vice presidents, one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be appointed in accordance with the
provisions of Section 5.3 of these Bylaws. Any number of offices may be held by
the same person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be appointed
in accordance with the provisions of Section 5.3 or Section 5.5 of these Bylaws,
shall be chosen by the board of directors, subject to the rights, if any, of an
officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or may empower the chief executive
officer to appoint, such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these Bylaws or as the board of
directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by the
board of directors at any regular or special meeting of the board or, except in
case of an officer chosen by the board of directors, by any officer upon whom
such power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these Bylaws for regular appointments to that office.
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5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall serve as
the corporation's general manager, and shall have general supervision, direction
and control of the corporation's business and its officers, and, if present,
preside at meetings of the stockholders and the board of directors and exercise
and perform such other powers and duties as may from time to time be assigned to
him by the board of directors or as may be prescribed by these Bylaws. If there
is no chief executive officer, then the chairman of the board shall also be the
chief executive officer of the corporation and shall have the powers and duties
prescribed in Section 5.7 of these Bylaws. The chairman of the board shall
report to the board of directors.
5.7 CHIEF EXECUTIVE OFFICER
Subject to such supervisory powers, if any, as may be given by the board
of directors to the chairman of the board, if there be such an officer, the
chief executive officer of the corporation shall, subject to the control of the
board of directors, have general supervision, direction, and control of the
business and the officers of the corporation. He shall preside at all meetings
of the stockholders and, in the absence or nonexistence of a chairman of the
board, at all meetings of the board of directors. He shall have the general
powers and duties of management usually vested in the chief executive officer of
a corporation, and shall have such other powers and duties as may be prescribed
by the board of directors or these Bylaws.
5.8 PRESIDENT
The president may assume and perform the duties of the chief executive
officer in the absence or disability of the chief executive officer or whenever
the office of the chief executive officer is vacant. The president of the
corporation shall exercise and perform such powers and duties as may from time
to time be assigned to him by the board of directors or as may be prescribed by
these Bylaws. The president shall have authority to execute in the name of the
corporation bonds, contracts, deeds, leases and other written instruments to be
executed by the corporation. In the absence or nonexistence of the chairman of
the board and chief executive officer, he shall preside at all meetings of the
stockholders and, in the absence or nonexistence of a chairman of the board and
the chief executive officer, at all meetings of the board of directors and shall
perform such other duties as the board of directors may from time to time
determine.
5.9 VICE PRESIDENTS
In the absence or disability of the president, the vice presidents, if
any, in order of their rank as fixed by the board of directors or, if not
ranked, a vice president designated by the board of directors, shall perform all
the duties of the president and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the president. The vice presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the board of directors, these Bylaws,
the chairman of the board or the chief executive officer.
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5.10 SECRETARY
The secretary shall keep or cause to be kept, at the principal executive
office of the corporation or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors and stockholders. The minutes shall show the time and place of
each meeting, whether regular or special (and, if special, how authorized and
the notice given), the names of those present at directors' meetings or
committee meetings, the number of shares present or represented at stockholders'
meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive
office of the corporation or at the office of the corporation's transfer agent
or registrar, as determined by resolution of the board of directors, a share
register, or a duplicate share register, showing the names of all stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates evidencing such shares, and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the board of directors required to be given by law or by
these Bylaws. He or she shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the board of directors or by these Bylaws.
5.11 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The chief financial officer shall deposit all money and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the board of directors. He or she shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
chief executive officer and directors, whenever they request it, an account of
all of his or her transactions as chief financial officer and of the financial
condition of the corporation, and shall have such other powers and perform such
other duties as may be prescribed by the board of directors or these Bylaws.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
------------------------------------------------------------------
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner permitted
by the General Corporation Law of Delaware, indemnify each of its directors and
officers against expenses (including attorneys' fees), judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an
agent of the corporation; provided, however, that the corporation may modify the
extent of such indemnification by individual contracts with its directors and
executive officers and, provided, further, that the corporation shall not be
required to indemnify any director or officer in connection with any proceeding
(or part thereof) initiated by such person unless (i) such indemnification is
expressly required to be made by law, (ii) the proceeding was authorized by the
board of directors of the corporation, (iii) such indemnification is provided by
the corporation, in its sole discretion, pursuant to the powers vested in the
corporation under the General Corporation Law of Delaware or (iv) such
indemnification is required to be made pursuant to an individual contract. For
purposes of this Section 6.1, a "director" or "officer" of the corporation
includes any person (i) who is or was a director or officer of the corporation,
(ii) who is or was serving at the request of the corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the maximum extent and in the
manner permitted by the General Corporation Law of Delaware, to indemnify each
of its employees and agents (other than directors and officers) against expenses
(including attorneys' fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the corporation. For
purposes of this Section 6.2, an "employee" or "agent" of the corporation (other
than a director or officer) includes any person (i) who is or was an employee or
agent of the corporation, (ii) who is or was serving at the request of the
corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was an employee or agent of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
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6.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.
6.4 EXPENSES
The corporation shall advance to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer, of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, prior to the final disposition of the proceeding, promptly
following request therefor, all expenses incurred by any director or officer in
connection with such proceeding upon receipt of an undertaking by or on behalf
of such person to repay said amounts if it should be determined ultimately that
such person is not entitled to be indemnified under this Bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to
Section 6.5, no advance shall be made by the corporation to an officer of the
corporation (except by reason of the fact that such officer is or was a director
of the corporation in which event this paragraph shall not apply) in any action,
suit or proceeding, whether civil, criminal, administrative or investigative, if
a determination is reasonably and promptly made (i) by the board of directors by
a majority vote of a quorum consisting of directors who were not parties to the
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, that the facts known to the decision-making party at the time
such determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the corporation
6.5 NON-EXCLUSIVITY OF RIGHTS
The rights conferred on any person by this Bylaw shall not be exclusive of
any other right which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding office.
The corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited by the
General Corporation Law of Delaware.
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6.6 SURVIVAL OF RIGHTS
The rights conferred on any person by this Bylaw shall continue as to a
person who has ceased to be a director, officer, employee or other agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
6.7 AMENDMENTS
Any repeal or modification of this Bylaw shall only be prospective and
shall not affect the rights under this Bylaw in effect at the time of the
alleged occurrence of any action or omission to act that is the cause of any
proceeding against any agent of the corporation.
ARTICLE VII
RECORDS AND REPORTS
-------------------
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at such
place or places as designated by the board of directors, keep a record of its
stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these Bylaws as amended to date,
accounting books and other records.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at
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the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
7.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director. The Court of Chancery
is hereby vested with the exclusive jurisdiction to determine whether a director
is entitled to the inspection sought. The Court may summarily order the
corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The
Court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the Court
may deem just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, the chief executive officer, the president, any
vice president, the chief financial officer, the secretary or assistant
secretary of this corporation, or any other person authorized by the board of
directors or the chief executive officer or the president or a vice president,
is authorized to vote, represent, and exercise on behalf of this corporation all
rights incident to any and all shares of any other corporation or corporations
standing in the name of this corporation. The authority herein granted may be
exercised either by such person directly or by any other person authorized to do
so by proxy or power of attorney duly executed by such person having the
authority.
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ARTICLE VII
GENERAL MATTERS
---------------
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any other lawful
action (other than action by stockholders by written consent without a meeting),
the board of directors may fix, in advance, a record date, which shall not be
more than sixty (60) days before any such action. In that case, only
stockholders of record at the close of business on the date so fixed are
entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided by law.
If the board of directors does not so fix a record date, then the record
date for determining stockholders for any such purpose shall be at the close of
business on the day on which the board adopts the applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
From time to time, the board of directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED
The board of directors, except as otherwise provided in these Bylaws, may
authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the board of directors or within the agency
power of an officer, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
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8.4 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation shall be represented by certificates, provided
that the board of directors of the corporation may provide by resolution or
resolutions that some or all of any or all classes or series of its stock shall
be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of
directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by, the chairman or vice-chairman
of the board of directors, or the chief executive officer or the president or
vice-president, and by the chief financial officer, the secretary or an
assistant secretary of such corporation representing the number of shares
registered in certificate form. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate has
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if he or
she were such officer, transfer agent or registrar at the date of issue.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.5 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock or
more than one series of any class, then the powers, the designations, the
preferences, and the relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences, and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
-23-
<PAGE>
8.6 LOST CERTIFICATES
Except as provided in this Section 8.6, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and canceled at the same time. The board of
directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the board of directors may require;
the board of directors may require indemnification of the corporation secured by
a bond or other adequate security sufficient to protect the corporation against
any claim that may be made against it, including any expense or liability, on
account of the alleged loss, theft or destruction of the certificate or the
issuance of the replacement certificate.
8.7 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the General Corporation Law of Delaware shall
govern the construction of these Bylaws. Without limiting the generality of
this provision, the singular number includes the plural, the plural number
includes the singular, and the term "person" includes both a corporation and a
natural person.
ARTICLE IX
AMENDMENTS
----------
Subject to Section 6.7 hereof the Bylaws of the corporation may be
adopted, amended or repealed and new Bylaws adopted by the affirmative vote of
stockholders holding a majority of the voting power of stock entitled to vote or
by the board of directors.
ARTICLE X
DISSOLUTION
-----------
If it should be deemed advisable in the judgment of the board of directors
of the corporation that the corporation should be dissolved, the board, after
the adoption of a resolution to that effect by a majority of the whole board at
any meeting called for that purpose, shall cause notice to be mailed to each
stockholder entitled to vote thereon of the adoption of the resolution and of a
meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the voting power of the outstanding stock of the
corporation entitled to vote thereon votes for the proposed dissolution, then a
certificate stating that the dissolution has been authorized in accordance with
the
-24-
<PAGE>
provisions of Section 275 of the General Corporation Law of Delaware and setting
forth the names and residences of the directors and officers shall be executed,
acknowledged, and filed and shall become effective in accordance with Section
103 of the General Corporation Law of Delaware. Upon such certificate's becoming
effective in accordance with Section 103 of the General Corporation Law of
Delaware, the corporation shall be dissolved.
Whenever stockholders holding a majority of the voting power of stock
entitled to vote on a dissolution consent in writing, either in person or by
duly authorized attorney, to a dissolution, no meeting of directors or
stockholders shall be necessary. The consent shall be filed and shall become
effective in accordance with Section 103 of the General Corporation Law of
Delaware. Upon such consent's becoming effective in accordance with Section 103
of the General Corporation Law of Delaware, the corporation shall be dissolved.
If the consent is signed by an attorney, then the original power of attorney or
a photocopy thereof shall be attached to and filed with the consent. The
consent filed with the Secretary of State shall have attached to it the
affidavit of the secretary or some other officer of the corporation stating that
the consent has been signed by or on behalf of all the stockholders entitled to
vote on a dissolution; in addition, there shall be attached to the consent a
certification by the secretary or some other officer of the corporation setting
forth the names and residences of the directors and officers of the corporation.
ARTICLE XI
CUSTODIAN
---------
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any stockholder, may appoint
one or more persons to be custodians and, if the corporation is insolvent, to be
receivers, of and for the corporation when:
(i) at any meeting held for the election of directors the
stockholders are so divided that they have failed to elect successors to
directors whose terms have expired or would have expired upon qualification of
their successors; or
(ii) the business of the corporation is suffering or is threatened
with irreparable injury because the directors are so divided respecting the
management of the affairs of the corporation that the required vote for action
by the board of directors cannot be obtained and the stockholders are unable to
terminate this division; or
(iii) the corporation has abandoned its business and has failed
within a reasonable time to take steps to dissolve, liquidate or distribute its
assets.
-25-
<PAGE>
11.2 DUTIES OF CUSTODIAN
The custodian shall have all the powers and title of a receiver appointed
under Section 291 of the General Corporation Law of Delaware, but the authority
of the custodian shall be to continue the business of the corporation and not to
liquidate its affairs and distribute its assets, except when the Court of
Chancery otherwise orders and except in cases arising under Sections 226(a)(3)
or 352(a)(2) of the General Corporation Law of Delaware.
-26-
<PAGE>
CERTIFICATE OF AMENDMENT
TO
BYLAWS
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of TN Technologies
Inc., a Delaware corporation (the "Company").
2. That Section 3.2 of Article III of the Company's Bylaws is hereby
amended in its entirety to read as follows:
"3.2 NUMBER AND TERM OF OFFICE
The authorized number of directors shall be five (5). An indefinite number
of directors may be fixed, or the definite number of directors may be changed,
by a duly adopted amendment to the Certificate of Incorporation or by an
amendment to this bylaw adopted by the vote or written consent of holders of a
majority of the voting power of the outstanding shares entitled to vote or by
resolution of a majority of the board of directors.
No reduction of the authorized number of directors shall have the effect of
removing any director before that director's term of office expires. If for any
cause, the directors shall not have been elected at an annual meeting, they may
be elected as soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in these Bylaws."
IN WITNESS WHEREOF, I have hereunto subscribed my name this 25th day of
November, 1998.
/s/ Steve Roberts
---------------------------
Steve Roberts
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
TO
BYLAWS
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of Modem Media . Poppe
Tyson, Inc., a Delaware corporation (the "Company").
2. That the foregoing Bylaws of the Company, as amended, are hereby
amended to change the name of the Company to "Modem Media . Poppe Tyson, Inc."
IN WITNESS WHEREOF, I have hereunto subscribed my name this 25th day of
November, 1998.
/s/ Steve Roberts
----------------------------
Steve Roberts
Secretary
-2-
<PAGE>
EXHIBIT 10.6(a)
COVENANT NOT TO COMPETE OR SOLICIT BUSINESS
-------------------------------------------
TN Technologies Holding Inc., a Delaware corporation ("Buyer") and Gerald
M. O'Connell ("Executive") enter into this Covenant Not To Compete or Solicit
Business ("Covenant") as of December 31, 1996.
WHEREAS, Buyer and Executive are parties to the Amended and Restated
Reorganization Agreement dated as of December 31, 1996 (the "Reorganization
Agreement");
WHEREAS, pursuant to the Reorganization Agreement, Buyer is acquiring (the
"Acquisition") all of the limited partnership interests in Modem Media
Advertising Limited Partnership, a Connecticut limited partnership ("MMLP"), and
all of the issued and outstanding capital stock of Modem Media, Inc., a
Connecticut corporation ("Modem Media");
WHEREAS, Executive, as a limited partner in MMLP and a shareholder of Modem
Media, will substantially and materially benefit from the Acquisition;
NOW, THEREFORE, in further consideration of the promises and mutual
covenants contained in the Employment Agreement, the Reorganization Agreement
and the Purchase Agreement and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to protect more
effectively the value of the assets and goodwill purchased by Buyer, Executive
covenants and agrees as follows:
1. COVENANT NOT TO COMPETE. Executive covenants that during the period
commencing on the effective date of the Reorganization Agreement and ending on
the later of (i) the date which is five years after the effective date of the
Reorganization Agreement or (ii) the date which is two years after the last
payment of salary pursuant to the Employment Agreement (the "Non-
Competition/Non-Solicitation Period"), either individually or in partnership or
jointly or in conjunction with any person or persons, firm, association,
syndicate, company, contractor, corporation or organization of any kind, as
principal, agent, trustee, shareholder, employee or consultant, or in any other
manner whatsoever, whether directly or indirectly, he shall not render or assist
others in rendering services to or for any person or persons, firm, association,
syndicate, company or corporation, that is engaged in any business substantially
similar to any part of:
(a) advertising services delivered through the Internet or corporate
intranets, digital communications services dedicated to marketing purposes, or
consumer database management in conjunction with marketing or advertising
services carried on by Buyer or entities in which Buyer owns 40% or more of the
ownership interests (collectively referred to as "Buyer and its Affiliates")
during the two-year period immediately preceding the date employment is
terminated;
(b) any other advertising services delivered through the Internet or
corporate intranets, digital communications services dedicated to marketing
purposes, or consumer database management in conjunction with marketing or
advertising services for which Buyer or its Affiliates has, as of the
<PAGE>
termination of such Employee's employment, formulated plans, of which Executive
is aware, to commence carrying on within 1 year after the date employment is
terminated; or
(c) any advertising services delivered through the Internet or corporate
intranets, digital communications services dedicated to marketing purposes, or
consumer database management in conjunction with marketing or advertising
services solicited by Buyer or its Affiliates with respect to clients or
potential clients of Buyer or its Affiliates.
Without limiting the foregoing, nothing herein shall prohibit Executive's
being a passive owner of not more than 5% of the outstanding stock of any class
of a corporation or other entity which is publicly traded, so long as Executive
has no active participation in the business of such corporation or other entity.
Notwithstanding anything herein to the contrary, Executive shall have no
obligations under this Section 1 or under Section 2 or 3 hereof if Buyer
breaches a material term of the Employment Agreement.
2. COVENANT NOT TO SOLICIT. Executive covenants and agrees that he will
not, and will not attempt to, at any time during the Non-Competition/Non-
Solicitation Period, directly or indirectly, induce or assist in the inducement
of:
(i) any employee or consultant of Buyer or its Affiliates away from Buyer
or its Affiliates or from the faithful discharge of such employee's or
consultant's contractual and fiduciary obligations to serve Buyer's or its
Affiliates' interest; or
(ii) any "Client" of Buyer or its Affiliates away from Buyer or its
Affiliates.
As used in this Covenant, "Client" shall extend to those persons, firms,
corporations or other entities (a) who were clients of Buyer or its Affiliates,
as is applicable, at any time during the Non-Competition/Non-Solicitation Period
and who continued to be clients at any time within the 18-month period
immediately preceding the inducement (including, without limitation, AT&T
Corporation); or (b) who were new business contacts of Buyer or its Affiliates,
as is applicable, during the Non-Competition/Non-Solicitation Period and who had
been active new business contacts at any time within a one-year period
immediately preceding the inducement.
3. NON INTERFERENCE. Executive covenants and agrees that he will not at
any time during the Non Competition/Non-Solicitation Period, directly or
indirectly, seek to cause the termination or any change in the terms of any
relationships between Buyer or its Affiliates and any supplier or vendor or
prospective supplier or vendor of Buyer or its Affiliates; provided, however,
-------- -------
that Executive shall not be precluded from utilizing any supplier or vendor.
4. DEFINITIONS. Any capitalized term used in this Covenant shall have
the meaning ascribed to it in the Reorganization Agreement, unless otherwise
defined herein.
-2-
<PAGE>
5. REMEDIES. If Executive violates any of the terms of this Covenant,
Buyer or any of its Affiliates shall be entitled to all appropriate remedies,
including an interim, interlocutory or permanent injunction or restraining order
to be issued by any competent court enjoining and restraining Executive from
such wrongful acts. It is further agreed that Buyer or any of its Affiliates
would be irreparably damaged by Executive's breach of any provision of this
Covenant, that damages for such a breach are not easily calculated, and that any
remedy at law would be inadequate. Therefore, Buyer and any of its Affiliates
shall be entitled to seek and obtain injunctive or other equitable relief
against Executive, his agents, assigns or successors for a breach of this
Covenant and without the necessity of proving actual monetary loss. It is
expressly understood between the parties that this injunctive or equitable
relief shall not be Buyer's or any of its Affiliates' exclusive remedy for
breach of this Covenant.
Should any litigation be commenced concerning any provision of this
Covenant, the prevailing party shall be entitled, in addition to such other
relief as may be granted, to its attorneys' fees and costs incurred by reason of
such litigation.
6. LEGAL ENFORCEABILITY. Any provision of this Covenant which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7. GOVERNING LAW. This Covenant shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Connecticut.
8. ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Reorganization
Agreement and the Employment Agreement constitute the entire agreement between
Buyer and Executive with respect to the subject matter hereof. This Covenant
supersedes any prior agreement made between the parties. The parties may not
amend this Covenant except by written instrument signed by each party hereto and
approved by the Board of Directors or the compensation committee of the Board of
Directors of Buyer.
-3-
<PAGE>
9. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered and
received when delivered personally (which shall be deemed to include delivery
via express courier such as Federal Express) or three days after having been
sent by registered or certified mail or upon receipt when sent by facsimile (but
only if receipt is confirmed by the addressee by a return facsimile signed by
the addressee) addressed as follows:
If to Buyer, to:
TN Technologies Holding Inc.
101 East Erie
Chicago, Illinois 60611
Facsimile: (312) 440-8070
Attention: Gregory W. Blaine
If to Executive, to: the address or facsimile number set forth below Executive's
signature on the signature page hereof.
or to such other address as such party (or if designated additional notice
recipient) may indicate by a notice delivered to the other parties hereto.
10. SUCCESSORS AND ASSIGNS. Executive acknowledges that his obligations
hereunder are unique and personal. Accordingly, Executive may not assign any of
his rights or delegate any of his duties or obligations under this Covenant.
Buyer may assign its rights, duties or obligations under this Covenant to any
person with whom it has merged or consolidated, or to whom it has transferred
all, or substantially all, of its assets.
This Covenant shall be binding upon and inure to the benefit of the
parties hereto and their permitted successors and assigns. Nothing in this
Covenant, express or implied, is intended or shall be construed to confer upon
any person other than the parties and their respective successors and assigns
permitted by this Covenant any right, remedy or claim under, or by reason of,
this Covenant.
11. WAIVER. No provisions of this Covenant shall be deemed to be waived
as a result of the failure of Buyer or its Affiliates or Executive to require
the performance of any term or condition of this Covenant or by other course of
conduct. To be effective, a waiver must be in writing, signed by all of the
parties hereto and approved by the Board of Directors or the compensation
committee of the Board of Directors of Buyer and state specifically that it is
intended to constitute a waiver of a term or breach of this Covenant. The
waiver by Buyer or its Affiliates or Executive of any term or breach of this
Covenant shall not prevent a subsequent enforcement of such term or any other
term and shall not be deemed to be a waiver of any subsequent breach.
-4-
<PAGE>
12. EFFECTIVE DATE. This Covenant is effective as of the Closing Date of
the Reorganization Agreement. If the Reorganization Agreement is not
consummated, this Covenant shall be null and void.
EXECUTIVE ACKNOWLEDGES THAT HE HAS READ, UNDERSTOOD AND ACCEPTS THE
PROVISIONS OF THIS COVENANT. HE ALSO ACKNOWLEDGES THAT HE HAS HAD THE
OPPORTUNITY TO AND HAS REVIEWED THE TERMS AND CONDITIONS OF THIS COVENANT WITH
COUNSEL.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Covenant as of
the date written above.
TN TECHNOLOGIES HOLDING INC. GERALD M. O'CONNELL
By: /s/ GREGORY W. BLAINE /s/ GERALD M. O'CONNELL
--------------------------- --------------------------------
Position: Address:
--------------------- ------------------------
Facsimile:
----------------------
-6-
<PAGE>
EXHIBIT 10.6(b)
COVENANT NOT TO COMPETE OR SOLICIT BUSINESS
-------------------------------------------
TN Technologies Holding Inc., a Delaware corporation ("Buyer") and Douglas
C. Ahlers ("Executive") enter into this Covenant Not To Compete or Solicit
Business ("Covenant") as of December 31, 1996.
WHEREAS, Buyer and Executive are parties to the Amended and Restated
Reorganization Agreement dated as of December 31, 1996 (the "Reorganization
Agreement");
WHEREAS, pursuant to the Reorganization Agreement, Buyer is acquiring (the
"Acquisition") all of the limited partnership interests in Modem Media
Advertising Limited Partnership, a Connecticut limited partnership ("MMLP"), and
all of the issued and outstanding capital stock of Modem Media, Inc., a
Connecticut corporation ("Modem Media");
WHEREAS, Executive, as a limited partner in MMLP and a shareholder of Modem
Media, will substantially and materially benefit from the Acquisition;
NOW, THEREFORE, in further consideration of the promises and mutual
covenants contained in the Employment Agreement, the Reorganization Agreement
and the Purchase Agreement and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to protect more
effectively the value of the assets and goodwill purchased by Buyer, Executive
covenants and agrees as follows:
1. COVENANT NOT TO COMPETE. Executive covenants that during the period
commencing on the effective date of the Reorganization Agreement and ending on
the later of (i) the date which is five years after the effective date of the
Reorganization Agreement or (ii) the date which is two years after the last
payment of salary pursuant to the Employment Agreement (the "Non-
Competition/Non-Solicitation Period"), either individually or in partnership or
jointly or in conjunction with any person or persons, firm, association,
syndicate, company, contractor, corporation or organization of any kind, as
principal, agent, trustee, shareholder, employee or consultant, or in any other
manner whatsoever, whether directly or indirectly, he shall not render or assist
others in rendering services to or for any person or persons, firm, association,
syndicate, company or corporation, that is engaged in any business substantially
similar to any part of:
(a) advertising services delivered through the Internet or corporate
intranets, digital communications services dedicated to marketing purposes, or
consumer database management in conjunction with marketing or advertising
services carried on by Buyer or entities in which Buyer owns 40% or more of the
ownership interests (collectively referred to as "Buyer and its Affiliates")
during the two-year period immediately preceding the date employment is
terminated;
(b) any other advertising services delivered through the Internet or
corporate intranets, digital communications services dedicated to marketing
purposes, or consumer database management in conjunction with marketing or
advertising services for which Buyer or its Affiliates has, as of the
<PAGE>
termination of such Employee's employment, formulated plans, of which Executive
is aware, to commence carrying on within 1 year after the date employment is
terminated; or
(c) any advertising services delivered through the Internet or corporate
intranets, digital communications services dedicated to marketing purposes, or
consumer database management in conjunction with marketing or advertising
services solicited by Buyer or its Affiliates with respect to clients or
potential clients of Buyer or its Affiliates.
Without limiting the foregoing, nothing herein shall prohibit Executive's
being a passive owner of not more than 5% of the outstanding stock of any class
of a corporation or other entity which is publicly traded, so long as Executive
has no active participation in the business of such corporation or other entity.
Notwithstanding anything herein to the contrary, Executive shall have no
obligations under this Section 1 or under Section 2 or 3 hereof if Buyer
breaches a material term of the Employment Agreement.
2. COVENANT NOT TO SOLICIT. Executive covenants and agrees that he will
not, and will not attempt to, at any time during the Non-Competition/Non-
Solicitation Period, directly or indirectly, induce or assist in the inducement
of:
(i) any employee or consultant of Buyer or its Affiliates away from Buyer
or its Affiliates or from the faithful discharge of such employee's or
consultant's contractual and fiduciary obligations to serve Buyer's or its
Affiliates' interest; or
(ii) any "Client" of Buyer or its Affiliates away from Buyer or its
Affiliates.
As used in this Covenant, "Client" shall extend to those persons, firms,
corporations or other entities (a) who were clients of Buyer or its Affiliates,
as is applicable, at any time during the Non-Competition/Non-Solicitation Period
and who continued to be clients at any time within the 18-month period
immediately preceding the inducement (including, without limitation, AT&T
Corporation); or (b) who were new business contacts of Buyer or its Affiliates,
as is applicable, during the Non-Competition/Non-Solicitation Period and who had
been active new business contacts at any time within a one-year period
immediately preceding the inducement.
3. NON INTERFERENCE. Executive covenants and agrees that he will not at
any time during the Non Competition/Non-Solicitation Period, directly or
indirectly, seek to cause the termination or any change in the terms of any
relationships between Buyer or its Affiliates and any supplier or vendor or
prospective supplier or vendor of Buyer or its Affiliates; provided, however,
-------- -------
that Executive shall not be precluded from utilizing any supplier or vendor.
4. DEFINITIONS. Any capitalized term used in this Covenant shall have
the meaning ascribed to it in the Reorganization Agreement, unless otherwise
defined herein.
-2-
<PAGE>
5. REMEDIES. If Executive violates any of the terms of this Covenant,
Buyer or any of its Affiliates shall be entitled to all appropriate remedies,
including an interim, interlocutory or permanent injunction or restraining order
to be issued by any competent court enjoining and restraining Executive from
such wrongful acts. It is further agreed that Buyer or any of its Affiliates
would be irreparably damaged by Executive's breach of any provision of this
Covenant, that damages for such a breach are not easily calculated, and that any
remedy at law would be inadequate. Therefore, Buyer and any of its Affiliates
shall be entitled to seek and obtain injunctive or other equitable relief
against Executive, his agents, assigns or successors for a breach of this
Covenant and without the necessity of proving actual monetary loss. It is
expressly understood between the parties that this injunctive or equitable
relief shall not be Buyer's or any of its Affiliates' exclusive remedy for
breach of this Covenant.
Should any litigation be commenced concerning any provision of this
Covenant, the prevailing party shall be entitled, in addition to such other
relief as may be granted, to its attorneys' fees and costs incurred by reason of
such litigation.
6. LEGAL ENFORCEABILITY. Any provision of this Covenant which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7. GOVERNING LAW. This Covenant shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Connecticut.
8. ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Reorganization
Agreement and the Employment Agreement constitute the entire agreement between
Buyer and Executive with respect to the subject matter hereof. This Covenant
supersedes any prior agreement made between the parties. The parties may not
amend this Covenant except by written instrument signed by each party hereto and
approved by the Board of Directors or the compensation committee of the Board of
Directors of Buyer.
-3-
<PAGE>
9. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered and
received when delivered personally (which shall be deemed to include delivery
via express courier such as Federal Express) or three days after having been
sent by registered or certified mail or upon receipt when sent by facsimile (but
only if receipt is confirmed by the addressee by a return facsimile signed by
the addressee) addressed as follows:
If to Buyer, to:
TN Technologies Holding Inc.
101 East Erie
Chicago, Illinois 60611
Facsimile: (312) 440-8070
Attention: Gregory W. Blaine
If to Executive, to: the address or facsimile number set forth below Executive's
signature on the signature page hereof.
or to such other address as such party (or if designated additional notice
recipient) may indicate by a notice delivered to the other parties hereto.
10. SUCCESSORS AND ASSIGNS. Executive acknowledges that his obligations
hereunder are unique and personal. Accordingly, Executive may not assign any of
his rights or delegate any of his duties or obligations under this Covenant.
Buyer may assign its rights, duties or obligations under this Covenant to any
person with whom it has merged or consolidated, or to whom it has transferred
all, or substantially all, of its assets.
This Covenant shall be binding upon and inure to the benefit of the
parties hereto and their permitted successors and assigns. Nothing in this
Covenant, express or implied, is intended or shall be construed to confer upon
any person other than the parties and their respective successors and assigns
permitted by this Covenant any right, remedy or claim under, or by reason of,
this Covenant.
11. WAIVER. No provisions of this Covenant shall be deemed to be waived
as a result of the failure of Buyer or its Affiliates or Executive to require
the performance of any term or condition of this Covenant or by other course of
conduct. To be effective, a waiver must be in writing, signed by all of the
parties hereto and approved by the Board of Directors or the compensation
committee of the Board of Directors of Buyer and state specifically that it is
intended to constitute a waiver of a term or breach of this Covenant. The
waiver by Buyer or its Affiliates or Executive of any term or breach of this
Covenant shall not prevent a subsequent enforcement of such term or any other
term and shall not be deemed to be a waiver of any subsequent breach.
-4-
<PAGE>
12. EFFECTIVE DATE. This Covenant is effective as of the Closing Date of
the Reorganization Agreement. If the Reorganization Agreement is not
consummated, this Covenant shall be null and void.
EXECUTIVE ACKNOWLEDGES THAT HE HAS READ, UNDERSTOOD AND ACCEPTS THE
PROVISIONS OF THIS COVENANT. HE ALSO ACKNOWLEDGES THAT HE HAS HAD THE
OPPORTUNITY TO AND HAS REVIEWED THE TERMS AND CONDITIONS OF THIS COVENANT WITH
COUNSEL.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Covenant as of
the date written above.
TN TECHNOLOGIES HOLDING INC. DOUGLAS C. AHLERS
By: /s/ GREGORY W. BLAINE /s/ DOUGLAS C. AHLERS
-------------------------- -------------------------------
Position: Address:
--------------------- -----------------------
Facsimile:
---------------------
-6-
<PAGE>
EXHIBIT 10.6(c)
COVENANT NOT TO COMPETE OR SOLICIT BUSINESS
-------------------------------------------
TN Technologies Holding Inc., a Delaware corporation ("Buyer") and Robert
C. Allen, II ("Executive") enter into this Covenant Not To Compete or Solicit
Business ("Covenant") as of December 31, 1996.
WHEREAS, Buyer and Executive are parties to the Amended and Restated
Reorganization Agreement dated as of December 31, 1996 (the "Reorganization
Agreement");
WHEREAS, pursuant to the Reorganization Agreement, Buyer is acquiring (the
"Acquisition") all of the limited partnership interests in Modem Media
Advertising Limited Partnership, a Connecticut limited partnership ("MMLP"), and
all of the issued and outstanding capital stock of Modem Media, Inc., a
Connecticut corporation ("Modem Media");
WHEREAS, Executive, as a limited partner in MMLP and a shareholder of Modem
Media, will substantially and materially benefit from the Acquisition;
NOW, THEREFORE, in further consideration of the promises and mutual
covenants contained in the Employment Agreement, the Reorganization Agreement
and the Purchase Agreement and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to protect more
effectively the value of the assets and goodwill purchased by Buyer, Executive
covenants and agrees as follows:
1. COVENANT NOT TO COMPETE. Executive covenants that during the period
commencing on the effective date of the Reorganization Agreement and ending on
the later of (i) the date which is five years after the effective date of the
Reorganization Agreement or (ii) the date which is two years after the last
payment of salary pursuant to the Employment Agreement (the "Non-
Competition/Non-Solicitation Period"), either individually or in partnership or
jointly or in conjunction with any person or persons, firm, association,
syndicate, company, contractor, corporation or organization of any kind, as
principal, agent, trustee, shareholder, employee or consultant, or in any other
manner whatsoever, whether directly or indirectly, he shall not render or assist
others in rendering services to or for any person or persons, firm, association,
syndicate, company or corporation, that is engaged in any business substantially
similar to any part of:
(a) advertising services delivered through the Internet or corporate
intranets, digital communications services dedicated to marketing purposes, or
consumer database management in conjunction with marketing or advertising
services carried on by Buyer or entities in which Buyer owns 40% or more of the
ownership interests (collectively referred to as "Buyer and its Affiliates")
during the two-year period immediately preceding the date employment is
terminated;
(b) any other advertising services delivered through the Internet or
corporate intranets, digital communications services dedicated to marketing
purposes, or consumer database management in conjunction with marketing or
advertising services for which Buyer or its Affiliates has, as of the
<PAGE>
termination of such Employee's employment, formulated plans, of which Executive
is aware, to commence carrying on within 1 year after the date employment is
terminated; or
(c) any advertising services delivered through the Internet or corporate
intranets, digital communications services dedicated to marketing purposes, or
consumer database management in conjunction with marketing or advertising
services solicited by Buyer or its Affiliates with respect to clients or
potential clients of Buyer or its Affiliates.
Without limiting the foregoing, nothing herein shall prohibit Executive's
being a passive owner of not more than 5% of the outstanding stock of any class
of a corporation or other entity which is publicly traded, so long as Executive
has no active participation in the business of such corporation or other entity.
Notwithstanding anything herein to the contrary, Executive shall have no
obligations under this Section 1 or under Section 2 or 3 hereof if Buyer
breaches a material term of the Employment Agreement.
2. COVENANT NOT TO SOLICIT. Executive covenants and agrees that he will
not, and will not attempt to, at any time during the Non-Competition/Non-
Solicitation Period, directly or indirectly, induce or assist in the inducement
of:
(i) any employee or consultant of Buyer or its Affiliates away from Buyer
or its Affiliates or from the faithful discharge of such employee's or
consultant's contractual and fiduciary obligations to serve Buyer's or its
Affiliates' interest; or
(ii) any "Client" of Buyer or its Affiliates away from Buyer or its
Affiliates.
As used in this Covenant, "Client" shall extend to those persons, firms,
corporations or other entities (a) who were clients of Buyer or its Affiliates,
as is applicable, at any time during the Non-Competition/Non-Solicitation Period
and who continued to be clients at any time within the 18-month period
immediately preceding the inducement (including, without limitation, AT&T
Corporation); or (b) who were new business contacts of Buyer or its Affiliates,
as is applicable, during the Non-Competition/Non-Solicitation Period and who had
been active new business contacts at any time within a one-year period
immediately preceding the inducement.
3. NON INTERFERENCE. Executive covenants and agrees that he will not at
any time during the Non Competition/Non-Solicitation Period, directly or
indirectly, seek to cause the termination or any change in the terms of any
relationships between Buyer or its Affiliates and any supplier or vendor or
prospective supplier or vendor of Buyer or its Affiliates; provided, however,
-------- -------
that Executive shall not be precluded from utilizing any supplier or vendor.
4. DEFINITIONS. Any capitalized term used in this Covenant shall have
the meaning ascribed to it in the Reorganization Agreement, unless otherwise
defined herein.
-2-
<PAGE>
5. REMEDIES. If Executive violates any of the terms of this Covenant,
Buyer or any of its Affiliates shall be entitled to all appropriate remedies,
including an interim, interlocutory or permanent injunction or restraining order
to be issued by any competent court enjoining and restraining Executive from
such wrongful acts. It is further agreed that Buyer or any of its Affiliates
would be irreparably damaged by Executive's breach of any provision of this
Covenant, that damages for such a breach are not easily calculated, and that any
remedy at law would be inadequate. Therefore, Buyer and any of its Affiliates
shall be entitled to seek and obtain injunctive or other equitable relief
against Executive, his agents, assigns or successors for a breach of this
Covenant and without the necessity of proving actual monetary loss. It is
expressly understood between the parties that this injunctive or equitable
relief shall not be Buyer's or any of its Affiliates' exclusive remedy for
breach of this Covenant.
Should any litigation be commenced concerning any provision of this
Covenant, the prevailing party shall be entitled, in addition to such other
relief as may be granted, to its attorneys' fees and costs incurred by reason of
such litigation.
6. LEGAL ENFORCEABILITY. Any provision of this Covenant which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7. GOVERNING LAW. This Covenant shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Connecticut.
8. ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Reorganization
Agreement and the Employment Agreement constitute the entire agreement between
Buyer and Executive with respect to the subject matter hereof. This Covenant
supersedes any prior agreement made between the parties. The parties may not
amend this Covenant except by written instrument signed by each party hereto and
approved by the Board of Directors or the compensation committee of the Board of
Directors of Buyer.
-3-
<PAGE>
9. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered and
received when delivered personally (which shall be deemed to include delivery
via express courier such as Federal Express) or three days after having been
sent by registered or certified mail or upon receipt when sent by facsimile (but
only if receipt is confirmed by the addressee by a return facsimile signed by
the addressee) addressed as follows:
If to Buyer, to:
TN Technologies Holding Inc.
101 East Erie
Chicago, Illinois 60611
Facsimile: (312) 440-8070
Attention: Gregory W. Blaine
If to Executive, to: the address or facsimile number set forth below Executive's
signature on the signature page hereof.
or to such other address as such party (or if designated additional notice
recipient) may indicate by a notice delivered to the other parties hereto.
10. SUCCESSORS AND ASSIGNS. Executive acknowledges that his obligations
hereunder are unique and personal. Accordingly, Executive may not assign any of
his rights or delegate any of his duties or obligations under this Covenant.
Buyer may assign its rights, duties or obligations under this Covenant to any
person with whom it has merged or consolidated, or to whom it has transferred
all, or substantially all, of its assets.
This Covenant shall be binding upon and inure to the benefit of the
parties hereto and their permitted successors and assigns. Nothing in this
Covenant, express or implied, is intended or shall be construed to confer upon
any person other than the parties and their respective successors and assigns
permitted by this Covenant any right, remedy or claim under, or by reason of,
this Covenant.
11. WAIVER. No provisions of this Covenant shall be deemed to be waived
as a result of the failure of Buyer or its Affiliates or Executive to require
the performance of any term or condition of this Covenant or by other course of
conduct. To be effective, a waiver must be in writing, signed by all of the
parties hereto and approved by the Board of Directors or the compensation
committee of the Board of Directors of Buyer and state specifically that it is
intended to constitute a waiver of a term or breach of this Covenant. The
waiver by Buyer or its Affiliates or Executive of any term or breach of this
Covenant shall not prevent a subsequent enforcement of such term or any other
term and shall not be deemed to be a waiver of any subsequent breach.
-4-
<PAGE>
12. EFFECTIVE DATE. This Covenant is effective as of the Closing Date of
the Reorganization Agreement. If the Reorganization Agreement is not
consummated, this Covenant shall be null and void.
EXECUTIVE ACKNOWLEDGES THAT HE HAS READ, UNDERSTOOD AND ACCEPTS THE
PROVISIONS OF THIS COVENANT. HE ALSO ACKNOWLEDGES THAT HE HAS HAD THE
OPPORTUNITY TO AND HAS REVIEWED THE TERMS AND CONDITIONS OF THIS COVENANT WITH
COUNSEL.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Covenant as of
the date written above.
TN TECHNOLOGIES HOLDING INC. ROBERT C. ALLEN, II
By: /s/ GREGORY W. BLAINE /s/ ROBERT C. ALLEN, II
--------------------------- -------------------------------
Position: Address:
--------------------- ------------------------
Facsimile:
----------------------
-6-
<PAGE>
EXHIBIT 10.7(a)
RELATIONSHIP TECHNOLOGY GROUP
November 14, 1996
Mr. Steven Roberts
4737 Prestwick Drive
Manlius, NY 13104
Dear Steven:
We are pleased to offer you the position of Chief Operating Officer with the
Relationship Technology Group, reporting to Doug Ahlers, President.
We have considered the challenge and opportunity offered by working in a fast
paced environment and believe you will be more than able to meet the goals of
the Relationship Technology Group. In accepting a position with the Company,
you agree that the employment relationship between the Company and you is an at-
will relationship and that the employment and compensation can be terminated,
with or without cause, and with or without notice, at any time, at the option of
either the Company or you.
The following confirms the specific agreements regarding your compensation if
you accept this position of Chief Operating Officer with the Relationship
Technology Group.
. Your annual base salary on your start date will be $150,000.00.
. When you start with the Relationship Technology Group, or when TN
Technologies files an IPO, whichever comes later, you will receive stock
options with a market value at the date of grant equal to 80% of your
salary. On your first anniversary of employment with the Relationship
Technology Group, you will receive stock options with a market value at
the date of grant equivalent to 100% of your salary.
. To compensate you for the increased cost of a mortgage in the general
area of Westport, CT, we agree to pay you an additional $2,000 per
month. This additional $2,000 will be divided into two monthly payments
and distributed in each semi-monthly paycheck.
<PAGE>
Page 2 (cont'd.)
November 14, 1996
. This mortgage differential payment will begin once you obtain a new
mortgage. If your employment with the Relationship Technology Group
terminates for any reason, this mortgage differential payment will
cease with your final paycheck.
. The mortgage differential payment will have no bearing on the
calculation of any salary increases, merit bonuses or any other salary
based calculations which you may earn during your employment with the
Relationship Technology Group. Accordingly, even though your base
salary may increase, the mortgage differential payment will remain the
same.
. In order to begin the mortgage differential payment process you must
submit to the Relationship Technology Group supporting paperwork for
your current mortgage and for your new mortgage.
Relationship Technology Group has a forty (40) hour work week, Monday through
Friday. The work day can be flexed one (1) hour between 7:00 a.m. and 7:00 p.m.
The responsibilities that are associated with the Chief Operating Officer
position are such that it may require the investment of additional time to
successfully meet deadlines and demands.
Steven, we are looking forward to your joining the Relationship Technology Group
and playing a key role in our continued success. Please acknowledge your
acceptance by signing the copy of your offer letter and confidentiality
agreement and returning them to me in the enclosed envelope. If you have any
questions or concerns, please give me a call.
Best Regards,
/s/ Marilyn L. Fidler Accepted By: /s/ Steven Roberts
Marilyn L. Fidler ---------------------------
Director of Human Resources
Date: December 2, 1996
cc: Doug Ahlers --------------------------------
<PAGE>
EXHIBIT 10.7(b)
AGREEMENT
---------
This Agreement is entered into by and between STEVEN ROBERTS ("Employee") and
MODEM MEDIA ADVERTISING LIMITED PARTNERSHIP ("Employer" or "Company").
NOW, THEREFORE, in consideration of Employee's employment, Employee and Employer
agree as follows:
I. NONCOMPETITION
--------------
A. Employee agrees not to engage in any Competitive Activity during
a period of one year following the termination of his employment or his
voluntary resignation from employment. For purposes of this Agreement,
"Competitive Activity" shall mean: (i) the providing of services similar to
those provided by Employer, other than on the Employer's behalf, to any Client
for whom the Employer performed substantial services during the two-year period
immediately preceding the termination of Employee's employment or Employee's
voluntary resignation (ii) the solicitation or inducement of any employee to
leave the employ of the Employer or the hiring of any such employee; or (iii)
the request or advisement to any Client of the Employer to withdraw, curtail or
cancel its business with the Employer.
B. As used in this Agreement the term "Client" shall also include
any prospective client to whom a presentation (or similar offering of services)
has been made by the Employer during the one-year period immediately preceding
the termination of Employee's employment or Employee's voluntary resignation,
and Employee has had access to Confidential Information concerning such
prospective client or such presentation.
II. CONFIDENTIALITY
---------------
A. Employee will not disclose at any time, whether while employed or
thereafter, any trade or business secrets or any Confidential Information about
the business of Employer or its subsidiaries, its parent, or its affiliates
except as shall be required in the proper conduct of Employer's business.
Employee understands and acknowledges that he will gain valuable training
relating to the Company's operations, finances, customers, services and other
products and methods. He understands that he will possess or have access to
become aware of through these lists and/or through other Company employees,
information relating to the requirements of the Company's customers, the types
of services and other products utilized, their ability to pay, preferences as to
service frequency and times for service, the identity of those authorizing
service and the identity of actual users, leads to other customers and users,
and the Company's method of finances, operations, and selling and promoting its
services and other products, its prices, and plans, all of which lists and
information he acknowledges as competitively sensitive and as constituting the
Company's Confidential Information.
<PAGE>
B. Employee therefore agrees that, while in the Company's employ or
at any time thereafter, he will treat and hold all such knowledge and
information as the Company's Confidential Information, and will not divulge it
to any person or entity outside the Company, or not engaged to render services
to the Company, except with the prior written consent of an officer authorized
to act in the matter by the Company. "Confidential Information" shall include,
without limitation, trade secrets, information relating to any inventions,
processes, formulae, plans, devices, compilations of information, methods of
distribution, customers, client relationships, or marketing strategies of the
Company, its divisions, subsidiaries, and affiliates. Employee will not copy,
take or retain any documents containing such Confidential Information, nor will
he disclose or use the Confidential Information he gained during the course of
his employment with the Company.
C. This Agreement shall be in addition to, and not in limitation or
derogation of, any obligations otherwise imposed by law or by separate agreement
upon Employee. Employer shall not be held liable for any damages resulting from
any breach by Employee of an obligations imposed by separate agreement upon
Employee.
III. PROPRIETARY RIGHTS
------------------
A. Employee agrees that Employer shall have all rights including
international property rights in: all tests, inventions, developments and
discoveries, whether or not patentable, and all suggestions, proposals, computer
programs and writings, including any copyright interests, therein, which
Employee authors, conceives or makes, either solely or jointly with others
during his employment with Employer which relate to any subject matter with
which Employee's work for Employer may be concerned or involve the use of the
time, equipment, materials or facilities of Employer.
B. Employee will disclose to Employer all ideas, inventions,
improvements, discoveries, and writings based on Confidential Information as
defined above within one year thereafter, if such inventions or writings relate
to the subject of Employee's work for Employer.
IV. COOPERATION
-----------
Employee will, during the term of his employment and thereafter, at
the request of Employer and without expense to Employer, execute all documents
and take all actions as may be necessary in order to assign all rights to or
otherwise vest good title to Employer in the property and proprietary rights
described in Section III.
V. SEVERABILITY
------------
The invalidity or nonenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement. To the fullest extent permitted by law, the provisions of this
Agreement shall be construed as if the geographic or business scope or the
duration of such provision or other basis on which such provision has been
challenged had been more narrowly drafted so as not to be invalid or
unenforceable.
<PAGE>
VI. INJUNCTIVE RELIEF
-----------------
In the event of a breach by Employee of the terms of this Agreement,
Employer shall be entitled to institute legal proceedings to obtain damages for
any such breach, or to enforce the specific performance of this Agreement by
Employee and to enjoin Employee from any further violations and to exercise such
remedies cumulatively or in conjunction with all other rights and remedies
provided by law. Employee acknowledges, however, that the remedies at law for
any breach of the provisions of this Agreement may be inadequate and that the
Employer shall be entitled to injunctive relief against Employee in the event of
any breach. Employer shall be entitled to attorneys' fees and costs in any
successful action to enforce any section of this Agreement.
/s/ Steven Roberts
__________________________________
Steven Roberts
__________________________________
Modem Media Advertising Limited Partnership
<PAGE>
Exhibit 10.8
MODEM MEDIA . POPPE TYSON, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of this ____ day
of ____________, 1998 by and between Modem Media . Poppe Tyson, Inc., a
Delaware corporation (the "Company"), and ________________ Indemnitee").
WHEREAS, the Company and Indemnitee recognize the increasing difficulty in
obtaining directors' and officers' liability insurance, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting officers and directors
to expensive litigation risks at the same time as the availability and coverage
of liability insurance has been severely limited; and
WHEREAS, the Company desires to attract and retain the services of highly
qualified individuals such as Indemnitee to serve as officers and directors of
the Company and to indemnify its officers and directors so as to provide them
with the maximum protection permitted by law.
NOW THEREFORE, in consideration for Indemnitee's services as an officer or
director of the Company, the Company and Indemnitee hereby agree as follows:
1. Indemnification.
---------------
(a) Third Party Proceedings. The Company shall indemnify Indemnitee
-----------------------
if Indemnitee is or was a party or is threatened to be made a party to any
threatened, pending or completed action, suit, proceeding or any alternative
dispute resolution mechanism, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company) by reason
of the fact that Indemnitee is or was a director, officer, employee or agent of
the Company, or any subsidiary of the Company, by reason of any action or
inaction on the part of Indemnitee while an officer or director or by reason of
the fact that Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection with such
action, suit or proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause
<PAGE>
to believe Indemnitee's conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that Indemnitee's conduct was unlawful.
(b) Proceedings By or in the Right of the Company. The Company
---------------------------------------------
shall indemnify Indemnitee if Indemnitee was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or
in the right of the Company or any subsidiary of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any subsidiary of the
Company, by reason of any action or inaction on the part of Indemnitee while
an officer or director or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) and, to the fullest
extent permitted by law, amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
action or suit if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification shall be made in respect of any claim,
issue or matter as to which Indemnitee shall have been adjudged to be liable
to the Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery of the
State of Delaware or such other court shall deem proper.
(c) Mandatory Payment of Expenses. To the extent that Indemnitee
-----------------------------
has been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in Subsections (a) and (b) of this Section 1, or in
defense of any claim, issue or matter therein, Indemnitee shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by Indemnitee in connection therewith.
2. Agreement to Serve. In consideration of the protection afforded by
------------------
this Agreement, if Indemnitee is a director of the Company, he or she agrees to
serve at least for the six months after the effective date of this Agreement as
a director and not to resign voluntarily during such period without the written
consent of a majority of the Board of Directors. If Indemnitee is an officer of
the Company not serving under an employment contract, he or she agrees to serve
in such capacity at least for the balance of the current fiscal year of the
Company
-2-
<PAGE>
and not to resign voluntarily during such period without the written consent
of a majority of the Board of Directors. Following the applicable period set
forth above, Indemnitee agrees to continue to serve in such capacity at the
will of the Company (or under separate agreement, if such agreement exists) so
long as he or she is duly appointed or elected and qualified in accordance
with the applicable provisions of the Bylaws of the Company or any subsidiary
of the Company or until such time as he or she tenders his or her resignation
in writing. Nothing contained in this Agreement is intended to create in
Indemnitee any right to continued employment.
3. Expenses; Indemnification Procedure.
-----------------------------------
(a) Advancement of Expenses. The Company shall advance all expenses
-----------------------
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of any civil or criminal action, suit or proceeding referenced in
Section 1(a) or (b) hereof (but not amounts actually paid in settlement of any
such action, suit or proceeding). Indemnitee hereby undertakes to repay such
amounts advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid by the
Company to Indemnitee within thirty (30) days following delivery of a written
request therefor by Indemnitee to the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
--------------------------------
condition precedent to his or her right to be indemnified under this Agreement,
give the Company notice in writing as soon as practicable of any claim made
against Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the President of the
Company at the address shown on the signature page of this Agreement (or such
other address as the Company shall designate in writing to Indemnitee). Notice
shall be deemed received three business days after the date postmarked if sent
by domestic certified or registered mail, properly addressed; or five business
days if sent by airmail to a country outside of North America; otherwise notice
shall be deemed received when such notice shall actually be received by the
Company. In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power.
(c) Procedure. Any indemnification and advances provided for in
---------
Section 1 and this Section 3 shall be made no later than thirty (30) days after
receipt of the written request of Indemnitee. If a claim under this Agreement,
under any statute, or under any provision of the Company's Certificate of
Incorporation or Bylaws, providing for indemnification, is not paid in full by
the Company within thirty (30) days after a written request for payment thereof
has first been received by the Company, Indemnitee may, but need not, at any
time thereafter, bring an action against the Company to recover the unpaid
amount of the claim and, subject to Section 13
-3-
<PAGE>
of this Agreement, Indemnitee shall also be entitled to be paid for the
expenses (including attorneys' fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce a claim
for expenses incurred in connection with any action, suit or proceeding in
advance of its final disposition) that Indemnitee has not met the standards of
conduct which make it permissible under applicable law for the Company to
indemnify Indemnitee for the amount claimed. However, Indemnitee shall be
entitled to receive interim payments of expenses pursuant to Subsection 3(a)
unless and until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. It is the parties'
intention that if the Company contests Indemnitee's right to indemnification,
the question of Indemnitee's right to indemnification shall be for the court
to decide, and neither the failure of the Company (including its Board of
Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct required by applicable
law, nor an actual determination by the Company (including it Board of
Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its stockholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that Indemnitee has
or has not met the applicable standard of conduct.
(d) Notice to Insurers. If, at the time of the receipt of a notice
------------------
of a claim pursuant to Section 3(b) hereof, the Company has director and
officer liability insurance in effect, the Company shall give prompt notice of
the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be
--------------------
obligated under Section 3(a) hereof to advance the expenses of any proceeding
against Indemnitee, the Company, if appropriate, shall be entitled to assume
the defense of such proceeding, with counsel approved by Indemnitee, upon the
delivery to Indemnitee of written notice of its election to request that the
Company advance expenses to Indemnitee. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by
the Company, the Company shall not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same proceeding, provided that (i) Indemnitee shall have the
right to employ his or her own counsel in any such proceeding at Indemnitee's
expense; and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there may be a material conflict of interest between the
Company and Indemnitee in the conduct of any such defense, or (C) the Company
-4-
<PAGE>
shall not, in fact, have employed counsel to assume the defense of such
proceeding, then the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company.
4. Additional Indemnification Rights; Nonexclusivity.
-------------------------------------------------
(a) Scope. Notwithstanding any other provision of this Agreement,
-----
the Company hereby agrees to indemnify Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the
Company's Certificate of Incorporation, the Company's Bylaws or by statute. In
the event of any change, after the date of this Agreement, in any applicable
law, statute, or rule which expands the right of a Delaware corporation to
indemnify a member of its board of directors or an officer, such changes shall
be, ipso facto, within the purview of Indemnitee's rights and Company's
obligations, under this Agreement. In the event of any change in any
applicable law, statute or rule which narrows the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
such changes, to the extent not otherwise required by such law, statute or
rule to be applied to this Agreement shall have no effect on this Agreement or
the parties' rights and obligations hereunder.
(b) Nonexclusivity. The indemnification provided by this Agreement
--------------
shall not be deemed exclusive of any rights to which Indemnitee may be entitled
under the Company's Certificate of Incorporation, its Bylaws, any agreement, any
vote of stockholders or disinterested Directors, the General Corporation Law of
the State of Delaware, or otherwise, both as to action in Indemnitee's official
capacity and as to action in another capacity while holding such office. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity even
though he or she may have ceased to serve in such capacity at the time of any
action, suit or other covered proceeding.
5. Partial Indemnification. If Indemnitee is entitled under any
-----------------------
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred by him or her in the investigation, defense, appeal or settlement of
any civil or criminal action, suit or proceeding, but not, however, for the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion of such expenses, judgments, fines or penalties to which Indemnitee
is entitled.
6. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
----------------------
that in certain instances, Federal law or applicable public policy may prohibit
the Company from indemnifying its directors and officers under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of
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indemnification to a court in certain circumstances for a determination of the
Company's right under public policy to indemnify Indemnitee.
7. Officer and Director Liability Insurance. The Company shall, from
----------------------------------------
time to time, make a good faith determination whether or not it is practicable
for the Company to obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors of the
Company with coverage for losses from wrongful acts, or to ensure the Company's
performance of its indemnification obligations under this Agreement. Among
other considerations, the Company will weigh the costs of obtaining such
insurance coverage against the protection afforded by such coverage. In all
policies of director and officer liability insurance, Indemnitee shall be named
as an insured in such a manner as to provide Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Company's
directors, if Indemnitee is a director; or the most favorably insured of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer. Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain such insurance if the Company determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or if Indemnitee is covered by similar insurance
maintained by a subsidiary or parent of the Company.
8. Severability. Nothing in this Agreement is intended to require or
------------
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 8. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
9. Exceptions. Any other provision herein to the contrary
-----------
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance
------------------------------
expenses to Indemnitee with respect to proceedings or claims initiated or
brought voluntarily by Indemnitee and not by way of defense, except with
respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise
as required under Section 145 of the Delaware General Corporation Law, but
such indemnification
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or advancement of expenses may be provided by the Company in specific cases if
the Board of Directors has approved the initiation or bringing of such suit;
or
(b) Lack of Good Faith. To indemnify Indemnitee for any expenses
------------------
incurred by the Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Insured Claims. To indemnify Indemnitee for expenses or
--------------
liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) which
have been paid directly to Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the Company, its
parent or any of its subsidiaries; or
(d) Claims Under Section 16(b). To indemnify Indemnitee for
--------------------------
expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
10. Construction of Certain Phrases.
-------------------------------
(a) For purposes of this Agreement, references to the "Company"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger with the Company, which constituent corporation, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, Indemnitee
shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have
with respect to such constituent corporation if its separate existence had
continued.
(b) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; and references to "serving
at the request of the Company" shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants, or beneficiaries; and if Indemnitee
acted in good faith and
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<PAGE>
in a manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnitee shall
be deemed to have acted in a manner "not opposed to the best interests of the
Company" as referred to in this Agreement.
11. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall constitute an original.
12. Successors and Assigns. This Agreement shall be binding upon the
----------------------
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
13. Attorneys' Fees. In the event that any action is instituted by
---------------
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court of competent jurisdiction determines
that each of the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement or to enforce
or interpret any of the terms of this Agreement, Indemnitee shall be entitled to
be paid all court costs and expenses, including attorneys' fees, incurred by
Indemnitee in defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
14. Notice. Except as provided in Section 3(b), all notices, requests,
------
demands and other communications under this Agreement shall be in writing and
shall be deemed duly given (i) if delivered by hand and receipted for by the
party addressee on the date of such receipt, or (ii) if mailed by domestic
certified or registered mail with postage prepaid, on the third business day
after the date postmarked. Addresses for notice to either party are as shown on
the signature page of this Agreement, or as subsequently modified by written
notice.
15. Consent to Jurisdiction. The Company and Indemnitee each hereby
-----------------------
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
16. Choice of Law. This Agreement shall be governed by and its provisions
-------------
construed in accordance with the laws of the State of Delaware, as applied to
contracts between
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<PAGE>
Delaware residents entered into and to be performed entirely within Delaware
without regard to the conflict of law principles thereof.
17. Period of Limitations. No legal action shall be brought and no cause
---------------------
of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two-year period; provided, however, that if any shorter
-------- -------
period of limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.
18. Subrogation. In the event of payment under this Agreement, the
-----------
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
19. Amendment and Termination. No amendment, modification, termination or
-------------------------
cancellation of this Agreement shall be effective unless it is in writing signed
by both of the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver.
20. Integration and Entire Agreement. This Agreement sets forth the
--------------------------------
entire understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
MODEM MEDIA . POPPE TYSON, INC.
-------------------------------
Address: 228 Saugatuck Avenue
Westport, CT 06880
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AGREED TO AND ACCEPTED:
INDEMNITEE:
- -------------------------------
- -------------------------------
(signature)
Address:
- -------------------------------
- -------------------------------
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EXHIBIT 21.1
SUBSIDIARIES OF THE REGISTRANT
1. Modem Media . Poppe Tyson, Inc. (Canada)
2. TN Technologies Ltd. (Hong Kong)
3. Modem Media . Poppe Tyson (Hong Kong) Limited
4. TN Technologies Ltd. (UK)
5. Poppe Tyson (Europe) Ltd. (UK)
