<PAGE>
As filed with the Securities and Exchange Commission on June 25, 1999
Registration Statement No. 333-77917
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------
VOYAGER.NET, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
Delaware 7389 38-3431501
(State or Other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction Classification Code Number) Identification No.)
of Incorporation or
Organization)
</TABLE>
----------
4660 S. Hagadorn Road, Suite 320
East Lansing, MI 48823
(517) 324-8940
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive office)
----------
Christopher P. Torto
President and Chief Executive Officer
Voyager.net, Inc.
4660 S. Hagadorn Road, Suite 320
East Lansing, MI 48823
(517) 324-8940
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------
Copies to:
David F. Dietz, P.C. Mark G. Borden, Esq.
John B. Steele, Esq. Thomas L. Barrette, Jr., Esq.
Goodwin, Procter & Hoar LLP Hale and Dorr LLP
Exchange Place 60 State Street
Boston, Massachusetts 02109-2881 Boston, Massachusetts 02109
(617) 570-1000 (617) 526-6000
----------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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, 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [_]
----------
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 SEC, acting pursuant to Section
8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement on Form S-3 is being
filed for the purpose of filing certain exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses payable by us in
connection with the offering (excluding underwriting discounts and
commissions):
<TABLE>
<CAPTION>
Nature of Expense Amount
----------------- ----------
<S> <C>
SEC Registration Fee............................................. $ 35,250
NASD Filing Fee.................................................. 12,000
Nasdaq National Market Listing Fee............................... 95,000
Accounting Fees and Expenses..................................... 585,000
Legal Fees and Expenses.......................................... 500,000
Printing Expenses................................................ 250,000
Blue Sky Qualification Fees and Expenses......................... 15,000
Transfer Agent's Fee............................................. 10,000
Miscellaneous.................................................... 47,750
----------
TOTAL.......................................................... $1,550,000
==========
</TABLE>
The amounts set forth above, except for the Securities and Exchange
Commission, NASD Regulation, Inc. and Nasdaq National Market fees, are in each
case estimated.
- ---------------------
* To be completed by amendment.
Item 14. Indemnification of Directors and Officers
In accordance with Section 145 of the Delaware General Corporation Law,
Article VII of our second amended and restated certificate of incorporation
provides that no director of Voyager.net be personally liable to Voyager.net,
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to Voyager.net or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) in respect of unlawful dividend payments or stock redemptions or
repurchases, or (4) for any transaction from which the director derived an
improper personal benefit. In addition, our first amended and restated
certificate of incorporation provides that if the Delaware General Corporation
Law is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Article V of our amended and restated by-laws provides for indemnification
by Voyager.net of its officers and certain non-officer employees under certain
circumstances against expenses, including attorneys fees, judgments, fines and
amounts paid in settlement, reasonably incurred in connection with the defense
or settlement of any threatened, pending or completed legal proceeding in which
any such person is involved by reason of the fact that such person is or was an
officer or employee of the registrant if such person acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the best
interests of Voyager.net, and, with respect to criminal actions or proceedings,
if such person had no reasonable cause to believe his or her conduct was
unlawful.
We have also entered into indemnification agreements with each of our
directors. These agreements provide that we indemnify each of our directors to
the fullest extent permitted under law and our by-laws, and provide for the
advancement of expenses to each director. We have also obtained directors' and
officers' insurance against certain liabilities.
II-1
<PAGE>
Item 15. Recent Sales of Unregistered Securities
Set forth in chronological order below is information regarding the number
of shares of capital stock issued by Voyager.net during the past three years.
Also included is the consideration, if any, received by Voyager.net for the
shares. There was no public offering in any transaction and we believe that
each transaction was exempt from the registration requirements of the
Securities Act of 1933, as amended, by reason of Section 4(2) thereof, based
on the private nature of the transactions and the financial sophistication of
the purchasers, all of whom had access to complete information concerning
Voyager.net and acquired the securities for investment and not with a view to
the distribution thereof. In addition, we believe that the transactions
described below with respect to issuances and option grants to our employees
and consultants were exempt from the registration requirements of said Act by
reason of Section 4(2) of the Act or Rule 701 promulgated thereunder. The
share numbers and per share values set forth below do not give effect to the
-for-1 stock split effected in connection with this offering. The share
numbers and per share values set forth below with respect to Voyager
Information Networks, Inc. do not give effect to the 20-for-1 stock split
effected in September 1998.
. On August 7, 1997, Voyager sold an aggregate 25,000 shares of series A
preferred stock and 424,900 shares of common stock for an aggregate
purchase price of $504,249 and 2,696 shares of preferred shares to
Media/Communications Partners II Limited Partnership and
Media/Communications Investors Limited Partnership, respectively
. On August 7, 1997, Voyager sold an aggregate 53,416 shares of restricted
common stock under its 1997 Stock Option and Incentive Plan, including
sales of 41,568, 5,924 and 5,924 shares to Messrs. Friedly, Baird and
Heinze, respectively, for aggregate consideration of $415.68, $59.24 and
$59.24, respectively
. On January 15, 1998, Voyager sold 6,003 shares of restricted common stock
to Alan Baird, a consultant to Voyager, under its 1997 Stock Option and
Incentive Plan for aggregate consideration of $60.03
. On January 15, 1998, Voyager granted options to purchase an aggregate
91,984 shares of common stock at a per share exercise price of $.01 to
certain of its employees, including options to purchase 67,984 shares of
common stock to Mr. Williams, pursuant to its 1997 Stock Option and
Incentive Plan
. On February 20, 1998, Voyager granted Mr. Torto options to purchase 67,984
shares of common stock at a per share exercise price of $.01 pursuant to
its 1997 Stock Option and Incentive Plan
. On July 31, 1998, Voyager sold an aggregate 15,000 shares of series A
preferred stock and an aggregate 182,100 shares of common stock, and issued
demand promissory notes in the aggregate principal amount of $2,800,000,
for an aggregate purchase price of $4,301,821 to Media/Communications
Partners II Limited Partnership and Media/Communications Investors Limited
Partnership
. On September 23, 1998, we granted options to purchase an aggregate
1,520,000 shares of our common stock at a per share exercise price of
$.0005 to certain of our employees pursuant to our 1998 Stock Option and
Incentive Plan, including options to purchase 1,400,000 shares of common
stock to Mr. Williams
. On September 23, 1998, we sold an aggregate 33,657 shares of series A
preferred stock and an aggregate 360,000 shares of common stock to
Media/Communications Partners II Limited Partnership and
Media/Communications Investors Limited Partnership for an aggregate
purchase price of $533,513 in cash and cancellation of demand promissory
notes in the aggregate principal amount, plus interest, of $2,832,526
. On September 23, 1998, we sold 1,400,000 shares of restricted common stock
to Mr. Torto under our 1998 Stock Option and Incentive Plan for aggregate
consideration of $700
. On October 2, 1998, we sold an aggregate 400,000 shares of restricted
common stock for an aggregate purchase price of $200 under the 1998 Stock
Option and Incentive Plan, including sales of 200,000, 100,000 and 100,000
shares to Messrs. Torto, Shires and Michaels, respectively, for aggregate
consideration of $100, $50 and $50, respectively
II-2
<PAGE>
. On January 1, 1999, we granted options to purchase an aggregate 135,000
shares of common stock at a per share exercise price of $6.00 to certain of
our employees pursuant to our 1998 Stock Option and Incentive Plan
. On January 11, 1999, we sold 300,000 shares of restricted common stock to
Mr. deFaria under our 1998 Stock Option and Incentive Plan for aggregate
consideration of $1.8 million
. On January 11, 1999, we sold 700,000 shares of restricted common stock to
Mr. Friedly under our 1998 Stock Option and Incentive Plan for aggregate
consideration of $4.2 million
. On May 3, 1999, we sold an aggregate 6,667 shares of series A preferred
stock for an aggregate $666,700, including 5,187, 740, and 740 shares to
Messrs. Friedly, Baird and Heinze, respectively, for aggregate
consideration of $518,700, $74,000 and $74,000, respectively
Item 16. Exhibits and Financial Statement Schedules
<TABLE>
<C> <S>
(a) Exhibits
1.1 Form of Underwriting Agreement.
**2.1 Stock Exchange Agreement dated as of September 23, 1998, by and among
the Registrant and the parties named therein (excluding schedules,
which the Registrant agrees to furnish supplementally to the Commission
upon request).
**2.2 Stock Purchase Agreement dated as of September 23, 1998 by and among
the Registrant and the investors identified therein (excluding
schedules and exhibits, which the Registrant agrees to furnish
supplementally to the Commission upon request).
3.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant.
3.2 Form of Second Amended and Restated Certificate of Incorporation of the
Registrant (to be effective upon consummation of this offering).
3.3 Form of Amended and Restated By-laws of the Registrant.
4.1 Specimen certificate for shares of common stock, $.0001 par value, of
the Registrant.
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being offered.
**10.1 Credit Agreement dated as of September 23, 1998 by and among the
Registrant, Fleet National Bank, as agent, and the lenders identified
therein (excluding schedules and exhibits, which the Registrant agrees
to furnish supplementally to the Commission upon request).
**10.2 First Amendment to Credit Agreement dated as of April 13, 1999 by and
among the Registrant, the Agent and the lenders identified therein.
**10.3 Amended and Restated Promissory Note made by the Registrant in favor of
Horizon Cable I Limited Partnership.
**10.4 Asset Purchase Agreement dated as of July 31, 1998 by and among the
Registrant, Freeway, Inc. (n/k/a Offline, Inc.) and the other parties
identified therein (excluding schedules and exhibits, which the
Registrant agrees to furnish supplementally to the Commission upon
request).
**10.5 Asset Purchase Agreement dated as of September 23, 1998 by and among
the Registrant, EXEC-PC, Inc. (n/k/a The Mahoney Group) and the other
parties identified therein (excluding schedules and exhibits, which the
Registrant agrees to furnish supplementally to the Commission upon
request).
**10.6 Asset Purchase Agreement dated as of October 2, 1998, effective
September 30, 1998, by and among the Registrant, NetLink Systems,
L.L.C., and the other parties identified therein (excluding schedules
and exhibits, which the Registrant agrees to furnish supplementally to
the Commission upon request).
**10.7 Reseller Agreement dated as of April 13, 1999 by and among the
Registrant and Millennium Digital Media Systems, L.L.C.
10.8 Employment Agreement dated as of February 20, 1998 between the
Registrant and Christopher Torto, as amended.
</TABLE>
II-3
<PAGE>
<TABLE>
<C> <S>
**10.9 Employment Agreement dated as of January 15, 1998 between the
Registrant and Michael Williams.
10.10 Employment Agreement dated as of October 2, 1998 between the
Registrant and Christopher Michaels, as amended.
**10.11 Employment Agreement dated as of October 2, 1998 between the
Registrant and David Shires.
**10.12 Employment Agreement effective as of January 11, 1999 between the
Registrant and Osvaldo deFaria.
**10.13 Employment Agreement dated as of March 18, 1999 between the Registrant
and Dennis Stepaniak.
**10.14 Agreement Regarding Inventions, Non-competition and Confidentiality
dated as of February 20, 1998 between the Registrant and Christopher
Torto.
**10.15 Agreement Regarding Inventions, Non-competition and Confidentiality
dated as of October 15, 1997 between the Registrant and Michael
Williams.
**10.16 Agreement Regarding Inventions, Non-competition and Confidentiality
dated as of November 11, 1998 between the Registrant and Osvaldo
deFaria.
**10.17 Agreement Regarding Inventions, Non-competition and Confidentiality
dated as of March 18, 1999 between the Registrant and Dennis
Stepaniak.
**10.18 Employee Non-Competition Agreement dated as of October 2, 1998 between
the Registrant and Christopher Michaels.
**10.19 Employee Non-Competition Agreement dated as of October 2, 1998 between
the Registrant and David Shires.
10.20 Form of Amended and Restated 1998 Stock Option and Incentive Plan.
**10.21 Form of Incentive Stock Option and Restriction Agreement.
**10.22 Form of Stock Purchase and Stock Restriction Agreement.
**10.23 Promissory Note made by Osvaldo deFaria in favor of the Registrant.
**10.24 Promissory Note made by Glenn Friedly in favor of the Registrant.
**10.25 Promissory Note made by Christopher Torto dated April 13, 1999, in
favor of the Registrant.
**10.26 Form of Director Indemnification Agreement.
10.27 Intentionally omitted.
**10.28 Planet Direct Internet Service Provider Agreement dated as of March
17, 1997 by and among Planet Direct Corporation and the Registrant
(excluding Schedules and Exhibits which the Registrant agrees to
furnish supplementally to the Commission upon request).
*10.29 Telecommunications Services Agreement dated as of September 3, 1998 by
and between IXC Communications Services, Inc. and the Registrant.
**10.30 Stock Purchase Agreement dated as of May 7, 1999 by and among the
Registrant, GDR Enterprises, Inc. and the other parties identified
therein (excluding schedules and exhibits which the Registrant agrees
to furnish supplementally to the Commission upon request).
10.31 Form of Promissory Note made by Christopher Torto dated June , 1999,
in favor of the Registrant.
16.1 Letter re: change in independent accountants.
**21.1 Schedule of Subsidiaries of the Registrant.
*23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
*23.2 Consent of PricewaterhouseCoopers LLP.
**24.1 Powers of Attorney.
**27.1 Financial Data Schedule.
</TABLE>
- ---------------------
* To be filed by amendment to this registration statement.
** Previously filed.
II-4
<PAGE>
(b)Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts
Except for the financial statement schedule listed above, all schedules have
been omitted because they are not required or because the required information
is given in the Financial Statements or Notes to those statements.
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
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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, the registrant will, unless in the opinion of its counsel the
matter has 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 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 of
1933, 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 of
1933, 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-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 2 to the Registration Statement File No.
333-77917 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on June 25,
1999.
Voyager.net, Inc.
/s/ Dennis J. Stepaniak
By:__________________________________
Dennis J. Stepaniak
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* President, Chief Executive June 25, 1999
______________________________________ Officer and Director
Christopher P. Torto (Principal Executive
Officer)
/s/ Dennis J. Stepaniak Chief Financial Officer June 25, 1999
______________________________________ (Principal Financial
Dennis J. Stepaniak Officer and Principal
Accounting Officer)
* Director June 25, 1999
______________________________________
Glenn R. Friedly
* Director June 25, 1999
______________________________________
John G. Hayes
* Director June 25, 1999
______________________________________
Christopher S. Gaffney
Director June 25, 1999
______________________________________
Gerald H. Taylor
</TABLE>
/s/ Dennis J. Stepaniak
*By:_____________________________
Attorney-in-fact
II-6
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description Page No.
------- ----------- --------
<C> <S> <C>
1.1 Form of Underwriting Agreement.
**2.1 Stock Exchange Agreement dated as of September 23, 1998, by
and among the Registrant and the parties named therein
(excluding schedules, which the Registrant agrees to
furnish supplementally to the Commission upon request).
**2.2 Stock Purchase Agreement dated as of September 23, 1998 by
and among the Registrant and the investors identified
therein (excluding schedules and exhibits, which the
Registrant agrees to furnish supplementally to the
Commission upon request).
3.1 Form of Amended and Restated Certificate of Incorporation
of the Registrant.
3.2 Form of Second Amended and Restated Certificate of
Incorporation of the Registrant (to be effective upon
consummation of this offering).
3.3 Form of Amended and Restated By-laws of the Registrant.
4.1 Specimen certificate for shares of common stock, $.0001 par
value, of the Registrant.
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality
of the securities being offered.
**10.1 Credit Agreement dated as of September 23, 1998 by and
among the Registrant, Fleet National Bank, as agent, and
the lenders identified therein (excluding schedules and
exhibits, which the Registrant agrees to furnish
supplementally to the Commission upon request).
**10.2 First Amendment to Credit Agreement dated as of April 13,
1999 by and among the Registrant, the Agent and the lenders
identified therein.
**10.3 Amended and Restated Promissory Note made by the Registrant
in favor of Horizon Cable I Limited Partnership.
**10.4 Asset Purchase Agreement dated as of July 31, 1998 by and
among the Registrant, Freeway, Inc. (n/k/a Offline, Inc.)
and the other parties identified therein (excluding
schedules and exhibits, which the Registrant agrees to
furnish supplementally to the Commission upon request).
**10.5 Asset Purchase Agreement dated as of September 23, 1998 by
and among the Registrant, EXEC-PC, Inc. (n/k/a The Mahoney
Group) and the other parties identified therein (excluding
schedules and exhibits, which the Registrant agrees to
furnish supplementally to the Commission upon request).
**10.6 Asset Purchase Agreement dated as of October 2, 1998,
effective September 30, 1998, by and among the Registrant,
NetLink Systems, L.L.C. and the other parties identified
therein (excluding schedules and exhibits, which the
Registrant agrees to furnish supplementally to the
Commission upon request).
**10.7 Reseller Agreement dated as of April 13, 1999 by and among
the Registrant and Millennium Digital Media Systems, L.L.C.
10.8 Employment Agreement dated as of February 20, 1998 between
the Registrant and Christopher Torto, as amended.
**10.9 Employment Agreement dated as of January 15, 1998 between
the Registrant and Michael Williams.
10.10 Employment Agreement dated as of October 2, 1998 between
the Registrant and Christopher Michaels, as amended.
**10.11 Employment Agreement dated as of October 2, 1998 between
the Registrant and David Shires.
**10.12 Employment Agreement effective as of January 11, 1999
between the Registrant and Osvaldo deFaria.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description Page No.
------- ----------- --------
<C> <S> <C>
**10.13 Employment Agreement dated as of March 18, 1999 between the
Registrant and Dennis Stepaniak.
**10.14 Agreement Regarding Inventions, Non-competition and
Confidentiality dated as of February 20, 1998 between the
Registrant and Christopher Torto.
**10.15 Agreement Regarding Inventions, Non-competition and
Confidentiality dated as of October 15, 1997 between the
Registrant and Michael Williams.
**10.16 Agreement Regarding Inventions, Non-competition and
Confidentiality dated as of November 11, 1998 between the
Registrant and Osvaldo deFaria.
**10.17 Agreement Regarding Inventions, Non-competition and
Confidentiality dated as of March 18, 1999 between the
Registrant and Dennis Stepaniak.
**10.18 Employee Non-Competition Agreement dated as of October 2,
1998 between the Registrant and Christopher Michaels.
**10.19 Employee Non-Competition Agreement dated as of October 2,
1998 between the Registrant and David Shires.
10.20 Form of Amended and Restated 1998 Stock Option and
Incentive Plan.
**10.21 Form of Incentive Stock Option and Restriction Agreement.
**10.22 Form of Stock Purchase and Stock Restriction Agreement.
**10.23 Promissory Note made by Osvaldo deFaria in favor of the
Registrant.
**10.24 Promissory Note made by Glenn Friedly in favor of the
Registrant.
**10.25 Promissory Note made by Christopher Torto dated April 13,
1999, in favor of the Registrant.
**10.26 Form of Director Indemnification Agreement.
10.27 Intentionally Omitted.
**10.28 Planet Direct Internet Service Provider Agreement dated as
of March 17, 1997 by and among Planet Direct Corporation
and the Registrant.
*10.29 Telecommunications Services Agreement dated as of September
3, 1998 by and between IXC Communications Services, Inc.
and the Registrant (excluding schedules and exhibits, which
the Registrant agrees to furnish supplementally to the
Commission upon request).
**10.30 Stock Purchase Agreement dated as of May 7, 1999 by and
among the Registrant, GDR Enterprises, Inc. and the other
parties identified therein (excluding schedules and
exhibits which the Registrant agrees to furnish
supplementally to the commission upon request).
10.31 Form of Promissory Note made by Christopher Torto dated
June , 1999, in favor of the Registrant.
16.1 Letter re: change in independent accountants.
**21.1 Schedule of Subsidiaries of the Registrant.
*23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 hereto).
*23.2 Consent of PricewaterhouseCoopers LLP.
**24.1 Powers of Attorney.
**27.1 Financial Data Schedule.
</TABLE>
- ---------------------
* To be filed by amendment to this registration statement.
** Previously filed.
<PAGE>
Exhibit 1.1
__________ Shares
VOYAGER.NET, INC.
Common Stock
Form of
UNDERWRITING AGREEMENT
----------------------
__________, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
FIRST UNION CAPITAL MARKETS
CIBC WORLD MARKETS
As representatives of the several Underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Voyager.net, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), and certain stockholders of the Company named in Schedule II
hereto (the "Selling Stockholders") severally propose to sell to the several
Underwriters, an aggregate of _______________ shares of the common stock, par
value $.0001 per share (the "Common Stock"), of the Company (the "Firm Shares"),
of which _____________ shares are to be issued and sold by the Company and
_____________ shares are to be sold by the Selling Stockholders, each Selling
Stockholder selling the amount set forth opposite such Selling Stockholder's
name in Schedule II hereto. The Company and the Selling Stockholders also
propose to issue and sell to the several Underwriters not more than an
additional _______ shares of its Common Stock (the "Additional Shares") if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are hereinafter referred to collectively as the
"Shares". The shares of common stock of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock". The Company and the Selling Stockholders are hereinafter
sometimes referred to collectively as the "Sellers."
<PAGE>
Section 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1 (File No. 333-
77917), including a prospectus, relating to the Shares. The registration
statement, as amended at the time it became effective, including the information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is hereinafter referred to as
the "Registration Statement"; and the prospectus in the form first used to
confirm sales of Shares is hereinafter referred to as the "Prospectus". If the
Company has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Act registering
additional shares of Common Stock (a "Rule 462(b) Registration Statement"),
then, unless otherwise specified, any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462(b) Registration Statement.
Section 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, (i) the Company agrees to issue and sell
______________ Firm Shares, (ii) each Selling Stockholder agrees, severally and
not jointly, to sell the number of Firm Shares set forth opposite such Selling
Stockholder's name in Schedule II hereto and (iii) each Underwriter agrees,
severally and not jointly, to purchase from each Seller at a price per Share of
$______ (the "Purchase Price") the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Firm Shares to be sold by such Seller as
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company and the Selling
Stockholders agree to issue and sell the Additional Shares set forth opposite
the Company's and the Selling Stockholders' names in Schedule II hereto and the
Underwriters shall have the right to purchase, severally and not jointly, up to
_______ Additional Shares from the Company and up to ___ Additional Shares from
the Selling Stockholders (such amounts set forth opposite the name of each
Selling Stockholder in Schedule II) at the Purchase Price. Additional Shares
may be purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. The Underwriters may exercise
their right to purchase Additional Shares in whole or in part from time to time
by giving written notice thereof to the Company and the Selling Stockholders
within 30 days after the date of this Agreement. You shall give any such notice
on behalf of the Underwriters and such notice shall specify the aggregate number
of Additional Shares to be purchased pursuant to such exercise and the date for
payment and delivery thereof, which date shall be a business day (i) no earlier
than two business days after such notice has been given (and, in any event, no
earlier than the
-2-
<PAGE>
Closing Date (as hereinafter defined)) and (ii) no later than ten business days
after such notice has been given. If any Additional Shares are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Company
and the Selling Stockholders the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) which bears the
same proportion to the total number of Additional Shares to be purchased from
the Company and the Selling Stockholders as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Shares.
Each Seller hereby agrees not to (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock other than the
exercise of options exercisable for the purchase of Common Stock or (ii) enter
into any swap or other arrangement that transfers all or a portion of the
economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 180 days after the date of the Prospectus without the prior written
consent of Donaldson, Lufkin & Jenrette Securities Corporation. Notwithstanding
the foregoing, during such period (i) the Company may grant stock options
pursuant to the Company's existing stock option plan and (ii) the Company may
issue shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof. The Company also
agrees not to file any registration statement except on Form S-8 with respect to
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock for a period of 180 days after the date of the
Prospectus without the prior written consent of Donaldson, Lufkin & Jenrette
Securities Corporation. In addition, each Selling Stockholder agrees that, for
a period of 180 days after the date of the Prospectus without the prior written
consent of Donaldson, Lufkin & Jenrette Securities Corporation, it will not make
any demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock. Notwithstanding the foregoing sentence, each
Selling Stockholder may transfer any or all of the Common Stock currently owned
or held by the Selling Stockholder or, issued to the Selling Stockholder upon
the exercise of options, without the prior written consent of Donaldson, Lufkin
& Jenrette Securities Corporation (i) in connection with this Initial Public
Offering, (ii) by gift, will or intestacy, (iii) to the Selling Stockholder's
affiliates, as such term is defined in Rule 405 promulgated under the Securities
Act of 1933, as amended, or (iv) in the event the Selling Stockholder is an
individual, to his or her immediate family or to a trust the beneficiaries of
which are exclusively the undersigned and/or a member or members of his or her
immediate family. However, in the case of a transfer pursuant to the foregoing
sentence (except in the instance of the Company's Initial Public Offering),
-3-
<PAGE>
prior to such transfer, the transferee shall execute and deliver a lock-up
agreement, in the form of the lock-up agreement executed by the transferor, to
Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York,
New York 10172 (Attention: Legal Department) and Hale and Dorr LLP, 60 State
Street, Boston, MA 02109 (Attention: Thomas L. Barrette, Jr., Esq.) via Federal
Express. For purposes of the foregoing, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
The Company shall, prior to or concurrently with the execution of this
Agreement, deliver an agreement executed by (i) each Selling Stockholder,
(ii) each of the directors and officers of the Company who is not a Selling
Stockholder and (iii) each stockholder and optionholders listed on Annex I
hereto to the effect that such person will not, during the period commencing on
the date such person signs such agreement and ending 180 days after the date of
the Prospectus, without the prior written consent of Donaldson, Lufkin &
Jenrette Corporation, (A) engage in any of the transactions described in the
first sentence of this paragraph or (B) make any demand for, or exercise any
right with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
Section 3. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
Section 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as Donaldson, Lufkin & Jenrette Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. The
Shares shall be delivered by or on behalf of the Sellers, with any transfer
taxes thereon duly paid by the respective Sellers, to Donaldson, Lufkin &
Jenrette Securities Corporation through the facilities of The Depository Trust
Company ("DTC"), for the respective accounts of the several Underwriters,
against payment to the Sellers of the Purchase Price therefore by wire transfer
of Federal or other funds immediately available in New York City. The
certificates representing the Shares shall be made available for inspection not
later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, at the
office of DTC or its designated custodian (the "Designated Office"). The time
and date of delivery and payment for the Firm Shares shall be 9:00 A.M.,
New York City time, on ________, 1999 or such other time on the same or such
other date as Donaldson, Lufkin & Jenrette Securities Corporation and the
Company shall agree in writing. The time and date of delivery and payment for
the Firm Shares are hereinafter referred to as the "Closing Date". The time and
date of delivery and payment for any Additional Shares to be purchased by the
Underwriters shall be 9:00 A.M., New York City time, on the date specified in
the applicable exercise notice given by you pursuant to Section 2 or such other
time on the same or such
-4-
<PAGE>
other date as Donaldson, Lufkin & Jenrette Securities Corporation and the
Company shall agree in writing. The time and date of delivery and payment for
any Additional Shares are hereinafter referred to as the "Option Closing Date".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of Hale and Dorr LLP, 60 State Street, Boston,
MA 02109 and the Shares shall be delivered at the Designated Office, all on the
Closing Date or such Option Closing Date, as the case may be.
Section 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will use its reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(b) To furnish to you four (4) signed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
-5-
<PAGE>
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its reasonable best efforts to
cause any such amendment to the Registration Statement to become promptly
effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Shares, in
any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending
__________, 2000 that shall satisfy the provisions of Section 11(a) of the Act,
and to advise you in writing when such statement has been so made available.
-6-
<PAGE>
(h) During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its Subsidiaries (as defined herein) as
you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Sellers' obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel, the Company's accountants and any Selling Stockholder's counsel (in
addition to the Company's counsel) in connection with the registration and
delivery of the Shares under the Act and all other fees and expenses in
connection with the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits), any
preliminary prospectus, the Prospectus and all amendments and supplements to any
of the foregoing, including the mailing and delivering of copies thereof to the
Underwriters and dealers in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) all costs of
printing or producing this Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the Shares, (iv) all
expenses in connection with the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the several states and
all costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the Shares by the National Association
of Securities Dealers, Inc., (vi) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the
Common Stock and all costs and expenses incident to the listing of the Shares on
the Nasdaq National Market, (vii) the cost of printing certificates representing
the Shares, (viii) the costs and charges of any transfer agent, registrar and/or
depositary, and (ix) all other costs and expenses incident to the performance of
the obligations of the Company and the Selling Stockholders hereunder for which
provision is not otherwise made in this Section. The provisions of this Section
shall not supersede or otherwise affect any agreement that the Company and the
Selling Stockholders may otherwise have for allocation of such expenses among
themselves.
(j) To use its reasonable best efforts to list for quotation the Shares on
the Nasdaq National Market and to maintain the listing of the Shares on the
Nasdaq National Market for a period of three years after the date of this
Agreement.
-7-
<PAGE>
(k) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Section 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b)(i) The Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement),
when it became effective, did not contain and, as amended, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement) and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act, (iii) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, such Rule 462(b) Registration Statement and any
amendments thereto, when they become effective (A) will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(B) will comply in all material respects with the Act and (iv) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement or the Prospectus based
-8-
<PAGE>
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(d) The Company has no direct or indirect subsidiaries other than Voyager
Information Networks, Inc., Voyager Data Services, Inc., Horizon
Telecommunications, Inc., GDR Enterprises, Inc., Mall 2000, Inc., EriNet
Telecom, Inc., and TDIN, Inc. (collectively, the "Subsidiaries").
(e) Each of the Company and its Subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in the Prospectus and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole (a
"Material Adverse Effect").
(f) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its Subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of the Company
or any of its Subsidiaries, except as otherwise disclosed in the Registration
Statement and except for additional stock options that may be granted after the
date hereof pursuant to the Company's stock option plan.
(g) All the outstanding shares of capital stock of the Company (including
the Shares to be sold by the Selling Stockholders) have been duly authorized and
validly issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights; and the Shares to be issued and sold by the
Company have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor as provided by this Agreement, will
-9-
<PAGE>
be validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(h) All of the outstanding shares of capital stock of the Company's
Subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, directly or indirectly through one
or more Subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature other than any liens under the
Credit Agreement, dated as of September 23, 1998, as amended, among the Company,
the several lenders from time to time parties thereto and Fleet National Bank
(the "Credit Agreement").
(i) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(j) Neither the Company nor any of its Subsidiaries is in violation of its
respective charter or by-laws. Neither the Company nor any of its Subsidiaries
is (i) in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its Subsidiaries,
taken as a whole, to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries or their respective property is
bound, or (ii) in violation of any law, statute, rule, regulation, judgment or
court decree applicable to the Company or any of its Subsidiaries, except where
such default or violation would not have a Material Adverse Effect.
(k) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
further consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of various jurisdictions), (ii) conflict
with or constitute a breach of any of the terms or provisions of, or a default
under, the charter or by-laws of the Company or any of its Subsidiaries or,
except where such conflict, breach of default would not have a Material Adverse
Effect, any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its Subsidiaries, taken as a
whole, to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries or their respective property is bound,
(iii) violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its Subsidiaries or their respective
property or (iv) result in the suspension, termination or revocation of any
Authorization (as defined below) of the Company or any of its Subsidiaries or
any other impairment of the rights of the holder of any such Authorization.
-10-
<PAGE>
(l) There are no legal or governmental proceedings pending or to the
knowledge of the Company threatened to which the Company or any of its
Subsidiaries is or could reasonably be expected to be a party or to which any of
their respective property is or could reasonably be expected to be subject that
are required to be described in the Registration Statement or the Prospectus and
are not so described; nor are there any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required.
(m) Neither the Company nor any of its Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), any provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any
provisions of the Foreign Corrupt Practices Act or the rules and regulations
promulgated thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect.
(n) Each of the Company and its Subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each, an
"Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its Subsidiaries is in material compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome to the Company or any
of its Subsidiaries; except where such failure to be valid and in full force and
effect or to be in compliance, the occurrence of any such event or the presence
of any such restriction would not, singly or in the aggregate, have a Material
Adverse Effect.
(o) To the knowledge of the Company, there are no costs or liabilities
associated with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related constraints
on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a Material Adverse Effect.
-11-
<PAGE>
(p) This Agreement has been duly authorized, executed and delivered by the
Company.
(q) PricewaterhouseCoopers LLP, who has certified the financial statements
in the Registration Statement and the Prospectus, are independent public
accountants with respect to the Company and its Subsidiaries as required by the
Act.
(r) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its Subsidiaries on the basis stated therein at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; the supporting schedules, if any, included in the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company.
(s) The pro forma financial information included in the Registration
Statement and Prospectus (A) present fairly in all material respects the
information shown therein and (B) have been prepared in accordance with
applicable requirements of Regulation S-X promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The assumptions used in
preparation of the pro forma financial statements included in the Registration
Statement and Prospectus are reasonable and the adjustments used therein are
appropriate to give effect tot he transactions or circumstances referred to
therein.
(t) The Company is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(u) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement, other than rights which have
been satisfied or waived.
-12-
<PAGE>
(v) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there has not occurred any material adverse change or any development
involving a prospective material adverse change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its Subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material adverse
change in the capital stock or in the long-term debt of the Company or any of
its Subsidiaries and (iii) neither the Company nor any of its Subsidiaries has
incurred any material liability or obligation, direct or contingent, other than
in the ordinary course of business.
(w) Each certificate signed by any officer of the Company and delivered to
the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
(x) The Company has reviewed its operations and those of its Subsidiaries
and third parties with which the Company or any of its Subsidiaries has a
relationship which is material to the Company to evaluate the extent to which
the business or operations of the Company or any of its Subsidiaries will be
affected by Year 2000 issues. As a result of such review, the Company
represents and warrants that the disclosure in the Registration Statement
relating to Year 2000 issues is accurate and complies in all material respects
with the rules and regulations of the Act. "Year 2000 issues" as used herein
means Year 2000 issues described in or contemplated by the Commission's
Interpretation: Disclosure of Year 2000 Issues and Consequences by Public
Companies, Investment Advisers, Investment Companies and Municipal Securities
Issuers (Release No. 33-7558).
(y) The Company and its Subsidiaries maintain insurance of the type and in
the amounts generally deemed adequate for its business, including, but not
limited to, general liability insurance, business interruption insurance and
insurance covering personal property owned or leased by the Company against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect.
Section 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder, severally and not jointly, represents and warrants to
each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be sold
by such Selling Stockholder pursuant to this Agreement and has, and on the
Closing Date will have, good and marketable title to such Shares, free of all
restrictions on transfer, liens, encumbrances, security interests, equities and
claims whatsoever.
-13-
<PAGE>
(b) Such Selling Stockholder has, and on the Closing Date and any Option
Closing Date will have, full legal right, power and authority, and all
authorization and approval required by law, to enter into this Agreement, the
Custody Agreement signed by such Selling Stockholder and the Company, as
Custodian, relating to the deposit of the Shares to be sold by such Selling
Stockholder (the "Custody Agreement") and the Power of Attorney of such Selling
Stockholder appointing certain individuals as such Selling Stockholder's
attorneys-in-fact (the "Attorneys") to the extent set forth therein, relating to
the transactions contemplated hereby and by the Registration Statement and the
Custody Agreement (the "Power of Attorney") and to sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder in the manner provided
herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or
on behalf of such Selling Stockholder.
(d) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in accordance
with its terms except as to rights to indemnity and contribution hereunder which
may be limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of such Selling
Stockholder's obligations hereunder and thereunder may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium, and other laws
relating to or affecting creditors' rights generally and by general equitable
principles.
(e) The Power of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding instrument of such Selling Stockholder, enforceable in accordance
with its terms (except as noted in paragraph (d) above), and, pursuant to such
Power of Attorney, such Selling Stockholder has, among other things, authorized
the Attorneys, or any one of them, to execute and deliver on such Selling
Stockholder's behalf this Agreement and any other document that they, or any one
of them, may deem necessary or desirable in connection with the transactions
contemplated hereby and thereby and to deliver the Shares to be sold by such
Selling Stockholder pursuant to this Agreement.
(f) Upon delivery of and payment for the Shares to be sold by such Selling
Stockholder pursuant to this Agreement, good and marketable title to such Shares
will pass to the Underwriters, free and clear of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims whatsoever,
assuming the Underwriters are bona fide purchasers within the meaning of the
Uniform Commercial Code.
-14-
<PAGE>
(g) The execution, delivery and performance of this Agreement and the
Custody Agreement and Power of Attorney of such Selling Stockholder by or on
behalf of such Selling Stockholder, the compliance by such Selling Stockholder
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) require any further
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of various jurisdictions), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to such Selling
Stockholder to which such Selling Stockholder is a party or by which such
Selling Stockholder or any property of such Selling Stockholder is bound, except
where such conflict, breach or default would not have a Material Adverse Effect
on such Selling Stockholder or (iii) violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over such Selling Stockholder or
any property of such Selling Stockholder.
(h) The information in the Registration Statement under the caption
"Principal and Selling Stockholders" which specifically relates to such Selling
Stockholder does not, and will not on the Closing Date or any Option Closing
Date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(i) At any time during the period described in Section 5(d), if there is
any change in the information referred to in Section 7(h), such Selling
Stockholder will immediately notify you of such change.
(j) Each certificate signed by or on behalf of such Selling Stockholder and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by such Selling Stockholder to the Underwriters
as to the matters covered thereby.
Section 8. Indemnification. (a) The Sellers, jointly and severally, agree
to indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), from and against any and all losses, claims, damages,
liabilities and judgments ("Losses") (including, without limitation, any legal
or other expenses reasonably incurred in connection with investigating or
defending any matter, including any action, that could give rise to any such
Losses) caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
-15-
<PAGE>
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter who failed to deliver a Prospectus, as then
amended or supplemented, (so long as the Prospectus and any amendment or
supplement thereto was provided by the Company to the several Underwriters in
the requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims, damages,
liabilities or judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in such preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in the Prospectus, as so amended or supplemented, and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person. Notwithstanding the foregoing, (i) each
Selling Stockholder (each, a "Specified Selling Stockholder") will be liable
only to the extent that any such Losses caused by any such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of any such Specified Selling Stockholder expressly for use
therein; (ii) the aggregate liability of any Selling Stockholder pursuant to
this Section 8(a) shall be limited to an amount equal to the lesser of (x) the
net proceeds (after deducting underwriting discounts and commissions) received
by such Selling Stockholder from the Underwriters for the sale of the Shares
sold by such Selling Stockholder hereunder and (y) such Selling Stockholder's
pro rata portion of the Losses. Each Selling Stockholder shall be released from
its indemnity obligation with respect to any such losses pursuant to this
Section 8(a) to the extent the Company has accepted its indemnity obligation
with respect to such Losses under this Section 8(a) and has satisfied such
obligation in compliance with this Section 8. Each of the Underwriters further
agrees that it will not seek indemnification from any Selling Stockholder unless
and until such Underwriter has first requested indemnification from the Company
and the Company, within 30 days after the receipt of each such request, has not
made actual payment to such Underwriter in accordance with such request.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20
-16-
<PAGE>
of the Exchange Act, each Selling Stockholder and each person, if any, who
controls such Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Sellers to such Underwriter but only with reference to information
relating to such Underwriter furnished in writing to the Company by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"Indemnified Party"), the Indemnified Party shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Party") in writing
and the Indemnifying Party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any Indemnified Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the Indemnified
Party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the Indemnified Party or (iii) the named parties to
any such action (including any impleaded parties) include both the Indemnified
Party and the Indemnifying Party, and the Indemnified Party shall have been
advised by such counsel in writing that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Indemnifying Party (in which case the Indemnifying Party shall not have the
right to assume the defense of such action on behalf of the Indemnified Party).
In any such case, the Indemnifying Party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for (i) the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all Underwriters, their officers and
directors and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
(ii) the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and all persons, if any, who control the Company
within the meaning of either such Section and (iii) the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters, their officers and directors and such
control persons of any Underwriters, such firm shall be designated in
-17-
<PAGE>
writing by Donaldson, Lufkin & Jenrette Securities Corporation. In the case of
any such separate firm for the Company and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
In the case of any such separate firm for the Selling Stockholders and such
control persons of any Selling Stockholders, such firm shall be designated in
writing by the Attorneys. The Indemnifying Party shall indemnify and hold
harmless the Indemnified Party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action
(i) effected with its written consent or (ii) effected without its written
consent if the settlement is entered into more than twenty business days after
the Indemnifying Party shall have received a request from the Indemnified Party
for reimbursement for the fees and expenses of counsel (in any case where such
fees and expenses are at the expense of the Indemnifying Party) and, prior to
the date of such settlement, the Indemnifying Party shall have failed to comply
with such reimbursement request. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the Indemnified Party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the Indemnified Party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the Indemnified Party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the Indemnified Party.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 8(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Sellers on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Sellers on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by the Sellers, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Shares, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Sellers on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
-18-
<PAGE>
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders on the one hand or the Underwriters on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective number
of Shares purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
(f) Each Selling Stockholder hereby designates Voyager.net, Inc.,
4660 S. Hagadorn Road, Suite 320, East Lansing, MI 48823, as its authorized
agent, upon which process may be served in any action which may be instituted in
any state or federal court in the State of New York by any Underwriter, any
director or officer of any Underwriter or any person controlling any Underwriter
asserting a claim for indemnification or contribution under or pursuant to this
Section 8, and each Selling Stockholder will accept the jurisdiction of such
court in such action, and waives, to the fullest extent permitted by applicable
law, any defense based upon lack of personal jurisdiction or venue. A copy of
any such process shall be sent or given to such Selling Stockholder, at the
address for notices specified in Section 12 hereof.
-19-
<PAGE>
Section 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or, to the knowledge of the Company, threatened by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by Christopher Torto and Dennis Stepaniak, in their
capacities as the Chief Executive Officer and Chief Financial Officer of the
Company, respectively, confirming the matters set forth in Sections 6(v), 9(a)
and 9(b) and that the Company has complied with all of the agreements and
satisfied all of the conditions herein contained and required to be complied
with or satisfied by the Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there shall not have occurred any adverse change or any development
involving a prospective adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
Subsidiaries, taken as a whole, (ii) there shall not have been any adverse
change or any development involving a prospective adverse change in the capital
stock or in the long-term debt of the Company or any of its Subsidiaries and
(iii) neither the Company nor any of its Subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any such
case described in clause 9(d)(i), 9(d)(ii) or 9(d)(iii), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you shall
have received on the Closing Date a certificate dated the Closing Date from each
Selling Stockholder to such effect and to the effect that such Selling
Stockholder has complied with all of the agreements and satisfied
-20-
<PAGE>
all of the conditions herein contained and required to be complied with or
satisfied by such Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of Goodwin,
Procter & Hoar LLP, counsel for the Company and special counsel for the Selling
Stockholders, to the effect that:
(i) each of the Company and its Subsidiaries has been duly incorporated,
is validly existing in corporate good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in the Prospectus and to own, lease and operate its
properties as described in the Prospectus;
(ii) each of the Company and its Subsidiaries is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the Company (including
the Shares to be sold by the Selling Stockholders) have been duly authorized and
validly issued and are fully paid, non-assessable and not subject to any
statutory preemptive or similar rights;
(iv) the Shares to be issued and sold by the Company hereunder have been
duly authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights;
(v) this Agreement has been duly authorized, executed and delivered by the
Company and by or on behalf of each Selling Stockholder;
(vi) the authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus;
(vii) the Registration Statement has become effective under the Act, and to
such counsel's knowledge, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are pending before or threatened by
the Commission;
-21-
<PAGE>
(viii) the statements under the captions "Description of Capital Stock"
(insofar as they purport to constitute a summary of the terms of the capital
stock of the Company), and paragraph ___ of "Underwriting" in the Prospectus and
Items 15 of Part II of the Registration Statement, insofar as such statements
constitute matters of law or legal conclusions, have been reviewed by us and are
correct in all material respects;
(ix) the execution and delivery of this Agreement by the Company, the
compliance by the Company with all the provisions hereof and the consummation of
the transactions contemplated hereby will not (A) require any further consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of various jurisdictions), (B) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its Subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or their respective property is bound and which is an exhibit to
the Registration Statement, (C) violate or conflict with any applicable law or
any rule or regulation (assuming compliance with all applicable blue sky laws),
judgment, order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its Subsidiaries or their respective
property and which specifically names the Company and is known to us or (D)
result in the suspension, termination or revocation of any Authorization of the
Company or any of its Subsidiaries or any other impairment of the rights of the
holder of any such Authorization;
(x) such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company is a party or to which any of its
respective property is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described, or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed as
required;
(xi) the Company is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xii) the Registration Statement and the Prospectus and any supplement or
amendment thereto (except for the financial statements and notes thereto, the
schedules and other financial statistical and accounting data included therein
as to which no opinion need be expressed) comply as to form with the Act;
-22-
<PAGE>
(xiii) to such counsel's knowledge, each Selling Stockholder has full legal
right, power and authority, and all authorization and approval required by law,
to enter into this Agreement and the Custody Agreement and the Power of Attorney
of such Selling Stockholder and to sell, assign, transfer and deliver the Shares
to be sold by such Selling Stockholder in the manner provided herein and
therein;
(xiv) to such counsel's knowledge, the Custody Agreement of each Selling
Stockholder has been duly authorized, executed and delivered by such Selling
Stockholder and is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms;
(xv) to such counsel's knowledge, the Power of Attorney of each Selling
Stockholder has been duly authorized, executed and delivered by such Selling
Stockholder and is a valid and binding instrument of such Selling Stockholder,
enforceable in accordance with its terms, and, pursuant to such Power of
Attorney, such Selling Stockholder has, among other things, authorized the
Attorneys, or any one of them, to execute and deliver on such Selling
Stockholder's behalf this Agreement and any other document they, or any one of
them, may deem necessary or desirable in connection with the transactions
contemplated hereby and thereby and to deliver the Shares to be sold by such
Selling Stockholder pursuant to this Agreement;
(xvi) upon the Underwriters' obtaining control of the Shares to be sold by
Selling Stockholders pursuant to this Agreement and assuming the Underwriters
purchased such Shares for value and without notice of adverse claim to such
Shares within the meaning of Section 8-102 of the Massachusetts Uniform
Commercial Code, the Underwriters will have obtained all rights of the Selling
Stockholders in such Shares, free of any adverse claim, any lien in favor of the
Company and any restrictions on transfer; and
(xvii) to such counsel's knowledge, the execution, delivery and performance
of this Agreement and the Custody Agreement and Power of Attorney of each
Selling Stockholder by such Selling Stockholder, the compliance by such Selling
Stockholder with all the provisions hereof and thereof and the consummation of
the transactions contemplated hereby and thereby will not (A) require any
further consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of various jurisdictions), (B) conflict
with or constitute a breach of any of the terms or provisions of, or a default
under, the organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which such Selling Stockholder is a
party or by which any property of such Selling Stockholder is bound or
(C) violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency having
jurisdiction over such Selling Stockholder or its property of and specifically
naming such Selling Stockholder;
-23-
<PAGE>
(xviii) such counsel has no reason to believe that at the time the
Registration Statement became effective or on the date of this Agreement, the
Registration Statement and the prospectus included therein (except for the
financial statements and other financial data as to which such counsel need not
express any belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) such counsel has no reason to believe
that the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial data, as aforesaid) contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstanced under
which they were made, not misleading.
The opinion of Goodwin, Procter & Hoar LLP described in Section 9(f) above
shall be rendered to you at the request of the Company and the Selling
Stockholders and shall so state therein.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Hale and Dorr LLP, counsel for the Underwriters, as to the
matters referred to in Sections 9(f)(iii), 9(f)(iv), 9(f)(v) (but only with
respect to the Company), and 9(f)(viii) (but only with respect to the statements
under the caption "Description of Capital Stock" and "Underwriting") and
9(f)(xvii).
In giving such opinions with respect to the matters covered by Section
9(f)(xvii), counsel for the Company and the Selling Stockholders and counsel for
the Underwriters may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification except as
specified.
(h) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from PricewaterhouseCoopers LLP,
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(i) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
-24-
<PAGE>
(j) The Shares shall have been duly listed for quotation, subject to
notice of issuance, on the Nasdaq National Market.
(k) The Company and the Selling Stockholders shall not have failed on or
prior to the Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company or the
Selling Stockholders, as the case may be, on or prior to the Closing Date.
(l) You shall have received on the Closing Date, a certificate of each
Selling Stockholder who is not a U.S. Person (as defined under applicable U.S.
federal tax legislation) to the effect that such Selling Stockholder is not a
U.S. Person, which certificate may be in the form of a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
Section 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Sellers if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States that, in your judgment, is material and
adverse and, in your judgment, makes it impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus, (ii) the suspension
or material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
-25-
<PAGE>
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each non-
defaulting Underwriter shall be obligated severally, in the proportion which the
number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to
you, the Company and the Selling Stockholders for purchase of such Firm Shares
are not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders. In any such case which does not result in
termination of this Agreement, either you or the Sellers shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. If, on an
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase such Additional Shares or (ii) purchase not less than the number of
Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase on such date in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
-26-
<PAGE>
Section 11. Agreements of the Selling Stockholders. Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in connection
with the transfer of the Shares to be sold by such Selling Stockholder to the
Underwriters.
(b) To do and perform all things to be done and performed by such Selling
Stockholder under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement.
Section 12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
Voyager.net, Inc., 4660 S. Hagadorn Road, Suite 320, East Lansing, MI, (ii) if
to the Selling Stockholders, to c/o Voyager.net, Inc., 4660 S. Hagadorn Road,
Suite 320, East Lansing, MI, Attention: President and (iii) if to any
Underwriter or to you, to you c/o Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company, any person controlling the
Company, any Selling Stockholder or any person controlling such Selling
Stockholder, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Sellers agree, jointly and severally, to
reimburse the several Underwriters for all out-of-pocket expenses (including the
fees and disbursements of counsel) reasonably incurred by them. Notwithstanding
any termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Sellers also
agree, jointly and severally, to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the fees
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 8 hereof).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to
-27-
<PAGE>
herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
Voyager.net, Inc.
By:
----------------------------------
Title:
THE SELLING STOCKHOLDERS NAMED IN SCHEDULE II HERETO, ACTING SEVERALLY
By:
----------------------------------
Attorney-in-fact
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
FIRST UNION CAPITAL MARKETS
CIBC WORLD MARKETS
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
----------------------------------
Title:
-------------------------------
-28-
<PAGE>
SCHEDULE I
----------
<TABLE>
<CAPTION>
Number of Number of
Firm Shares Additional
to be Shares to be
Underwriters Purchased Purchased
- ------------ --------- ---------
<S> <C> <C>
Donaldson, Lufkin & Jenrette Securities
Corporation
First Union Capital Markets
CIBC World Markets
Total
</TABLE>
-29-
<PAGE>
SCHEDULE II
-----------
Selling Stockholders
--------------------
<TABLE>
<CAPTION>
Number of Number of
Firm Shares Additional
Name Being Sold Shares being Sold
- ---- ---------- -----------------
<S> <C> <C>
Total
</TABLE>
-30-
<PAGE>
Annex I
Baird, Alan
deFaria, Osvaldo
Diez, David F.
Friedly, Glenn R.
Gaffney, Christopher
Goldney, James
Hayes, John G.
Heinze, Michael
Holda, Joan
Joslin, Chris
Media/Communications
Investors Limited
Partnership
Media/Communications
Partners II Limited
Partnership
Michaels, Christopher
Mittelstadt, Michael
Quoss, Scott
Rouble, Garth
Scott, Dave
Shambeu, Curt
Shires, David
Stepaniak, Dennis
Torto, Christopher
Vickers, Mark
William, Michael
-31-
<PAGE>
Exhibit 3.1
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VOYAGER.NET, INC.
VOYAGER.NET, INC., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Voyager.net, Inc. The date of the
filing of its original Certificate of Incorporation (the "Original Certificate")
with the Secretary of State of the State of Delaware was September 18, 1998
under the name "Voyager Holdings, Inc." The name of the Corporation was changed
to "Voyager.net, Inc." on April 29, 1999, by way of amendment to the Original
Certificate.
2. This Amended and Restated Certificate of Incorporation amends,
restates and integrates the provisions of the Original Certificate, as
heretofore amended, and (i) was duly adopted by the Board of Directors in
accordance with the provisions of Section 245 of the Delaware General
Corporation Law (the "DGCL"), (ii) was declared by the Board of Directors to be
advisable and in the best interests of the Corporation and was directed by the
Board of Directors to be submitted to and be considered by the stockholders of
the Corporation entitled to vote thereon for approval by the affirmative vote of
such stockholders in accordance with Section 242 of the DGCL and (iii) was duly
adopted by a consent in lieu of a meeting of the holders of the Corporation's
common stock, par value $.0001 per share (the "Common Stock"), and the holders
of the Corporation's Series A Preferred Stock, par value $.01 per share (the
"Series A Preferred Stock"), in accordance with the provisions of Sections 228
and 242 of the DGCL and the terms of the Original Certificate of Incorporation,
as amended, such holders being all of the holders of the Corporation's capital
stock entitled to vote thereon.
3. The text of the Original Certificate, as amended, is hereby amended
and restated in its entirety to provide as herein set forth in full.
ARTICLE I
---------
The name of the Corporation is Voyager.net, Inc.
ARTICLE II
----------
The address of the Corporation's registered office in the State of Delaware
is c/o The Corporation Trust Company, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
<PAGE>
ARTICLE III
-----------
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
-------------
The total number of shares of capital stock which the Corporation shall
have authority to issue is Fifty Five Million One Hundred Thousand (55,100,000)
shares, of which (i) Fifty Million (50,000,000) shares shall be common stock,
par value $.0001 per share (the "Common Stock"), and (ii) Five Million One
Hundred Thousand (5,100,000) shares shall be preferred stock, par value $.01 per
share (the "Preferred Stock"), of which 5,000,000 shares shall be undesignated
preferred stock, par value $.01 per share (the "Undesignated Preferred Stock"),
and 100,000 shares shall be Series A Preferred Stock, par value $.01 per share
(the "Series A Preferred Stock").
Except as otherwise restricted by this Amended and Restated Certificate of
Incorporation, the Board of Directors may, at any time and from time to time, if
all of the shares of capital stock which the Corporation is authorized by this
Amended and Restated Certificate of Incorporation to issue have not been issued,
subscribed for, or otherwise committed to be issued, issue or take subscriptions
for additional share of its capital stock up to the amount authorized in this
Amended and Restated Certificate of Incorporation.
Any and all such shares issued for which the full consideration has been
paid or delivered shall be fully paid shares of capital stock, and the holder of
such shares shall not be liable for any further call or assessment or any other
payment thereon.
The number of authorized shares of the class of Undesignated Preferred
Stock may from time to time be increased or decreased (but not below the number
of shares outstanding) by the affirmative vote of the holders of a majority of
the outstanding shares of Common Stock entitled to vote, without a vote of the
holders of the Undesignated Preferred Stock (except as otherwise provided in any
certificate of designation of any series of Undesignated Preferred Stock).
The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or series of stock
shall be determined in accordance with, or as set forth below in, this Article
IV.
2
<PAGE>
A. COMMON STOCK
------------
Subject to all the rights, powers and preferences of the Undesignated
Preferred Stock and the Series A Preferred Stock, and except as provided by law
or in this Article IV (or in any certificate of designation of any series of
Undesignated Preferred Stock);
(a) the holders of the Common Stock shall have the exclusive right to
vote for the election of directors and on all other matters requiring
stockholder action, each share being entitled to one vote;
(b) dividends may be declared and paid or set apart for payment upon
the Common Stock out of any assets or funds of the Corporation legally available
for the payment of dividends, but only when and as declared by the Board of
Directors or any authorized committee thereof; and
(c) upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the net assets of the Corporation shall be
distributed pro rata to the holders of the Common Stock.
B. PREFERRED STOCK
---------------
1. Undesignated Preferred Stock.
----------------------------
(a) Authority to Issue. The total number of shares of Undesignated
------------------
Preferred Stock which the Corporation shall have authority to issue is Five
Million (5,000,000) shares. Subject to any limitations prescribed by law, the
Board of Directors or any authorized committee thereof is expressly authorized
to provide for the issuance of the shares of Undesignated Preferred Stock in one
or more series of such stock, and by filing a certificate pursuant to applicable
law of the State of Delaware, to establish or change from time to time the
number of shares to be included in each such series, and to fix the
designations, powers, preferences and the relative, participating, optional or
other special rights of the shares of each series and any qualifications,
limitations and restrictions thereof.
(b) Powers, Preferences, Rights, Qualifications, Limitations and
------------------------------------------------------------
Restriction of Each Series of Undesignated Preferred Stock. The Board of
- ----------------------------------------------------------
Directors or any authorized committee thereof shall have the right to determine
or fix one or more of the following with respect to each series of Undesignated
Preferred Stock to the fullest extent permitted by law:
(i) The distinctive serial designation and the number of shares
constituting such series;
(ii) The dividend rates or the amount of dividends to be paid on
the shares of such series, whether dividends shall be cumulative and, if
so, from which date
3
<PAGE>
or dates, the payment date or dates for dividends, and the participating
and other rights, if any, with respect to dividends;
(iii) The voting rights and powers, full or limited, if any, of
the shares of such series;
(iv) Whether the shares of such series shall be redeemable and,
if so, the price or prices at which, and the terms and conditions on which,
such shares may be redeemed;
(v) The amount or amounts payable upon the shares of such
series and any preferences applicable thereto in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(vi) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and
the manner of its application, including the price or prices at which such
shares may be redeemed or purchased through the application of such fund;
(vii) Whether the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or of any
other series of the same or any other class or classes of stock of the
Corporation and, if so convertible or exchangeable, the conversion price or
prices, or the rate or rates of exchange, and the adjustments thereof, if
any, at which such conversion or exchange may be made, and any other terms
and conditions of such conversion or exchange;
(viii) The consideration for which the shares of such series
shall be issued;
(ix) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued shares of
Undesignated Preferred Stock (or series thereof) and whether such shares
may be reissued as shares of the same or any other class or series of
stock; and
(x) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors or any
authorized committee thereof may deem advisable.
2. Designated Preferred Stock.
--------------------------
(a) Designation and Amount. The Corporation shall designate One
----------------------
Hundred Thousand (100,000) shares of Preferred Stock as Series A Preferred
Stock, par value $.01 per
4
<PAGE>
share (the "Series A Preferred Stock"). The Series A Preferred Stock shall have
the preferences, limitations and rights set forth below.
(b) Ordinary Dividends. No dividends may be paid on, nor may any
------------------
other distribution be made upon, any shares of Common Stock or any stock ranking
junior to the Series A Preferred Stock of the Corporation unless and until the
Corporation shall declare and pay the dividend with respect to the Series A
Preferred Stock. The holders of the Series A Preferred Stock shall be entitled
to receive dividends payable on each share of Series A Preferred Stock, which
dividends shall accrue cumulatively commencing on date of original issue at a
preferred rate of eight percent (8%) per share (such amount to be appropriately
adjusted in the event of any stock dividend, stock split, subdivision, merger,
exchange, combination, or similar recapitalization affecting the number of
outstanding shares of Series A Preferred Stock) per year through the date at
which such Series A Preferred Stock is redeemed by the Corporation. Dividends
will be payable, if and when declared, in arrears on the first day of each
January, April, July and October. In the event the dividends are not paid as of
any such date, such dividends shall thereafter compound and accrue additional
cumulative dividends at the same rate.
(c) Liquidation, Dissolution or Winding Up.
--------------------------------------
(i) Distributions to Holders of Series A Preferred Stock. In the
----------------------------------------------------
event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, holders of each share of Series A
Preferred Stock outstanding shall be entitled to be paid out of the assets
of the Corporation available for distribution to stockholders before any
payment shall be made to the holders of any class of Common Stock or of any
stock ranking on liquidation junior to the Series A Preferred Stock an
amount equal to One Hundred Dollars ($100) per share of Series A Preferred
Stock held (appropriately adjusted for stock splits, stock dividends and
the like) plus any accrued but unpaid dividends thereon. After such
payment shall have been made in full to such holders of Series A Preferred
Stock, or funds necessary for such payment shall have been set aside by the
Corporation in trust for the account of such holders so as to be available
for such payment, any assets remaining available for distribution shall be
distributed ratably among the holders of the Common Stock based upon the
number of shares of Common Stock then held by each holder of Common Stock.
If upon any liquidation, dissolution, or winding up of the Corporation, the
assets to be distributed to the holders of the Series A Preferred Stock
under the foregoing shall be insufficient to permit payment to such
stockholders of the full preferential amounts aforesaid, then all of the
assets of the Corporation available for distribution to such holders shall
be distributed to such holders pro rata, so that each holder receives that
portion of the assets available for distribution as the number of shares of
Series A Preferred Stock held by such holder bears to the total number of
shares of Series A Preferred Stock then outstanding.
5
<PAGE>
(ii) Deemed Liquidations. A consolidation or merger of the
-------------------
Corporation (other than a consolidation or merger upon consummation of
which the holders of voting securities of the Corporation immediately prior
to such transaction continue to own directly or indirectly not less than a
majority of the voting power of the surviving corporation) or a sale of all
or substantially all of the assets of the Corporation or other similar
transaction shall be regarded as a liquidation, dissolution or winding up
of the affairs of the Corporation within the meaning of this Section 2(c).
(d) Voting Rights. Except as otherwise specifically required by law,
-------------
the holder of each share of Series A Preferred Stock shall not be entitled to
vote on any matters whatsoever, and shall not be entitled to notice of or
participation in, the meetings of the Stockholders of the Corporation.
(e) Restrictions and Limitations. Notwithstanding Section (2)(d)
----------------------------
hereof, the Corporation shall not without the affirmative vote or written
consent of the holders of a two-thirds majority of the then outstanding shares
of the Series A Preferred Stock, amend the Certificate of Incorporation or
Bylaws of the Corporation in any manner that adversely affects the preferences,
powers, rights or privileges of the holders of Series A Preferred Stock.
(f) No Reissuance of Series A Preferred Stock. No share or shares of
-----------------------------------------
the Series A Preferred Stock acquired by the Corporation by reason of
redemption, purchase or otherwise shall be reissued, and all such shares shall
be canceled, retired, and eliminated from the shares which the Corporation shall
be authorized to issue. The Corporation may from time to time take such
appropriate corporate action as may be necessary to reduce the authorized number
of shares of the Series A Preferred Stock accordingly.
(g) Notices of Record Date. In the event (i) the Corporation
----------------------
establishes a record date to determine the holders of any class of securities
who are entitled to receive any dividend or other distribution, or (ii) there
occurs any capital reorganization of the Corporation, any reclassification or
recapitalization of the capital stock of the Corporation, any merger or
consolidation of the Corporation, or any transfer of all or substantially all of
the assets of the Corporation to any other Corporation, or any other entity or
person, or any voluntary or involuntary dissolution, liquidation or winding up
of the Corporation, the Corporation shall mail to each holder of Series A
Preferred Stock at least twenty (20) days prior to the record date specified
therein, a notice specifying (a) the date of such record date for the purpose of
such dividend or distribution and a description of such dividend or
distribution, (b) the date on which any such reorganization, reclassification,
transfer, consolidation, merger, dissolution, liquidation or winding up is
expected to become effective, and (c) the time, if any, that is to be fixed, as
to when the holders of record of Common Stock (or other securities) shall be
entitled to exchange their shares of Common Stock (or other securities) for
securities or other property deliverable upon such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation or
winding up.
6
<PAGE>
(h) Miscellaneous.
-------------
(i) All notices referred to herein shall be in writing, and all
notices hereunder shall be deemed to have been given upon the earlier of
delivery thereof by hand delivery, by courier, or by standard form of
telecommunication, addressed: (x) if to the Corporation, to its principal
executive office (Attention: President) and to the transfer agent, if any,
for the Series A Preferred Stock or other agent of the Corporation
designated as permitted hereby or (y) if to any holder of the Series A
Preferred Stock or Common Stock, as the case may be, to such holder at the
address of such holder as listed in the stock record books of the
Corporation (which may include the records of any transfer agent for the
Series A Preferred Stock or Common Stock, as the case may be) or (z) to
such other address as the Corporation or any such holder, as the case may
be, shall have designated by notice similarly given.
(ii) The Corporation shall pay any and all stock transfer and
documentary stamp taxes that may be payable in respect of any issuance or
delivery of shares of Series A Preferred Stock or certificates representing
such shares or securities. The Corporation shall not, however, be required
to pay any such tax which may be payable in respect of any transfer
involved in the issuance or delivery of shares of Series A Preferred Stock
or Common Stock or other securities in a name other than that in which the
shares of Series A Preferred Stock with respect to which such shares or
other securities are issued or delivered were registered or in respect of
any payment to any person with respect to any such shares or securities
other than a payment to the registered holder thereof, and shall not be
required to make any such issuance, delivery or payment unless and until
the person otherwise entitled to such issuance, delivery or payment 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 or is not
payable.
(iii) The Corporation may appoint, and from time to time
discharge and change, a transfer agent of the Series A Preferred Stock.
Upon any such appointment or discharge of a transfer agent, the Corporation
shall send notice thereof by hand delivery, by courier, by standard form of
telecommunications or by first class mail (postage prepaid), to each holder
of record of Series A Preferred Stock.
ARTICLE V
---------
STOCKHOLDER ACTION
------------------
1. Action without Meeting. Except as otherwise provided herein, any action
----------------------
required or permitted to be taken by the stockholders of the Corporation at any
annual or special meeting of stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders and may not be taken or
effected by a written consent of stockholders in lieu thereof.
2. Special Meetings. Except as otherwise required by law and subject to the
----------------
rights, if any, of the holders of any series of preferred stock, special
meetings of the stockholders of the Corporation may be called only by the Board
of Directors pursuant to a resolution approved by the affirmative vote of a
majority of the directors then in office.
7
<PAGE>
ARTICLE VI
----------
DIRECTORS
---------
1. General. The business and affairs of the Corporation shall be managed
-------
by or under the direction of the Board of Directors except as otherwise provided
herein or required by law.
2. Election of Directors. Election of Directors need not be by written
---------------------
ballot unless the By-laws of the Corporation shall so provide.
3. Terms of Directors. The number of Directors of the Corporation shall
------------------
be fixed solely by resolution duly adopted from time to time by the Board of
Directors. The Directors, other than those who may be elected by the holders of
any series of Undesignated Preferred Stock of the Corporation, shall be
classified, with respect to the term for which they severally hold office, into
three classes, as nearly equal in number as possible. The initial Class I
Directors of the Corporation shall be Gerald H. Taylor and Christopher P. Torto;
the initial Class II Director of the Corporation shall be Christopher S.
Gaffney; and the initial Class III Directors of the Corporation shall be John G.
Hayes and Glenn R. Friedly. The initial Class I Directors shall serve for a term
expiring at the annual meeting of stockholders to be held in 2000, the initial
Class II Director shall serve for a term expiring at the annual meeting of
stockholders to be held in 2001, and the initial Class III Directors shall serve
for a term expiring at the annual meeting of stockholders to be held in 2002. At
each annual meeting of stockholders, the successor or successors of the class of
Directors whose term expires at that meeting shall be elected by a plurality of
the votes cast at such meeting and shall hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. The Directors elected to each class shall hold office until
their successors are duly elected and qualified or until their earlier
resignation or removal.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Amended and Restated Certificate of Incorporation, the
holders of any one or more series of Undesignated Preferred Stock shall have the
right, voting separately as a series or together with holders of other such
series, to elect Directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Amended and Restated
Certificate of Incorporation and any certificate of designation applicable
thereto, and such Directors so elected shall not be divided into classes
pursuant to this Article VI.3.
4. Vacancies. Subject to the rights, if any, of the holders of any
---------
series of Undesignated Preferred Stock to elect Directors and to fill vacancies
in the Board of Directors relating thereto, any and all vacancies in the Board
of Directors, however occurring, including, without limitation, by reason of an
increase in size of the Board of Directors, or the death, resignation,
disqualification or removal of a Director, shall be filled solely by the
affirmative vote of a majority of the remaining Directors then in office, even
if less than a quorum of the
8
<PAGE>
Board of Directors. Any Director appointed in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
Directors in which the new directorship was created or the vacancy occurred and
until such Director's successor shall have been duly elected and qualified or
until his or her earlier resignation or removal. Subject to the rights, if any,
of the holders of any series of Undesignated Preferred Stock to elect Directors,
when the number of Directors is increased or decreased, the Board of Directors
shall determine the class or classes to which the increased or decreased number
of Directors shall be apportioned; provided, however, that no decrease in the
number of Directors shall shorten the term of any incumbent Director. In the
event of a vacancy in the Board of Directors, the remaining Directors, except as
otherwise provided by law, may exercise the powers of the full Board of
Directors until the vacancy is filled.
5. Removal. Subject to the rights, if any, of any series of Undesignated
-------
Preferred Stock to elect Directors and to remove any Director whom the holders
of any such stock have the right to elect, any Director (including persons
elected by Directors to fill vacancies in the Board of Directors) may be removed
from office (i) only with cause and (ii) only by the affirmative vote of the
holders of two-thirds of the shares then entitled to vote at an election of
directors. At least 30 days prior to any meeting of stockholders at which it is
proposed that any Director be removed from office, written notice of such
proposed removal shall be sent to the Director whose removal will be considered
at the meeting.
ARTICLE VII
LIMITATION OF LIABILITY
-----------------------
A Director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (a) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the DGCL or (d) for any transaction
from which the Director derived an improper personal benefit. If the DGCL is
amended after the effective date of this Amended and Restated Certificate of
Incorporation to authorize corporate action further eliminating or limiting the
personal liability of Directors, then the liability of a Director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a Director at the time of such repeal or
modification.
9
<PAGE>
ARTICLE VIII
AMENDMENT OF BY-LAWS
--------------------
1. Amendment by Directors. Except as otherwise provided by law, the By-
----------------------
laws of the Corporation may be amended or repealed by the Board of Directors by
the affirmative vote of a majority of the Directors then in office.
2. Amendment by Stockholders. The By-laws of the Corporation may be
-------------------------
amended or repealed at any annual meeting of stockholders, or special meeting of
stockholders called for such purpose as provided in the By-laws, by the
affirmative vote of at least two-thirds of the shares present in person or
represented by proxy at such meeting and entitled to vote on such amendment or
repeal, voting together as a single class; provided, however, that if the Board
of Directors recommends that stockholders approve such amendment or repeal at
such meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of the majority of the shares present in person or represented
by proxy at such meeting and entitled to vote on such amendment or repeal,
voting together as a single class.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
-----------------------------------------
The Corporation reserves the right to amend or repeal this Amended and
Restated Certificate of Incorporation in the manner now or hereafter prescribed
by statute and this Amended and Restated Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation. No amendment or repeal of this Amended and Restated Certificate of
Incorporation shall be made unless the same is first approved by the Board of
Directors pursuant to a resolution adopted by the Board of Directors in
accordance with Section 242 of the DGCL, and, except as otherwise provided by
law, thereafter approved by the stockholders. Whenever any vote of the holders
of voting stock is required, and in addition to any other vote of holders of
voting stock that is required by this Amended and Restated Certificate of
Incorporation or by law, the affirmative vote of the majority of the outstanding
shares entitled to vote on such amendment or repeal, and the affirmative vote of
the majority of the outstanding shares of each class entitled to vote thereon as
a class, at a duly constituted meeting of stockholders called expressly for such
purpose shall be required to amend or repeal any provisions of this Amended and
Restated Certificate of Incorporation; provided, however, that the affirmative
vote of not less than two-thirds of the outstanding shares entitled to vote on
such amendment or repeal, and the affirmative vote of not less than two-thirds
of the outstanding shares of each class entitled to vote thereon as a class,
shall be required to amend or repeal any of the provisions of Article V, Article
VI, Article VII or Article IX of this Amended and Restated Certificate of
Incorporation.
10
<PAGE>
THIS AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed as of
this ____ day of _________________, 1999.
VOYAGER.NET, INC.
By:_____________________________
Name:
Title:
11
<PAGE>
EXHIBIT 3.2
FORM OF
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VOYAGER.NET, INC.
VOYAGER.NET, INC., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Voyager.net, Inc. The date of the
filing of its original Certificate of Incorporation (the "Original Certificate")
with the Secretary of State of the State of Delaware was September 18, 1998
under the name "Voyager Holdings, Inc." The name of the Corporation was changed
to "Voyager.net, Inc." on April 29, 1999, by way of amendment to the Original
Certificate. An Amended and Restated Certificate of Incorporation was filed
with the Secretary of the State of Delaware on ___________, 1999 (the "Amended
and Restated Certificate").
2. This Second Amended and Restated Certificate of Incorporation amends,
restates and integrates the provisions of the Amended and Restated Certificate
as heretofore amended, and (i) was duly adopted by the Board of Directors in
accordance with the provisions of Section 245 of the Delaware General
Corporation Law (the "DGCL"), (ii) was declared by the Board of Directors to be
advisable and in the best interests of the Corporation and was directed by the
Board of Directors to be submitted to and be considered by the stockholders of
the Corporation entitled to vote thereon for approval by the affirmative vote of
such stockholders in accordance with Section 242 of the DGCL and (iii) was duly
adopted by a consent in lieu of a meeting of the holders of the Corporation's
common stock, par value $.0001 per share (the "Common Stock"), and the holders
of the Corporation's Series A Preferred Stock, par value $.01 per share (the
"Series A Preferred Stock"), in accordance with the provisions of Sections 228
and 242 of the DGCL and the terms of the Amended and Restated Certificate of
Incorporation, as amended, such holders being all of the holders of the
Corporation's capital stock entitled to vote thereon.
3. The text of the Amended and Restated Certificate of Incorporation is
hereby amended and restated in its entirety to provide as herein set forth in
full.
ARTICLE I
---------
The name of the Corporation is Voyager.net, Inc.
<PAGE>
ARTICLE II
----------
The address of the Corporation's registered office in the State of Delaware
is c/o The Corporation Trust Company, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
-----------
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the DGCL.
ARTICLE IV
----------
CAPITAL STOCK
-------------
The total number of shares of capital stock which the Corporation shall
have authority to issue is Fifty Five Million (55,000,000) shares, of which (a)
Fifty Million (50,000,000) shares shall be common stock, par value $.0001 per
share (the "Common Stock"), and (b) Five Million (5,000,000) shares shall be
undesignated preferred stock, par value $.01 per share (the "Undesignated
Preferred Stock").
Except as otherwise restricted by this Second Amended and Restated
Certificate of Incorporation, the Board of Directors may, at any time and from
time to time, if all of the shares of capital stock which the Corporation is
authorized by this Second Amended and Restated Certificate of Incorporation to
issue have not been issued, subscribed for, or otherwise committed to be issued,
issue or take subscriptions for additional share of its capital stock up to the
amount authorized in this Second Amended and Restated Certificate of
Incorporation.
Any and all such shares issued for which the full consideration has been
paid or delivered shall be fully paid shares of capital stock, and the holder of
such shares shall not be liable for any further call or assessment or any other
payment thereon.
The number of authorized shares of the class of Undesignated Preferred
Stock may from time to time be increased or decreased (but not below the number
of shares outstanding) by the affirmative vote of the holders of a majority of
the outstanding shares of Common Stock entitled to vote, without a vote of the
holders of the Undesignated Preferred Stock (except as otherwise provided in any
certificate of designation of any series of Undesignated Preferred Stock).
The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or series of stock
shall be determined in accordance with, or as set forth below in, this Article
IV.
2
<PAGE>
A. COMMON STOCK
------------
Subject to all of the rights, powers and preferences of the Undesignated
Preferred Stock, and except as provided by law or in this Article IV (or in any
certificate of designation of any series of Undesignated Preferred Stock):
(a) the holders of the Common Stock shall have the exclusive right to
vote for the election of directors and on all other matters requiring
stockholder action, each share being entitled to one vote;
(b) dividends may be declared and paid or set apart for payment upon
the Common Stock out of any assets or funds of the Corporation legally available
for the payment of dividends, but only when and as declared by the Board of
Directors or any authorized committee thereof; and
(c) upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the net assets of the Corporation shall be
distributed pro rata to the holders of the Common Stock.
B. UNDESIGNATED PREFERRED STOCK
----------------------------
1. Authority to Issue. The total number of shares of Undesignated
------------------
Preferred Stock which the corporation shall have the authority to issue is Five
Million (5,000,000) shares. Subject to any limitations prescribed by law, the
Board of Directors or any authorized committee thereof is expressly authorized
to provide for the issuance of the shares of Undesignated Preferred Stock in one
or more series of such stock, and by filing a certificate pursuant to applicable
law of the State of Delaware, to establish or change from time to time the
number of shares to be included in each such series, and to fix the
designations, powers, preferences and the relative, participating, optional or
other special rights of the shares of each series and any qualifications,
limitations and restrictions thereof.
2. Powers, Preferences, Rights, Qualifications, Limitations and
------------------------------------------------------------
Restriction of Each Series of Undesignated Preferred Stock. The Board of
- ----------------------------------------------------------
Directors or any authorized committee thereof shall have the right to determine
or fix one or more of the following with respect to each series of Undesignated
Preferred Stock to the fullest extent permitted by law:
(a) The distinctive serial designation and the number of shares
constituting such series;
(b) The dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if so,
from which date or dates, the payment date or dates for dividends, and the
participating and other rights, if any, with respect to dividends;
3
<PAGE>
(c) The voting rights and powers, full or limited, if any, of the
shares of such series;
(d) Whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions on which, such
shares may be redeemed;
(e) The amount or amounts payable upon the shares of such series and
any preferences applicable thereto in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and
the manner of its application, including the price or prices at which such
shares may be redeemed or purchased through the application of such fund;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes of stock of the
Corporation and, if so convertible or exchangeable, the conversion price or
prices, or the rate or rates of exchange, and the adjustments thereof, if
any, at which such conversion or exchange may be made, and any other terms
and conditions of such conversion or exchange;
(h) The consideration for which the shares of such series shall be
issued;
(i) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of Undesignated
Preferred Stock (or series thereof) and whether such shares may be reissued
as shares of the same or any other class or series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors or any
authorized committee thereof may deem advisable.
ARTICLE V
STOCKHOLDER ACTION
------------------
1. Action without Meeting. Except as otherwise provided herein, any action
----------------------
required or permitted to be taken by the stockholders of the Corporation at any
annual or special meeting of stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders and may not be taken or
effected by a written consent of stockholders in lieu thereof.
2. Special Meetings. Except as otherwise required by law and subject to the
----------------
rights, if any, of the holders of any series of preferred stock, special
meetings of the stockholders of the Corporation may be called only by the Board
of Directors pursuant to a resolution approved by the affirmative vote of a
majority of the directors then in office.
4
<PAGE>
ARTICLE VI
DIRECTORS
---------
1. General. The business and affairs of the Corporation shall be managed
-------
by or under the direction of the Board of Directors except as otherwise provided
herein or required by law.
2. Election of Directors. Election of Directors need not be by written
---------------------
ballot unless the By-laws of the Corporation shall so provide.
3. Terms of Directors. The number of Directors of the Corporation shall
------------------
be fixed solely by resolution duly adopted from time to time by the Board of
Directors. The Directors, other than those who may be elected by the holders of
any series of Undesignated Preferred Stock of the Corporation, shall be
classified, with respect to the term for which they severally hold office, into
three classes, as nearly equal in number as possible. The initial Class I
Directors of the Corporation shall be Gerald H. Taylor and Christopher P. Torto;
the initial Class II Director of the Corporation shall be Christopher S.
Gaffney; and the initial Class III Directors of the Corporation shall be John G.
Hayes and Glenn R. Friedly. The initial Class I Directors shall serve for a term
expiring at the annual meeting of stockholders to be held in 2000, the initial
Class II Director shall serve for a term expiring at the annual meeting of
stockholders to be held in 2001, and the initial Class III Directors shall serve
for a term expiring at the annual meeting of stockholders to be held in 2002. At
each annual meeting of stockholders, the successor or successors of the class of
Directors whose term expires at that meeting shall be elected by a plurality of
the votes cast at such meeting and shall hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. The Directors elected to each class shall hold office until
their successors are duly elected and qualified or until their earlier
resignation or removal.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Second Amended and Restated Certificate of Incorporation, the
holders of any one or more series of Undesignated Preferred Stock shall have the
right, voting separately as a series or together with holders of other such
series, to elect Directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of this Second Amended and Restated
Certificate of Incorporation and any certificate of designations applicable
thereto, and such Directors so elected shall not be divided into classes
pursuant to this Article VI.3.
4. Vacancies. Subject to the rights, if any, of the holders of any
---------
series of Undesignated Preferred Stock to elect Directors and to fill vacancies
in the Board of Directors relating thereto, any and all vacancies in the Board
of Directors, however occurring, including, without limitation, by reason of an
increase in size of the Board of Directors, or the death, resignation,
disqualification or removal of a Director, shall be filled solely by the
affirmative vote of a majority of the remaining Directors then in office, even
if less than a quorum of the
5
<PAGE>
Board of Directors. Any Director appointed in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
Directors in which the new directorship was created or the vacancy occurred and
until such Director's successor shall have been duly elected and qualified or
until his or her earlier resignation or removal. Subject to the rights, if any,
of the holders of any series of Undesignated Preferred Stock to elect Directors,
when the number of Directors is increased or decreased, the Board of Directors
shall determine the class or classes to which the increased or decreased number
of Directors shall be apportioned; provided, however, that no decrease in the
number of Directors shall shorten the term of any incumbent Director. In the
event of a vacancy in the Board of Directors, the remaining Directors, except as
otherwise provided by law, may exercise the powers of the full Board of
Directors until the vacancy is filled.
5. Removal. Subject to the rights, if any, of any series of Undesignated
-------
Preferred Stock to elect Directors and to remove any Director whom the holders
of any such stock have the right to elect, any Director (including persons
elected by Directors to fill vacancies in the Board of Directors) may be removed
from office (i) only with cause and (ii) only by the affirmative vote of the
holders of two-thirds of the shares then entitled to vote at an election of
directors. At least 30 days prior to any meeting of stockholders at which it is
proposed that any Director be removed from office, written notice of such
proposed removal shall be sent to the Director whose removal will be considered
at the meeting.
ARTICLE VII
LIMITATION OF LIABILITY
-----------------------
A Director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (a) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the DGCL or (d) for any transaction
from which the Director derived an improper personal benefit. If the DGCL is
amended after the effective date of this Second Amended and Restated Certificate
of Incorporation to authorize corporate action further eliminating or limiting
the personal liability of Directors, then the liability of a Director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a Director at the time of such repeal or
modification.
6
<PAGE>
ARTICLE VIII
AMENDMENT OF BY-LAWS
--------------------
1. Amendment by Directors. Except as otherwise provided by law, the By-
----------------------
laws of the Corporation may be amended or repealed by the Board of Directors by
the affirmative vote of a majority of the Directors then in office.
2. Amendment by Stockholders. The By-laws of the Corporation may be
-------------------------
amended or repealed at any annual meeting of stockholders, or special meeting of
stockholders called for such purpose as provided in the By-laws, by the
affirmative vote of at least two-thirds of the shares present in person or
represented by proxy at such meeting and entitled to vote on such amendment or
repeal, voting together as a single class; provided, however, that if the Board
of Directors recommends that stockholders approve such amendment or repeal at
such meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of the majority of the shares present in person or represented
by proxy at such meeting and entitled to vote on such amendment or repeal,
voting together as a single class.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
-----------------------------------------
The Corporation reserves the right to amend or repeal this Second
Amended and Restated Certificate of Incorporation in the manner now or hereafter
prescribed by statute and this Second Amended and Restated Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation. No amendment or repeal of this Second Amended and
Restated Certificate of Incorporation shall be made unless the same is first
approved by the Board of Directors pursuant to a resolution adopted by the Board
of Directors in accordance with Section 242 of the DGCL, and, except as
otherwise provided by law, thereafter approved by the stockholders. Whenever
any vote of the holders of voting stock is required, and in addition to any
other vote of holders of voting stock that is required by this Second Amended
and Restated Certificate of Incorporation or by law, the affirmative vote of the
majority of the outstanding shares entitled to vote on such amendment or repeal,
and the affirmative vote of the majority of the outstanding shares of each class
entitled to vote thereon as a class, at a duly constituted meeting of
stockholders called expressly for such purpose shall be required to amend or
repeal any provisions of this Second Amended and Restated Certificate of
Incorporation; provided, however, that the affirmative vote of not less than
two-thirds of the outstanding shares entitled to vote on such amendment or
repeal, and the affirmative vote of not less than two-thirds of the outstanding
shares of each class entitled to vote thereon as a class, shall be required to
amend or repeal any of the provisions of Article V, Article VI, Article VII or
Article IX of this Second Amended and Restated Certificate of Incorporation.
7
<PAGE>
THIS SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed
as of this ____ day of __________________________, 1999.
VOYAGER.NET, INC.
By:__________________________________
Name:
Title:
8
<PAGE>
Exhibit 3.3
FORM OF
AMENDED AND RESTATED BY-LAWS
OF
VOYAGER.NET, INC.
(the "Corporation")
ARTICLE I
---------
Stockholders
------------
SECTION 1. Annual Meeting. The annual meeting of stockholders (any such
--------------
meeting being referred to in these By-laws as an "Annual Meeting") shall be held
at the hour, date and place within or without the United States which is fixed
by the majority of the Board of Directors, the Chairman of the Board, if one is
elected, or the President, which time, date and place may subsequently be
changed at any time by vote of the Board of Directors. If no Annual Meeting has
been held for a period of thirteen months after the Corporation's last Annual
Meeting, a meeting in lieu thereof may be held, and such meeting shall have, for
the purposes of these By-laws or otherwise, all the force and effect of an
Annual Meeting. Any and all references hereafter in these By-laws to an Annual
Meeting or Annual Meetings also shall be deemed to refer to any meeting(s) in
lieu thereof.
SECTION 2. Special Meetings. Except as otherwise required by law and
----------------
subject to the rights, if any, of the holders of any series of preferred stock,
special meetings of the stockholders of the Corporation may be called only by
the Board of Directors pursuant to a resolution approved by the affirmative vote
of a majority of the directors then in office.
SECTION 3. Notice of Stockholder Business and Nominations.
----------------------------------------------
(a) Annual Meetings of Stockholders.
-------------------------------
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
stockholders may be made at an Annual Meeting (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in this
By-law, who is entitled to vote at the meeting and who complied with the
notice procedures set forth in this By-law.
(2) For nominations or other business to be properly brought before
an Annual Meeting by a stockholder pursuant to clause (c) of paragraph
(a)(1) of this By-law, the stockholder must have given timely notice
thereof in writing to the Secretary of
<PAGE>
the Corporation and such other business must be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be delivered
to the Secretary at the principal executive offices of the Corporation not
later than the close of business on the 90th day nor earlier than the close
of business on the 120th day prior to the first anniversary of the
preceding year's Annual Meeting; provided, however, that in the event that
the date of the Annual Meeting is more than 30 days before or more than 60
days after such anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the close of business on the 120th
day prior to such Annual Meeting and not later than the close of business
on the later of the 90th day prior to such Annual Meeting or the 10th day
following the day on which public announcement of the date of such meeting
is first made. In no event shall the public announcement of an adjournment
of an Annual Meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice shall
set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection as a director all information relating to such
person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder (including
such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if
any, on whose behalf the proposal is made; and (c) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such
beneficial owner, and (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this By-law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement naming all of the nominees
for director or specifying the size of the increased Board of Directors
made by the Corporation at least 100 days prior to the first anniversary of
the preceding year's Annual Meeting, a stockholder's notice required by
this By-law shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following
the day on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
--------------------------------
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the
2
<PAGE>
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-law. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this By-law shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 120th day prior to such special
meeting and not later than the close of business on the later of the 90th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(c) General.
-------
(1) Only such persons who are nominated in accordance with the
procedures set forth in this By-law shall be eligible for election as and
to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this By-law. If the Board of
Directors or a designated committee thereof determines that any stockholder
proposal or nomination was not made in a timely fashion in accordance with
the provisions of this By-law or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
By-law in any material respect, such proposal or nomination shall not be
presented for action at the Annual Meeting in question. If neither the
Board of Directors nor such committee makes a determination as to the
validity of any stockholder proposal or nomination in the manner set forth
above, the presiding officer of the Annual Meeting shall determine whether
the stockholder proposal or nomination was made in accordance with the
terms of this By-law. If the presiding officer determines that any
stockholder proposal or nomination was not made in a timely fashion in
accordance with the provisions of this By-law or that the information
provided in a stockholder's notice does not satisfy the information
requirements of this By-law in any material respect, such proposal or
nomination shall not be presented for action at the Annual Meeting in
question. If the Board of Directors, a designated committee thereof or the
presiding officer determines that a stockholder proposal or nomination was
made in accordance with the requirements of this By-law, the presiding
officer shall so declare at the Annual Meeting and ballots shall be
provided for use at the meeting with respect to such proposal or
nomination.
3
<PAGE>
(2) For purposes of this By-law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission (including, without limitation, a Form 8-K) pursuant to Section
13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-law, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-law. Nothing in this By-law shall be deemed
to affect any rights of (i) stockholders to request inclusion of proposals
in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) the holders of any series of preferred stock to elect
directors under specified circumstances.
SECTION 4. Matters to be Considered at Special Meetings. Only those
--------------------------------------------
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
SECTION 5. Notice of Meetings; Adjournments. A written notice of each
--------------------------------
Annual Meeting stating the hour, date and place of such Annual Meeting shall be
given by the Secretary or an Assistant Secretary (or other person authorized by
these By-laws or by law) not less than 10 days nor more than 60 days before the
Annual Meeting, to each stockholder entitled to vote thereat and to each
stockholder who, by law or under the Amended and Restated Certificate of
Incorporation of the Corporation (as the same may hereafter be amended and/or
restated, the "Certificate") or under these By-laws, is entitled to such notice,
by delivering such notice to him or by mailing it, postage prepaid, addressed to
such stockholder at the address of such stockholder as it appears on the
Corporation's stock transfer books. Such notice shall be deemed to be given
when hand delivered to such address or deposited in the mail so addressed, with
postage prepaid.
Notice of all special meetings of stockholders shall be given in the same
manner as provided for Annual Meetings, except that the written notice of all
special meetings shall state the purpose or purposes for which the meeting has
been called.
Notice of an Annual Meeting or special meeting of stockholders need not be
given to a stockholder if a written waiver of notice is signed before or after
such meeting by such stockholder or if such stockholder attends such meeting,
unless such attendance was for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting was not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any Annual Meeting or special meeting of stockholders need be
specified in any written waiver of notice.
4
<PAGE>
The Board of Directors may postpone and reschedule any previously scheduled
Annual Meeting or special meeting of stockholders and any record date with
respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting has been sent or made pursuant to Section 3 of this
Article I of these By-laws or otherwise. In no event shall the public
announcement of an adjournment, postponement or rescheduling of any previously
scheduled meeting of stockholders commence a new time period for the giving of a
stockholder's notice under Section 3 of this Article I of these By-laws.
When any meeting is convened, the presiding officer may adjourn the meeting
if (a) no quorum is present for the transaction of business, (b) the Board of
Directors determines that adjournment is necessary or appropriate to enable the
stockholders to consider fully information which the Board of Directors
determines has not been made sufficiently or timely available to stockholders,
or (c) the presiding officer determines that adjournment is otherwise in the
best interests of the Corporation. When any Annual Meeting or special meeting
of stockholders is adjourned to another hour, date or place, notice need not be
given of the adjourned meeting other than an announcement at the meeting at
which the adjournment is taken of the hour, date and place to which the meeting
is adjourned; provided, however, that if the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote thereat and each stockholder who, by law or under the
Certificate or these By-laws, is entitled to such notice.
SECTION 6. Quorum. A majority of the shares entitled to vote, present in
------
person or represented by proxy, shall constitute a quorum at any meeting of
stockholders. If less than a quorum is present at a meeting, the holders of
voting stock representing a majority of the voting power present at the meeting
or the presiding officer may adjourn the meeting from time to time, and the
meeting may be held as adjourned without further notice, except as provided in
Section 5 of this Article I. At such adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally noticed. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 7. Voting and Proxies. Stockholders shall have one vote for each
------------------
share of stock entitled to vote owned by them of record according to the books
of the Corporation, unless otherwise provided by law or by the Certificate.
Stockholders may vote either in person or by written proxy, but no proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. Proxies shall be filed with the Secretary of the
meeting before being voted. Except as otherwise limited therein or as otherwise
provided by law, proxies shall entitle the persons authorized thereby to vote at
any adjournment of such meeting, but they shall not be valid after final
adjournment of such meeting. A proxy with respect to stock held in the name of
two or more persons shall be valid if executed by or on
5
<PAGE>
behalf of any one of them unless at or prior to the exercise of the proxy the
Corporation receives a specific written notice to the contrary from any one of
them.
SECTION 8. Action at Meeting. When a quorum is present at any meeting,
-----------------
any matter before any meeting of stockholders shall be decided by a majority of
the votes properly cast on such matter other than an election to office, except
where a larger vote is required by law, by the Certificate or by these By-laws.
Any election of directors by stockholders shall be determined by a plurality of
the votes properly cast on the election of directors, except where a larger vote
is required by law, by the Certificate or by these By-laws. The Corporation
shall not directly or indirectly vote any shares of its own stock; provided,
however, that the Corporation may vote shares which it holds in a fiduciary
capacity to the extent permitted by law.
SECTION 9. Stockholder Lists. The Secretary or an Assistant Secretary (or
-----------------
the Corporation's transfer agent or other person authorized by these By-laws or
by law) shall prepare and make, at least 10 days before every Annual Meeting or
special 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 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 the hour, date and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 10. Presiding Officer. The Chairman of the Board, if one is
-----------------
elected, or if no elected or in his or her absence, the President, shall
preside at all Annual Meetings or special meetings of stockholders and shall
have the power, among other things, to adjourn such meeting at any time and from
time to time, subject to Sections 5 and 6 of this Article I. The order of
business and all other matters of procedure at any meeting of the stockholders
shall be determined by the presiding officer.
SECTION 11. Voting Procedures and Inspectors of Elections. The
---------------------------------------------
Corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at
a meeting of stockholders, the presiding officer shall appoint one or more
inspectors to act at the meeting. Any inspector may, but need not, be an
officer, employee or agent of the Corporation. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall perform such
6
<PAGE>
duties as are required by the General Corporation Law of the State of Delaware,
as amended from time to time (the "DGCL"), including the counting of all votes
and ballots. The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the inspectors. The
presiding officer may review all determinations made by the inspectors, and in
so doing the presiding officer shall be entitled to exercise his or her sole
judgment and discretion and he or she shall not be bound by any determinations
made by the inspectors. All determinations by the inspectors and, if applicable,
the presiding officer, shall be subject to further review by any court of
competent jurisdiction.
ARTICLE II
----------
Directors
---------
SECTION 1. Powers. The business and affairs of the Corporation shall be
------
managed by or under the direction of the Board of Directors except as otherwise
provided by the Certificate or required by law.
SECTION 2. Number and Terms. The number of directors of the Corporation
----------------
shall be fixed solely by resolution duly adopted from time to time by the Board
of Directors. The directors shall hold office as provided in the Certificate.
SECTION 3. Qualification. No director need be a stockholder of the
-------------
Corporation.
SECTION 4. Vacancies. Subject to the rights, if any, of the holders of
---------
any series of preferred stock to elect directors and to fill vacancies in the
Board of Directors relating thereto, any and all vacancies in the Board of
Directors, however occurring, including, without limitation, by reason of an
increase in size of the Board of Directors, or the death, resignation,
disqualification or removal of a director, shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even
if less than a quorum of the Board of Directors. Any director appointed in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been duly elected and qualified or until his or her earlier resignation or
removal. Subject to the rights, if any, of the holders of any series of
preferred stock to elect directors, when the number of directors is increased or
decreased, the Board of Directors shall determine the class or classes to which
the increased or decreased number of directors shall be apportioned; provided,
however, that no decrease in the number of directors shall shorten the term of
any incumbent director. In the event of a vacancy in the Board of Directors,
the remaining directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled.
7
<PAGE>
SECTION 5. Removal. Directors may be removed from office in the manner
-------
provided in the Certificate.
SECTION 6. Resignation. A director may resign at any time by giving
-----------
written notice to the Chairman of the Board, if one is elected, the President or
the Secretary. A resignation shall be effective upon receipt, unless the
resignation otherwise provides.
SECTION 7. Regular Meetings. The regular annual meeting of the Board of
----------------
Directors shall be held, without notice other than this Section 7, on the same
date and at the same place as the Annual Meeting following the close of such
meeting of stockholders. Other regular meetings of the Board of Directors may
be held at such hour, date and place as the Board of Directors may by resolution
from time to time determine without notice other than such resolution.
SECTION 8. Special Meetings. Special meetings of the Board of Directors
----------------
may be called, orally or in writing, by or at the request of a majority of the
directors, the Chairman of the Board, if one is elected, or the President. The
person calling any such special meeting of the Board of Directors may fix the
hour, date and place thereof.
SECTION 9. Notice of Meetings. Notice of the hour, date and place of all
------------------
special meetings of the Board of Directors shall be given to each director by
the Secretary or an Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by the Chairman of the Board, if one is
elected, or the President or such other officer designated by the Chairman of
the Board, if one is elected, or the President. Notice of any special meeting
of the Board of Directors shall be given to each director in person, by
telephone, or by facsimile, telex, telecopy, telegram, or other written form of
electronic communication, sent to his or her business or home address, at least
24 hours in advance of the meeting, or by written notice mailed to his or her
business or home address, at least 48 hours in advance of the meeting. Such
notice shall be deemed to be delivered when hand delivered to such address, read
to such director by telephone, deposited in the mail so addressed, with postage
thereon prepaid if mailed, dispatched or transmitted if faxed, telexed or
telecopied, or when delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for 30 days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. It shall not be necessary to give any
notice of the hour, date or place of any meeting adjourned for less than 30 days
or of the business to be transacted thereat, other than an announcement at the
meeting at which such adjournment is taken of the hour, date and place to which
the meeting is adjourned.
A written waiver of notice signed before or after a meeting by a director
and filed with the records of the meeting shall be deemed to be equivalent to
notice of the meeting. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except
8
<PAGE>
where a director attends a meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because such meeting
is not lawfully called or convened. Except as otherwise required by law, by the
Certificate or by these By-laws, neither the business to be transacted at, nor
the purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 10. Quorum. At any meeting of the Board of Directors, a majority
------
of the total number of directors shall constitute a quorum for the transaction
of business, but if less than a quorum is present at a meeting, a majority of
the directors present may adjourn the meeting from time to time, and the meeting
may be held as adjourned without further notice, except as provided in Section 9
of this Article II. Any business which might have been transacted at the
meeting as originally noticed may be transacted at such adjourned meeting at
which a quorum is present.
SECTION 11. Action at Meeting. At any meeting of the Board of Directors
-----------------
at which a quorum is present, a majority of the directors present may take any
action on behalf of the Board of Directors, unless otherwise required by law, by
the Certificate or by these By-laws.
SECTION 12. Action by Consent. Any action required or permitted to be
-----------------
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing. Such written
consent shall be filed with the records of the meetings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
SECTION 13. Manner of Participation. Directors may participate in
-----------------------
meetings of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these By-laws.
SECTION 14. Committees. The Board of Directors, by vote of a majority of
----------
the directors then in office, may elect from its number one or more committees,
including, without limitation, an Executive Committee, a Compensation Committee,
a Stock Option Committee and an Audit Committee, and may delegate thereto some
or all of its powers except those which by law, by the Certificate or by these
By-laws may not be delegated. Except as the Board of Directors may otherwise
determine, any such committee may make rules for the conduct of its business,
but unless otherwise provided by the Board of Directors or in such rules, its
business shall be conducted so far as possible in the same manner as is provided
by these By-laws for the Board of Directors. All members of such committees
shall hold such offices at the pleasure of the Board of Directors. The Board of
Directors may abolish any such committee at any time. Any committee to which
the Board of Directors delegates any of its powers or duties shall keep records
of its meetings and shall report its action to the Board of Directors.
9
<PAGE>
SECTION 15. Compensation of Directors. Directors shall receive such
-------------------------
compensation for their services as shall be determined by a majority of the
Board of Directors provided that directors who are serving the Corporation as
employees and who receive compensation for their services as such, shall not
receive any salary or other compensation for their services as directors of the
Corporation.
ARTICLE III
-----------
Officers
--------
SECTION 1. Enumeration. The officers of the Corporation shall consist of
-----------
a President, a Treasurer, a Secretary and such other officers, including,
without limitation, a Chairman of the Board of Directors, a Chief Executive
Officer and one or more Vice Presidents (including Executive Vice Presidents or
Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and
Assistant Secretaries, as the Board of Directors may determine.
SECTION 2. Election. At the regular annual meeting of the Board following
--------
the Annual Meeting, the Board of Directors shall elect the President, the
Treasurer and the Secretary. Other officers may be elected by the Board of
Directors at such regular annual meeting of the Board of Directors or at any
other regular or special meeting.
SECTION 3. Qualification. No officer need be a stockholder or a director.
-------------
Any person may occupy more than one office of the Corporation at any time. Any
officer may be required by the Board of Directors to give bond for the faithful
performance of his or her duties in such amount and with such sureties as the
Board of Directors may determine.
SECTION 4. Tenure. Except as otherwise provided by the Certificate or by
------
these By-laws, each of the officers of the Corporation shall hold office until
the regular annual meeting of the Board of Directors following the next Annual
Meeting and until his or her successor is elected and qualified or until his or
her earlier resignation or removal.
SECTION 5. Resignation. Any officer may resign by delivering his or her
-----------
written resignation to the Corporation addressed to the President or the
Secretary, and such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
SECTION 6. Removal. Except as otherwise provided by law, the Board of
-------
Directors may remove any officer with or without cause by the affirmative vote
of a majority of the directors then in office.
10
<PAGE>
SECTION 7. Absence or Disability. In the event of the absence or
---------------------
disability of any officer, the Board of Directors may designate another officer
to act temporarily in place of such absent or disabled officer.
SECTION 8. Vacancies. Any vacancy in any office may be filled for the
---------
unexpired portion of the term by the Board of Directors.
SECTION 9. President. The President shall, subject to the direction of
---------
the Board of Directors, have general supervision and control of the
Corporation's business. If there is no Chairman of the Board or if he or she is
absent, the President shall preside, when present, at all meetings of
stockholders and of the Board of Directors. The President shall have such other
powers and perform such other duties as the Board of Directors may from time to
time designate.
SECTION 10. Chairman of the Board. The Chairman of the Board, if one is
---------------------
elected, shall preside, when present, at all meetings of the stockholders and of
the Board of Directors. The Chairman of the Board shall have such other powers
and shall perform such other duties as the Board of Directors may from time to
time designate.
SECTION 11. Chief Executive Officer. The Chief Executive Officer, if one
-----------------------
is elected, shall have such powers and shall perform such duties as the Board of
Directors may from time to time designate.
SECTION 12. Vice Presidents and Assistant Vice Presidents. Any Vice
---------------------------------------------
President (including any Executive Vice President or Senior Vice President) and
any Assistant Vice President shall have such powers and shall perform such
duties as the Board of Directors or the Chief Executive Officer may from time to
time designate.
SECTION 13. Treasurer and Assistant Treasurers. The Treasurer shall,
----------------------------------
subject to the direction of the Board of Directors and except as the Board of
Directors or the Chief Executive Officer may otherwise provide, have general
charge of the financial affairs of the Corporation and shall cause to be kept
accurate books of account. The Treasurer shall have custody of all funds,
securities, and valuable documents of the Corporation. He or she shall have such
other duties and powers as may be designated from time to time by the Board of
Directors or the Chief Executive Officer.
Any Assistant Treasurer shall have such powers and perform such duties as
the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 14. Secretary and Assistant Secretaries. The Secretary shall
-----------------------------------
record all the proceedings of the meetings of the stockholders and the Board of
Directors (including committees of the Board) in books kept for that purpose. In
his or her absence from any such meeting, a temporary secretary chosen at the
meeting shall record the proceedings thereof.
11
<PAGE>
The Secretary shall have charge of the stock ledger (which may, however, be kept
by any transfer or other agent of the Corporation). The Secretary shall have
custody of the seal of the Corporation, and the Secretary, or an Assistant
Secretary, shall have authority to affix it to any instrument requiring it, and,
when so affixed, the seal may be attested by his or her signature or that of an
Assistant Secretary. The Secretary shall have such other duties and powers as
may be designated from time to time by the Board of Directors or the Chief
Executive Officer. In the absence of the Secretary, any Assistant Secretary may
perform his or her duties and responsibilities.
Any Assistant Secretary shall have such powers and perform such duties as
the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 15. Other Powers and Duties. Subject to these By-laws and to such
-----------------------
limitations as the Board of Directors may from time to time prescribe, the
officers of the Corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the Board of Directors or the Chief Executive
Officer.
ARTICLE IV
----------
Capital Stock
-------------
SECTION 1. Certificates of Stock. Each stockholder shall be entitled to a
---------------------
certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall be
signed by the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary. The Corporation seal and the signatures by the
Corporation's officers, the transfer agent or the registrar may be facsimiles.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed on such certificate shall have 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 time of its issue. Every certificate
for shares of stock which are subject to any restriction on transfer and every
certificate issued when the Corporation is authorized to issue more than one
class or series of stock shall contain such legend with respect thereto as is
required by law.
SECTION 2. Transfers. Subject to any restrictions on transfer and unless
---------
otherwise provided by the Board of Directors, shares of stock may be transferred
only on the books of the Corporation by the surrender to the Corporation or its
transfer agent of the certificate theretofore properly endorsed or accompanied
by a written assignment or power of attorney properly executed, with transfer
stamps (if necessary) affixed, and with such proof of the authenticity of
signature as the Corporation or its transfer agent may reasonably require.
12
<PAGE>
SECTION 3. Record Holders. Except as may otherwise be required by law, by
--------------
the Certificate or by these By-laws, the Corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to vote with
respect thereto, regardless of any transfer, pledge or other disposition of such
stock, until the shares have been transferred on the books of the Corporation in
accordance with the requirements of these By-laws.
It shall be the duty of each stockholder to notify the Corporation of his
or her post office address and any changes thereto.
SECTION 4. Record Date. In order that the Corporation may determine the
-----------
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date: (a) in the case of
determination of stockholders entitled to vote at any meeting of stockholders,
shall, unless otherwise required by law, not be more than 60 nor less than 10
days before the date of such meeting and (b) in the case of any other action,
shall not be more than 60 days prior to such other action. If no record date is
fixed: (i) 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
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held and (ii) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
SECTION 5. Replacement of Certificates. In case of the alleged loss,
---------------------------
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
ARTICLE V
---------
Indemnification
---------------
SECTION 1. Definitions. For purposes of this Article:
-----------
(a) "Director" means any person who serves or has served the Corporation as
a director on the Board of Directors of the Corporation.
(b) "Officer" means any person who serves or has served the Corporation as
an officer appointed by the Board of Directors of the Corporation;
13
<PAGE>
(c) "Non-Officer Employee" means any person who serves or has served as an
employee of the Corporation, but who is not or was not a Director or Officer;
(d) "Proceeding" means any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution mechanism, inquiry, investigation,
administrative hearing or other proceeding, whether civil, criminal,
administrative, arbitrative or investigative;
(e) "Expenses" means all reasonable attorneys' fees, retainers, court
costs, transcript costs, fees of expert witnesses, private investigators and
professional advisors (including, without limitation, accountants and investment
bankers), travel expenses, duplicating costs, printing and binding costs, costs
of preparation of demonstrative evidence and other courtroom presentation aids
and devices, costs incurred in connection with document review, organization,
imaging and computerization, telephone charges, postage, delivery service fees,
and all other disbursements, costs or expenses of the type customarily incurred
in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, settling or otherwise
participating in, a Proceeding;
(f) "Corporate Status" describes the status of a person who (i) in the case
of a Director, is or was a director of the Corporation and is or was acting in
such capacity, (ii) in the case of an Officer, is or was an officer, employee or
agent of the Corporation or is or was a director, officer, employee or agent of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such Officer is or was serving at the request of the
Corporation, and (iii) in the case of a Non-Officer Employee, is or was an
employee of the Corporation or is or was a director, officer, employee or agent
of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such Non-Officer Employee is or was serving at
the request of the Corporation. For purposes of subsection (ii) of this Section
1(f), an officer or director of the Company who is serving as a director,
partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to
be serving at the request of the Company;
(g) "Disinterested Director" means, with respect to each Proceeding in
respect of which indemnification is sought hereunder, a Director of the
Corporation who is not and was not a party to such Proceeding; and
(h) "Subsidiary" shall mean any corporation, partnership, limited liability
company, joint venture, trust or other entity of which the Corporation owns
(either directly or through or together with another Subsidiary of the
Corporation) either (i) a general partner, managing member or other similar
interest or (ii) (A) 50% or more of the voting power of the voting capital
equity interests of such corporation, partnership, limited liability company,
joint venture or other entity, or (B) 50% or more of the outstanding voting
capital stock or other voting equity interests of such corporation, partnership,
limited liability company, joint venture or other entity.
14
<PAGE>
SECTION 2. Indemnification of Directors and Officers. Subject to the
-----------------------------------------
operation of Section 4 of this Article V of these Bylaws, each Director and
Officer shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment) against any and
all Expenses, judgments, penalties, fines and amounts reasonably paid in
settlement that are incurred by such Director or Officer or on such Director's
or Officer's behalf in connection with any threatened, pending or completed
Proceeding or any claim, issue or matter therein, which such Director or Officer
is, or is threatened to be made, a party to or participant in by reason of such
Director's or Officer's Corporate Status, if such Director or Officer acted in
good faith and in a manner such Director or Officer reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The rights of indemnification provided by this Section 2 shall
continue as to a Director or Officer after he or she has ceased to be a Director
or Officer and shall inure to the benefit of his or her heirs, executors,
administrators and personal representatives. Notwithstanding the foregoing, the
Corporation shall indemnify any Director or Officer seeking indemnification in
connection with a Proceeding initiated by such Director or Officer only if such
Proceeding was authorized by the Board of Directors of the Corporation, unless
such Proceeding was brought to enforce an Officer or Director's rights to
Indemnification under these by-laws.
SECTION 3. Indemnification of Non-Officer Employees. Subject to the
----------------------------------------
operation of Section 4 of this Article V of these Bylaws, each Non-Officer
Employee may, in the discretion of the Board of Directors of the Corporation, be
indemnified by the Corporation to the fullest extent authorized by the DGCL, as
the same exists or may hereafter be amended, against any or all Expenses,
judgments, penalties, fines and amounts reasonably paid in settlement that are
incurred by such Non-Officer Employee or on such Non-Officer Employee's behalf
in connection with any threatened, pending or completed Proceeding, or any
claim, issue or matter therein, which such Non-Officer Employee is, or is
threatened to be made, a party to or participant in by reason of such Non-
Officer Employee's Corporate Status, if such Non-Officer Employee acted in good
faith and in a manner such Non-Officer Employee reasonably believed to be in or
not opposed to the best interests of the Corporation and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The rights of indemnification provided by this Section 3 shall exist
as to a Non-Officer Employee after he or she has ceased to be a Non-Officer
Employee and shall inure to the benefit of his or her heirs, personal
representatives, executors and administrators. Notwithstanding the foregoing,
the Corporation may indemnify any Non-Officer Employee seeking indemnification
in connection with a Proceeding initiated by such Non-Officer Employee only if
such Proceeding was authorized by the Board of Directors of the Corporation.
SECTION 4. Good Faith. Unless ordered by a court, no indemnification
----------
shall be provided pursuant to this Article V to a Director, to an Officer or to
a Non-Officer Employee
15
<PAGE>
unless a determination shall have been made that such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation and, with respect to any criminal Proceeding,
such person had no reasonable cause to believe his or her conduct was unlawful.
Such determination shall be made by (a) a majority vote of the Disinterested
Directors, even though less than a quorum of the Board of Directors, (b) a
committee comprised of Disinterested Directors, such committee having been
designated by a majority vote of the Disinterested Directors (even though less
than a quorum), (c) if there are no such Disinterested Directors, or if a
majority of Disinterested Directors so directs, by independent legal counsel in
a written opinion, or (d) by the stockholders of the Corporation.
SECTION 5. Advancement of Expenses to Directors Prior to Final
---------------------------------------------------
Disposition. The Corporation shall advance all Expenses incurred by or on behalf
- -----------
of any Director in connection with any Proceeding in which such Director is
involved by reason of such Director's Corporate Status within 10 days after the
receipt by the Corporation of a written statement from such Director requesting
such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by such Director and shall be preceded or
accompanied by an undertaking by or on behalf of such Director to repay any
Expenses so advanced if it shall ultimately be determined that such Director is
not entitled to be indemnified against such Expenses.
SECTION 6. Advancement of Expenses to Officers and Non-Officer Employees
-------------------------------------------------------------
Prior to Final Disposition.
- --------------------------
(a) Advancement to Officers. The Corporation may, at the discretion of the
-----------------------
Board of Directors of the Corporation, advance any or all Expenses incurred by
or on behalf of any Officer in connection with any Proceeding in which such is
involved by reason of such Officer's Corporate Status upon the receipt by the
Corporation of a statement or statements from such Officer requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by such Officer and shall be preceded or
accompanied by an undertaking by or on behalf of such to repay any Expenses so
advanced if it shall ultimately be determined that such Officer is not entitled
to be indemnified against such Expenses.
(b) Advancement to Non-Officer Employees. The Corporation may, at the
------------------------------------
discretion of the Board of Directors or of any Officer who is authorized to act
on behalf of the Corporation, advance any or all Expenses incurred by or on
behalf of any Non-Officer Employee in connection with any Proceeding in which
such Non-Officer Employee is involved by reason of such Non-Officer Employee's
Corporate Status upon the receipt by the Corporation of a statement or
statements from such Non-Officer Employee requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by such Non-Officer Employee and shall be preceded or accompanied by an
undertaking by or on
16
<PAGE>
behalf of such Non-Officer Employee to repay any Expenses so advanced if it
shall ultimately be determined that such Non-Officer Employee is not entitled to
be indemnified against such Expenses.
SECTION 7. Contractual Nature of Rights. The foregoing provisions of this
----------------------------
Article V shall be deemed to be a contract between the Corporation and each
Director and Officer entitled to the benefits hereof at any time while this
Article V is in effect, and any repeal or modification thereof shall not affect
any rights or obligations then existing with respect to any state of facts then
or theretofore existing or any Proceeding theretofore or thereafter brought
based in whole or in part upon any such state of facts. If a claim for
indemnification or advancement of Expenses hereunder by a Director or Officer is
not paid in full by the Corporation within (a) 60 days after receipt by the
Corporation's of a written claim for indemnification, or (b) in the case of a
Director, 10 days after receipt by the Corporation of documentation of Expenses
and the required undertaking, such Director or Officer may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim, and if successful in whole or in part, such Director or Officer shall
also be entitled to be paid the expenses of prosecuting such claim. The failure
of the Corporation (including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination concerning
the permissibility of such indemnification or, in the case of a Director,
advancement of Expenses, under this Article V shall not be a defense to the
action and shall not create a presumption that such indemnification or
advancement is not permissible.
SECTION 8. Non-Exclusivity of Rights. The rights to indemnification and
-------------------------
advancement of Expenses set forth in this Article V shall not be exclusive of
any other right which any Director, Officer, or Non-Officer Employee may have or
hereafter acquire under any statute, provision of the Certificate or these
Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.
SECTION 9. Insurance. The Corporation may maintain insurance, at its
---------
expense, to protect itself and any Director, Officer or Non-Officer Employee
against any liability of any character asserted against or incurred by the
Corporation or any such Director, Officer or Non-Officer Employee, or arising
out of any such person's Corporate Status, whether or not the Corporation would
have the power to indemnify such person against such liability under the DGCL or
the provisions of this Article V.
ARTICLE VI
----------
Miscellaneous Provisions
------------------------
SECTION 1. Fiscal Year. Except as otherwise determined by the Board of
-----------
Directors, the fiscal year of the Corporation shall end on the last day of
December of each year.
17
<PAGE>
SECTION 2. Seal. The Board of Directors shall have power to adopt and
----
alter the seal of the Corporation.
SECTION 3. Execution of Instruments. All deeds, leases, transfers,
------------------------
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without director action may
be executed on behalf of the Corporation by the Chairman of the Board, if one is
elected, the President or the Treasurer or any other officer, employee or agent
of the Corporation as the Board of Directors or Executive Committee may
authorize.
SECTION 4. Voting of Securities. Unless the Board of Directors otherwise
--------------------
provides, the Chairman of the Board, if one is elected, the President or the
Treasurer may waive notice of and act on behalf of this Corporation, or appoint
another person or persons to act as proxy or attorney in fact for this
Corporation with or without discretionary power and/or power of substitution, at
any meeting of stockholders or shareholders of any other corporation or
organization, any of whose securities are held by this Corporation.
SECTION 5. Resident Agent. The Board of Directors may appoint a resident
--------------
agent upon whom legal process may be served in any action or proceeding against
the Corporation.
SECTION 6. Corporate Records. The original or attested copies of the
-----------------
Certificate, By-laws and records of all meetings of the incorporators,
stockholders and the Board of Directors and the stock transfer books, which
shall contain the names of all stockholders, their record addresses and the
amount of stock held by each, may be kept outside the State of Delaware and
shall be kept at the principal office of the Corporation, at the office of its
counsel or at an office of its transfer agent or at such other place or places
as may be designated from time to time by the Board of Directors.
SECTION 7. Amendment of By-laws.
--------------------
(a) Amendment by Directors. Except as provided otherwise by law, these
----------------------
By-laws may be amended or repealed by the Board of Directors by the affirmative
vote of a majority of the directors then in office.
(b) Amendment by Stockholders. These By-laws may be amended or repealed
-------------------------
at any Annual Meeting, or special meeting of stockholders called for such
purpose, by the affirmative vote of at least two-thirds of the shares present in
person or represented by proxy at such meeting and entitled to vote on such
amendment or repeal, voting together as a single class; provided, however, that
if the Board of Directors recommends that stockholders approve such amendment or
repeal at such meeting of stockholders, such amendment or repeal shall only
require the affirmative vote of the majority of the shares present in person or
represented by proxy at such meeting and entitled to vote on such amendment or
repeal, voting together as a single class.
18
<PAGE>
Adopted ________ ___, 199_ and effective as of ________ ___, 199_.
19
<PAGE>
Exhibit 4.1
================================================================================
[LOGO]
NUMBER SHARES
VNI
COMMON STOCK COMMON STOCK
Voyager.net, Inc.
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 92906W 10 1
Incorporated Under the Laws of the State of Delaware
SEE LEGEND ON REVERSE SIDE
This Certifies that
is the owner of
FULLY-PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK,
PAR VALUE OF $.0001 EACH, OF
Voyager.net, Inc.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney, upon surrender of this certificate properly
endorsed. This certificate and the shares represented hereby are issued and
shall be held subject to the laws of the State of Delaware and the Certificate
of Incorporation and the By-Laws of the Corporation, as the same may be from
time to time amended, to all of which the holder by acceptance hereof assents.
This certificate is not valid unless countersigned and registered by the
Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of the duly authorized officers of the Corporation.
Dated:
[VOYAGER.NET, INC. 1998 DELAWARE SEAL]
/s/ [Signature of Secretary] /s/ [Signature of President and Chief
Executive Officer]
COUNTERSIGNED AND REGISTERED:
State Street bank & Trust Company (Boston)
TRANSFER AGENT AND REGISTRAR
By [Signature of Authorized Officer]
AUTHORIZED SIGNER
================================================================================
<PAGE>
Voyager.net, Inc.
The Corporation has more than one class of stock authorized to be issued.
The Corporation will furnish without charge to each stockholder upon request a
copy of the full text of the powers, designations, preferences and relative,
participating, optional or other rights of the shares of each class of stock
(and any series thereof) authorized to be issued by the Corporation and the
qualifications, limitations or restrictions of such preferences and/or rights,
all as set forth in the Certificate of Incorporation and amendments thereto
filed with the Secretary of State of the State of Delaware.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _____________ Custodian ________________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act______________________
UNIF TRF MIN ACT -- _____________ Custodian (until age____)
(Cust)
____________ under Uniform Transfers
(Minor)
to Minors Act ___________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received,________________________________________ hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
------------------------
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
__________________________________________________________________________Shares
________________________________________________________________________________
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
________________________________________________________________________Attorney
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated___________
___________________________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
By
_______________________________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
<PAGE>
EXHIBIT 10.8
VOYAGER INFORMATION NETWORKS, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made this 20th day of
February, 1998 by and between Voyager Information Networks, Inc., a Michigan
corporation (the "Company"), and Christopher Torto (the "Employee"). The purpose
of this Agreement is to define the terms on which the Company employs the
Employee for rendering of services. It supersedes any and all prior agreements,
written and oral, which may have been made between the Company and the Employee.
1. EMPLOYMENT. The Company hereby employs the Employee and the Employee
hereby accepts such employment on the terms and conditions herein contained.
Compensation payments to the Employee will be made on a bi-weekly basis in the
amount set forth below.
2. TERM. The term of this employment shall commence on February 20, 1998
and shall continue until terminated by either party, and employment of the
Employee shall be deemed for all purposes to be at the will of the Company.
Voluntary resignation by the Employee shall require ten (10) prior working days'
written notice to the Company.
3. DUTIES. The Employee is employed as the Chief Executive Officer of
the Company to carry out duties as assigned by the Company, including, without
limitation, the responsibilities contained in Attachment I. Further: (a) the
------------
Company shall determine the assignments of the Employee, and the Employee agrees
to carry out such assignments in a timely manner; (b) all services rendered by
the Employee shall be subject to review by the Company; (c) duties of the
Employee shall typically be performed during the course of a normal work week
which shall be designated by the Company based on the individual requirements of
the Employee's position. Although, subject to mutual agreement between the
Company and the Employee, said duties or some part thereof may be performed at
times other than during the normal work week. In addition, the Employee agrees
to being subject to call at any time, and the Company agrees to make reasonable
effort to give notice in advance when there is need for the Employee's services
outside of the established normal work week.
4. CONFLICT OF INTEREST. The Employee shall not engage in any work
except as an employee of the Company without the prior written consent of the
Company. The Employee agrees to full disclosure of any outside work assignments
the Employee may have or contemplate undertaking. The Company shall make a
determination of possible conflict of interest, and the Employee agrees that a
condition of employment is that no outside work obligation be pursued which, in
the judgment of the Company in its sole discretion, constitutes a conflict of
interest with the Company and with its obligations to customers.
<PAGE>
5. COOPERATION COVENANT. During the term of this Agreement, and after
the date of termination of this Agreement, Employee agrees to fully and
voluntarily cooperate and assist in defending any actions against Company in
which employee is named as defendant or witness or about which he has knowledge.
The Company agrees to compensate Employee a pro-rated sum, based on the annual
Salary he was receiving at the date of termination, for any time that he spends
after the date of termination in assisting the Company to defend against actions
against the Company. The provisions of this Section shall survive the expiration
or termination of this Agreement.
6. CONFIDENTIALITY. The Employee understands that the Company's business
and/or affairs, and all customer matters are to be maintained in the strictest
confidence. The Employee hereby acknowledges and agrees to be bound by the
provisions of the Inventions, Confidentiality and Non-Competition Agreement set
forth in Attachment II hereto. Any breach of the foregoing shall be cause for
-------------
immediate termination of Employee's employment and this Agreement, without
severance, as detailed in Section 17. Furthermore, the Company considers the
terms of the Employee's employment regarding pay, raises, bonuses and/or
benefits to be confidential and expects that the Employee does as well.
7. POLICIES AND RULES. The Employee will abide by all policies and rules
as may be promulgated by the Company and received by Employee. Such policies and
rules shall include, but not be limited to, those contained in the Company's
Employee Personnel Manual. The Employee will be provided a copy of said Manual
and revisions as it is published and he understands that he has the obligation
of reviewing it. All working conditions shall be adhered to as stated by the
Company's Employee Personnel Manual.
8. WORK FACILITIES. The Company will furnish the Employee with
appropriate office space, assistance and other facilities and services suitable
to the Employee's position and adequate for the performance of the Employee's
duties.
9. COMPENSATION AND BENEFITS. The regular compensation and benefits
payable to the Employee under this Agreement shall be as follows:
(a) Salary. For all services rendered by the Employee under this
------
Agreement, the Company shall pay Employee a bi-weekly salary at the rate of
$4,613.38 bi-weekly ("Base Salary"). Employee's salary shall be payable bi-
weekly in accordance with the Company's usual practice for its staff, and shall
be subject further to withholding for applicable federal, state and local taxes.
(b) Business Expense. The Company shall reimburse Employee for
----------------
reasonable, documented out-of-pocket expenses incurred in connection with
Employee's fulfillment of his services under Section 3 of this Agreement.
(c) Bonus. The Employee shall receive an annual bonus equal to twenty
-----
percent (20%) of Base Salary.
2
<PAGE>
(d) Options. The Company shall grant the Employee options to purchase
-------
shares of common stock, no par value per share, of the Company, pursuant to the
terms of the Option Agreement attached hereto as Attachment III.
--------------
(e) Vacation. Employee shall be entitled to fifteen (15) business
--------
days of paid vacation annually in addition to the personal days and holidays
permitted under the Company's Employee Personnel Manual until Employee's tenth
anniversary date of employment with the Company; after such tenth anniversary
the Employee shall be entitled to paid vacations as promulgated in the Company's
Employee Personnel Manual.
(f) Savings and Retirement Plans. During the term of the Agreement,
----------------------------
the Employee shall be entitled to fully participate in all savings and
retirement plans, practices, policies and programs applicable to other employees
of the Company, subject to the eligibility criteria cited in the Company's
Employee Personnel Manual.
10. PROFESSIONAL DEVELOPMENT. Where the Company deems professional
development appropriate to maintain the Employee's performance of duties, the
Company may authorize attendance at conferences, seminars, or other educational
activities and may authorize payment of all or part of fees and expenses related
thereto.
11. SICK LEAVE. The Employee shall be entitled to sick leave with full
payment of salary according to the Company's sick leave benefit plan as cited in
the Company's Employee Personnel Manual.
12. LEAVES OF ABSENCE. The Employee shall be entitled to other leaves of
absence, paid and/or unpaid, as cited in the Company's Employee Personnel
Manual.
13. INSURANCE. The Employee shall be entitled to health, dental and life
insurance benefits pursuant to the terms of the Company's health insurance plan,
subject to eligibility criteria as cited in the Company's Employee Personnel
Manual.
14. RELATIONSHIP BETWEEN THE PARTIES. The relationship between the
Company and the Employee is that of an employer and an employee. The Company and
the Employee each agree as follows: (a) that all records and files of clients
served by the Company and maintained by the Employee in performing his duties
and all other record files, resource materials and equipment provided by the
Company to support the Employee's activities hereunder shall belong to and
remain the property of the Company and (b) all accounts receivable derived from
services rendered pursuant to this Agreement are the sole and exclusive property
of the Company.
15. RETURN OF MATERIALS. Employee acknowledges that all files, records,
lists, books, document, and other materials, whether owned by the Company at the
time of employment or developed during the course of employment, used in
connection with the conduct of its business, shall at all times remain the
property of the Company. Upon the
3
<PAGE>
termination of the employment relationship with the Company, Employee shall
return all records, documents, software, and other written, printed,
photographic or physical materials of any type that belong to or pertain to the
Company then in Employee's possession or control, and Employee shall not make or
retain any copies of extracts, including hand-written summations, of any such
documents.
16. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waive of any
subsequent breach of such party.
17. SEVERANCE. Except as otherwise specifically provided in this Section
17 or otherwise required by law, all compensation and benefits to be provided to
the Employee under this Agreement shall terminate on the date of the termination
of the Employee's employment hereunder. Notwithstanding the foregoing, (a) in
the event the Employee voluntarily terminates his employment hereunder for any
reason, the Employee shall be entitled to the continued payment of the
Employee's salary for a period of two (2) weeks from the date of termination and
(b) in the event the Employee's employment hereunder is terminated by the
Company without cause, the Employee shall be entitled to the continued payment
of the Employee's salary for a period of one (1) year from the date of
termination. Any payments of salary pursuant to this Section 15 shall be at the
Employee's salary rate in effect at the time of termination and shall be made on
the same periodic dates as salary payments would have been made to the Employee
had the Employee not been terminated. The Employee and the Company acknowledge
and agree that in the event the Employee's employment hereunder is terminated by
the Company for cause, the Company shall have no further liability with respect
to the Employee and all compensation and benefits to the Employee shall
immediately terminate. For purposes of this Agreement, the term "cause" shall
mean only: (a) theft or embezzlement of the Company's property, (b) commission
of a crime or act involving moral turpitude, (c) fraud, intentional
misrepresentation to the Company, breach of Section 6, or material breach of any
of the Sections of this Agreement, (d) death or disability, and (e) repeated
failure by the Employee to dutifully and faithfully perform his duties as set
forth herein; provided, the Company has notified the Employee of its belief that
--------
the Employee has not performed his duties hereunder and the Employee has failed
to take such action as would reasonably be required to cure such non-performance
within ten (10) days.
18. DEATH. This Agreement shall be terminated upon the death of Employee,
in which event Employee's devisees or heirs shall be eligible to receive
Employee's pro-rated Base Salary in effect at the time of death, earned through
his last day of active service to the extent due but not previously paid, and
benefits to be paid or provided to Employee under this Agreement through his
last day of active service.
19. DISABILITY. Employee's employment pursuant to this Agreement may be
terminated by written notice to Employee at the option of the Company in the
event that: (i) Employee becomes unable to perform the essential functions of
his job, with or without accommodation, by reason of physical or mental illness
or accident for any six (6) consecutive
4
<PAGE>
month period or for more than one hundred eighty (180) days in the aggregate
during any twelve month period, or (ii) the Company receives written opinions
from both a physician for the Company and a physician for Employee that Employee
will be so disabled. In the event that this Agreement is terminated by the
Company pursuant to his Section, Employee shall be eligible for all Base Salary
to be paid or provided to Employees under this Agreement until the date of
termination, offset by any short or long term disability payments he receives
through the Company. Employee shall also receive any other benefits to which he
may be entitled as provided in this Agreement and the Employee Personnel Manual
upon termination of the Agreement.
20. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement will be sufficient if in writing and delivered in
person, sent by registered or certified mail, postage prepaid, to the Employee's
last address on file in writing with the Company in the case of the Employee or
to the Company at its main offices, to the attention of its Chief Executive
Officer in the case of the Company.
21. TAXATION OF PAYMENTS AND BENEFITS. The Company shall undertake to
make deductions, withholdings and tax reports with respect to payments and
benefits under this Agreement to the extent that it reasonably and in good faith
believes that it is required to make such deductions, withholdings and tax
reports. Payments under this Agreement shall be in amounts net of any such
deductions or withholdings. Except as specifically provided herein, the Company
shall not be required to make any payments to compensate the Employee for any
adverse tax effect associated with any payments or benefits or for any deduction
or withholding from any payment or benefit.
22. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original and all of which shall be taken to constitute one and the same
document.
[END OF TEXT]
5
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date first written above.
EMPLOYEE: COMPANY:
VOYAGER INFORMATION NETWORKS, INC.
By: /s/ Christopher Torto By: /s/ Glenn Friedly
---------------------- ------------------
Christopher Torto Name: Glenn Friedly
Title: Chairman of the Board
Address: Address:
4415 Heritage Drive, Apt. C3 4660 S. Hagadorn Road, Suite 320
Okemos, MI 48864 East Lansing, MI 48823
6
<PAGE>
ATTACHMENT I
Job Description
Employee shall serve as the Chief Executive Officer of the Company and
shall generally have supervisory responsibilities over all aspects of the
business of the Company, as well as such other responsibilities as may be
specified from time to time by the Board of Directors of the Company consistent
with Employee's position and general area of skills. The Employee shall
specifically be responsible for the strategic oversight of the Company including
with respect to mergers and acquisitions of other Internet service providers
("ISPs"). The Employee shall also manage and direct the Company in its banking
and financial matters, its external service relationships (including with
investment banking institutions, debt and equity sources and law firms) and the
overall performance, operational and financial, of the Company. The Employee
shall be responsible for developing short-term, mid-term and long-term goals and
objectives for the Company, mapping-out a strategy for achieving these goals,
and directing the Company so that it has the financial and human resources to
execute the strategy. The Employee may be responsible for such other matters as
mutually determined by the Board of Directors of the Company and the Employee
from time to time.
7
<PAGE>
ADDENDUM
THIS ADDENDUM to that certain employment agreement is made effective as of March
1, 1999 (the "Effective Date") by and between Voyager Information Networks, Inc.
(the "Company") and Christopher P. Torto (the "Employee").
Reference is hereby made to that certain Employment Agreement dated as of
February 20, 1998 by and between the Company and the Employee (the "Employment
Agreement").
The parties hereto desire to amend the Employment Agreement effective as of the
Effective Date as set forth in this Addendum, as follows:
1. The term of the Employment Agreement shall be three (3) years from the
Effective Date, unless earlier terminated by the parties as provided in the
Employment Agreement (the "Term").
2. The Employee's Base Salary shall be $225,000 per year.
3. The Employee shall be eligible for an annual Bonus of up to 40% of Base
Salary.
4. The term of the Employee's non-competition provision shall be one (1) year
from the end of the Term.
5. The Employee shall be entitled to severance equal to one (1) year's Base
Salary if the Employee is terminated by the Company without Cause.
6. The Company, or its parent, Voyager Holdings, Inc., may, in the discretion
of their respective board of directors, loan or make funds available to the
Employee from time to time, on terms and conditions satisfactory to the
board of directors.
7. All other terms and conditions of the Employment Agreement shall remain in
full force and effect and without modification other than in a separate
writing between the parties.
8. This Addendum is intended to modify and become part of the Employment
Agreement as of the Effective Date.
EXECUTED AS OF THIS 30th DAY OF APRIL, 1999.
VOYAGER INFORMATION NETWORKS, INC.
By: /s/ Glenn Friedly
-------------------------------------
Name: Glenn Friedly
Title: Chairman of the Board
/s/ Christopher P. Torto
----------------------------------------
Christopher P. Torto
<PAGE>
EXHIBIT 10.10
EMPLOYMENT AGREEMENT
--------------------
This AGREEMENT (the "Agreement") is made as of October 2, 1998, effective
September 30, 1998 (the "Effective Date"), by and between Voyager Information
Networks, Inc., a Michigan corporation (the "Employer"), and Christopher
Michaels (the "Employee").
WHEREAS, pursuant to the terms of that certain Asset Purchase Agreement
dated as of September 26, 1998 (the "Purchase Agreement") by and between the
Employer and NetLink Systems, L.L.C. ("NetLink), the Employer is purchasing all
of the assets used or useful in connection with NetLink's Internet connectivity
service business;
WHEREAS, the Employee is an executive officer and member of NetLink and is
knowledgeable in the Internet connectivity service industry; and
WHEREAS, the parties hereto desire to assure that the Employee's knowledge
and experience will continue to be available to the Employer after consummation
of the transactions contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. Employment. The Employer agrees to employ the Employee and the
----------
Employee agrees to be employed by the Employer on the terms and conditions set
forth in this Agreement.
2. Capacity. The Employee shall initially serve the Employer as the
--------
Director of Technical Operations, subject to the approval of the Chief Executive
Officer. The Employee shall also serve the Employer in such other or additional
offices as the Employee may be requested to serve from time to time by the Chief
Executive Officer of the Employer; provided, however, that the Employee's
-------- -------
services and duties with respect to such other or additional offices shall not
result in a material diminution of employee's role and responsibilities
contemplated hereby. In such capacity or capacities, the Employee shall perform
such services and duties in connection with the business, affairs and operations
of the Employer as may be assigned or delegated to the Employee from time to
time by the Chief Executive Officer.
3. Term. Subject to the provisions of Section 5, the term of employment
----
pursuant to this Agreement (the "Term") shall be two (2) years from the
Effective Date and shall be renewed automatically for periods of one (1) year
commencing at the second anniversary of the Effective Date and on each
subsequent anniversary thereafter, unless either the Employee or the Employer
gives written notice to the other not less than sixty (60) days prior to the
date of any such anniversary of such party's election not to extend the Term.
<PAGE>
4. Compensation and Benefits. The regular compensation and benefits
-------------------------
payable to the Employee under this Agreement shall be as follows:
(a) Salary. For all services rendered by the Employee under this
------
Agreement, the Employer shall pay the Employee a salary (the "Salary") at the
annual rate of Ninety Thousand Dollars ($90,000), subject to increase from time
to time in the discretion of the Board of Directors of the Employer (the "Board
of Directors"). The Salary shall be payable in periodic installments in
accordance with the Employer's usual practice for its senior Employees, but not
less frequently than monthly.
(b) Bonus. The Employer shall pay to the Employee an annual bonus
-----
(the "Bonus") which is equal to twenty percent (20%) of the Salary then in
effect, payable in two (2) semi-annual installments on December 31 and June 30
of each calendar year. For any partial year of employment under this Agreement,
including, without limitation, the three-month period ended December 31, 1998,
the Employee shall be paid the pro-rata portion of the Bonus. The Employee shall
not be eligible for other bonus payments under the Employer's bonus pool.
(c) Regular Benefits. The Employee shall also be entitled to
----------------
participate in any employee benefit plans, stock option plans, medical insurance
plans, life insurance plans, disability income plans, retirement plans, vacation
plans, expense reimbursement plans and other benefit plans which the Employer
may from time to time have in effect for all or most of its senior Employees.
Such participation shall be subject to the terms of the applicable plan
documents, generally applicable policies of the Employer, applicable law and the
discretion of the Board of Directors or any administrative or other committee
provided for in or contemplated by any such plan. Nothing contained in this
Agreement shall be construed to create any obligation on the part of the
Employer to establish any such plan or to maintain the effectiveness of any such
plan which may be in effect from time to time.
(d) Taxation of Payments and Benefits. The Employer shall undertake
---------------------------------
to make deductions, withholdings and tax reports with respect to payments and
benefits under this Agreement to the extent that it reasonably and in good faith
believes that it is required to make such deductions, withholdings and tax
reports. Payments under this Agreement shall be in amounts net of any such
deductions or withholdings. Nothing in this Agreement shall be construed to
require the Employer to make any payments to compensate the Employee for any
adverse tax effect associated with any payments or benefits or for any deduction
or withholding from any payment or benefit.
(e) Exclusivity of Salary and Benefits. The Employee shall not be
----------------------------------
entitled to any payments or benefits other than those provided under this
Agreement.
5. Termination and Termination Benefits. Notwithstanding the provisions
------------------------------------
of Section 3, the Employee's employment under this Agreement shall terminate
under the following circumstances set forth in this Section 5.
2
<PAGE>
(a) Termination by the Employer for Cause. The Employee's employment
-------------------------------------
under this Agreement may be terminated for cause without further liability on
the part of the Employer effective immediately upon written notice to the
Employee by the Employer. Only the following shall constitute "cause" for such
termination:
(i) the probable cause determination by a court of law
regarding the commission by the Employee of a felony or the conviction of the
Employee for any misdemeanor involving moral turpitude, deceit, dishonesty or
fraud;
(ii) failure to perform (other than by reason of disability or
illness) to the reasonable satisfaction of the Chief Executive Officer a
substantial portion of the Employee's duties and responsibilities assigned or
delegated under this Agreement, which failure continues, in the reasonable
judgment of the Chief Executive Officer, for thirty (30) days after written
notice given to the Employee by the Chief Executive Officer;
(iii) gross negligence, willful misconduct or insubordination of
the Employee with respect to the Employer or any affiliate of the Employer and
the Employees duties with respect thereto, which continues, in the reasonable
judgment of the Chief Executive Officer, for thirty (30) days after written
notice given to the Employee by the Chief Executive Officer; or
(iv) material breach by the Employee of any of the Employee's
obligations under this Agreement, which breach continues, in the reasonable
judgment of the Chief Executive Officer, for thirty (30) days after written
notice given to the Employee by the Chief Executive Officer.
(b) Termination by the Employee. The Employee's employment under this
---------------------------
Agreement may be terminated by the Employee by written notice to the Chief
Executive Officer at least sixty (60) days prior to such termination.
(c) Termination by the Employer Without Cause. Subject to the payment
-----------------------------------------
of Termination Benefits pursuant to Section 5(d), the Employee's employment
under this Agreement may be terminated by the Employer without cause upon
written notice to the Employee from the Employer.
(d) Certain Termination Benefits. Unless otherwise specifically
----------------------------
provided in this Agreement or otherwise required by law, all compensation and
benefits payable to the Employee under this Agreement shall terminate on the
date of termination of the Employee's employment under this Agreement.
Notwithstanding the foregoing, in the event of termination of the Employee's
employment with the Employer pursuant to Section 5(c) above, the Employer shall
provide to the Employee the following termination benefits ("Termination
Benefits"):
3
<PAGE>
(i) continuation of the Employee's Salary at the rate then in
effect pursuant to Section 4(a); and
(ii) continuation of group health plan benefits to the extent
authorized by and consistent with 29 U.S.C. (S) 1161 et seq. (commonly known as
-- ---
"COBRA"), with the cost of the regular premium for such benefits shared in the
same relative proportion by the Employer and the Employee as in effect on the
date of termination.
The Termination Benefits set forth in (i) and (ii) above shall continue
effective until the earlier to occur of (x) the expiration of the Term and (y)
the first anniversary of the date on which the Employer begins providing
Termination Benefits to the Employee; provided, however, that in the event the
-------- -------
Employee breaches the terms of the Non-competition Agreement between the
Employee and the Employer (the "Non-competition Agreement"), then all of such
Termination Benefits shall immediately cease. Notwithstanding the foregoing,
nothing in this Section 5(d) shall be construed to affect the Employee's right
to receive COBRA continuation entirely at the Employee's own cost to the extent
that the Employee may continue to be entitled to COBRA continuation after the
Employee's right to cost sharing under Section 5(d)(ii) ceases. The Employee
shall be obligated to give prompt notice of the date of commencement of any
employment or self-employment during the Termination Benefits Period and shall
respond promptly to any reasonable inquiries concerning any employment or self-
employment in which the Employee engages during the Termination Benefits Period.
(e) Death; Disability. Upon the death of the Employee or the
-----------------
permanent disability (as defined below) of the Employee continuing for a period
in excess of one hundred eighty (180) consecutive days, all obligations of the
Employer under this Agreement shall immediately terminate other than any
obligation of the Employer with respect to earned but unpaid Salary and benefits
contemplated hereby to the extent accrued or vested through the date of
termination. As used herein, the terms "permanent disability" or "permanently
disabled" shall mean the inability of the Employee, by reason of injury, illness
or other similar cause, to perform a major part of his duties and
responsibilities in connection with the conduct of the business and affairs of
the Employer, as determined reasonably and in good faith by the Employer. The
Employer shall use reasonable commercial efforts to obtain and maintain in
effect disability insurance with respect to the Employee providing for
disability payments equivalent to Salary payments that would have been made from
termination due to disability through the date on which Salary obligations
otherwise would have terminated provided such insurance is obtainable on
commercially reasonable terms. Nothing in this Section 5(e) shall be construed
to waive the Employee's rights, if any, under existing law including, without
limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. (S) 2601 et seq.
-- ---
and the Americans with Disabilities Act, 42 U.S.C. (S) 12101 et seq.
-- ---
6. Confidential Information and Cooperation.
----------------------------------------
(a) Confidential Information. As used in this Agreement,
------------------------
"Confidential Information" means information belonging to the Employer which is
of value to the Employer
4
<PAGE>
in the course of conducting its business and the disclosure of which could
result in a competitive or other disadvantage to the Employer. Confidential
Information includes, without limitation, financial information, reports, and
forecasts; inventions, improvements and other intellectual property; trade
secrets; know-how; designs, processes or formulae; software; market or sales
information or plans; customer lists; and business plans, prospects and
opportunities (such as possible acquisitions or dispositions of businesses or
facilities) which have been discussed or considered by the management of the
Employer. Confidential Information includes information developed by the
Employee in the course of the Employee's employment by the Employer, as well as
other information to which the Employee may have access in connection with the
Employee's employment. Confidential Information also includes the confidential
information of others with which the Employer has a business relationship.
Notwithstanding the foregoing, Confidential Information does not include
information which (i) is or becomes generally available to the public other than
as a result of disclosure by the Employee, or (ii) is acquired or developed by
or on behalf of the Employee without the use, directly or indirectly, of any
information that would otherwise constitute Confidential Information.
(b) Confidentiality. The Employee understands and agrees that the
---------------
Employee's employment creates a relationship of confidence and trust between the
Employee and the Employer with respect to all Confidential Information. At all
times, both during the Employee's employment with the Employer and after his
termination, the Employee will keep in confidence and trust all such
Confidential Information, and will not use or disclose any such Confidential
Information without the written consent of the Employer, except as may be
necessary in the ordinary course of performing the Employee's duties to the
Employer.
(c) Documents, Records, etc. All documents, records, data, apparatus,
------------------------
equipment and other physical property, whether or not pertaining to Confidential
Information, which are furnished to the Employee by the Employer or are produced
by the Employee in connection with the Employee's employment will be and remain
the sole property of the Employer. The Employee will return to the Employer all
such materials and property as and when requested by the Employer. In any event,
the Employee will return all such materials and property immediately upon
termination of the Employee's employment for any reason. The Employee will not
retain with the Employee any such material or property or any copies thereof
after such termination.
(d) Third-Party Agreements and Rights. The Employee hereby confirms
---------------------------------
that the Employee is not bound by the terms of any agreement with any previous
employer or other party which restricts in any way the Employee's use or
disclosure of information or the Employee's engagement in any business,
including, without limitation, any agreement with NetLink, which agreement shall
be terminated prior to the effectiveness hereof. The Employee represents to the
Employer that the Employee's execution of this Agreement, the Employee's
employment with the Employer and the performance of the Employee's proposed
duties for the Employer will not violate any obligations the Employee may have
to any such previous employer or other party, including, without limitation,
NetLink. In the Employee's work for
5
<PAGE>
the Employer, the Employee will not disclose or make use of any information in
violation of any agreements with or rights of any such previous employer or
other party, and the Employee will not bring to the premises of the Employer any
copies or other tangible embodiments of non-public information belonging to or
obtained from any such previous employment or other party.
(e) Litigation and Regulatory Cooperation. During and after the
-------------------------------------
Employee's employment, the Employee shall cooperate fully with the Employer in
the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Employer which relate
to events or occurrences that transpired while the Employee was employed by the
Employer. The Employee's full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Employer at mutually convenient times. During and after the Employee's
employment, the Employee also shall cooperate fully with the Employer in
connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while the Employee was employed by the Employer. The
Employer shall reimburse the Employee for any reasonable out-of-pocket expenses
incurred in connection with the Employee's performance of obligations pursuant
to this Section 6(e).
(f) Injunction. The Employee agrees that it would be difficult to
----------
measure any damages caused to the Employer which might result from any breach by
the Employee of the promises set forth in this Section 6, and that in any event
money damages would be an inadequate remedy for any such breach. Accordingly,
subject to Section 7 of this Agreement, the Employee agrees that if the Employee
breaches, or proposes to breach, any portion of this Agreement, the Employer
shall be entitled, in addition to all other remedies that it may have, to an
injunction or other appropriate equitable relief to restrain any such breach
without showing or proving any actual damage to the Employer.
(g) Non-competition Agreement. The Employee acknowledges that the
-------------------------
Non-competition Agreement is an integral part of his employment arrangements
with the Employer.
7. Dispute Resolution. Except as provided below, any dispute arising out
------------------
of or relating to this Escrow Agreement or the breach, termination or validity
hereof shall be finally settled by arbitration conducted expeditiously in
accordance with the CPR Institute For Dispute Resolution Rules for
Nonadministered Arbitration of Business Disputes (the "CPR Rules"). The CPR
Institute For Dispute Resolution shall appoint a neutral advisor from its
National CPR Panel. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. (S)(S)1-16, and judgment upon the award rendered by
the arbitrators may be entered by any court having jurisdiction thereof. The
place of arbitration shall be Detroit, Michigan.
6
<PAGE>
Such proceedings shall be administered by the neutral advisor in accordance
with the CPR Rules as he/she deems appropriate, however, such proceedings shall
be guided by the following agreed upon procedures:
(a) mandatory exchange of all relevant documents, to be accomplished
within forty-five (45) days of the initiation of the procedure;
(b) no other discovery;
(c) hearings before the neutral advisor which shall consist of a
summary presentation by each side of not more than three (3) hours; such
hearings to take place on one or two days at a maximum; and
(d) decision to be rendered not more than ten (10) days following
such hearings.
Notwithstanding anything to the contrary contained herein, the provisions
of this Section 7 shall not apply with regard to any equitable remedies to which
any party may be entitled hereunder.
Each of the parties hereto (a) hereby irrevocably submits to the
jurisdiction of any United States District Court of competent jurisdiction in
the State of Michigan for the purpose of enforcing the award or decision in any
such proceeding, (b) hereby waives, and agrees not to assert, by way of motion,
as a defense, or otherwise, in any such suit, action or proceeding, any claim
that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the
suit, action or proceeding is brought in an inconvenient forum, that the venue
of the suit, action or proceeding is improper or that this Employment Agreement
or the subject matter hereof may not be enforced in or by such court, and hereby
waives and agrees not to seek any review by any court of any other jurisdiction
which may be called upon to grant an enforcement of the judgment of any such
court. Each of the parties hereto hereby consents to service of process by
registered mail at the address to which notices are to be given. Each of the
parties hereto agrees that its or his submission to jurisdiction and its or his
consent to service of process by mail is made for the express benefit of the
other parties hereto. Final judgment against any party hereto in any such
action, suit or proceeding may be enforced in other jurisdictions by suit,
action or proceeding on the judgment, or in any other manner provided by or
pursuant to the laws of such other jurisdiction; provided, however, that any
-------- -------
party hereto may at its or his option bring suit, or institute other judicial
proceedings, in any state or federal court of the United States or of any
country or place where the other parties or their assets, may be found.
8. Integration. This Agreement and, to the extent related hereto, the
-----------
Employee's Non-competition Agreement, constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter.
7
<PAGE>
9. Assignment; Successors and Assigns, etc. Neither the Employer nor the
---------------------------------------
Employee may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other
party; provided that the Employer may assign its rights under this Agreement
--------
without the consent of the Employee (a) in the event that the Employer shall
effect a reorganization, consolidate with or merge into any other corporation,
partnership, organization or other entity, or transfer all or substantially all
of its properties or assets or stock to any other corporation, partnership,
organization or other entity or (b) in connection with the granting of a
security interest in this Agreement to its senior lenders. This Agreement shall
inure to the benefit of and be binding upon the Employer and the Employee, their
respective successors, executors, administrators, heirs and permitted assigns.
10. Enforceability. If any portion or provision of this Agreement
--------------
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
11. Waiver. No waiver of any provision hereof shall be effective unless
------
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
12. Notices. Any notices, requests, demands and other communications
-------
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Employee at the last address the Employee has filed in writing with the Employer
or, in the case of the Employer, at its main offices, attention of the Chief
Executive Officer, and shall be effective on the date of delivery in person or
by courier or three (3) days after the date mailed.
13. Amendment. This Agreement may be amended or modified only by a
---------
written instrument signed by the Employee and by a duly authorized
representative of the Employer.
14. Governing Law. This is a Michigan contract and shall be construed
-------------
under and be governed in all respects by the laws of the State of Michigan,
without giving effect to the conflict of laws principles there.
15. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be taken to be
an original; but such counterparts shall together constitute one and the same
document.
8
<PAGE>
IN WITNESS WHEREOF, this Employment Agreement has been executed by the
Employer, by its duly authorized officer, and by the Employee, as of the
Effective Date.
EMPLOYER:
VOYAGER INFORMATION NETWORKS, INC.
By: /s/ Christopher Torto
---------------------
Name: Christopher Torto
Title: Chief Executive Officer
EMPLOYEE:
/s/ Christopher Michaels
------------------------
Christopher Michaels
9
<PAGE>
ADDENDUM
THIS ADDENDUM to that certain employment agreement is made effective as of March
1, 1999 (the "Effective Date") by and between Voyager Information Networks, Inc.
(the "Company") and Christopher Michaels (the "Employee").
Reference is hereby made to that certain Employment Agreement dated as of
October 2, 1998 by and between the Company and the Employee (the "Employment
Agreement").
The parties hereto desire to amend the Employment Agreement effective as of the
Effective Date as set forth in this Addendum, as follows:
1. The term of the Employment Agreement shall be three (3) years from the
Effective Date, unless earlier terminated by the parties as provided in the
Employment Agreement (the "Term").
2. The Employee's Base Salary shall be $190,000 per year.
3. The Employee shall be eligible for an annual Bonus of up to 40% of Base
Salary.
4. The term of the Employee's non-competition provision shall be one (1) year
from the end of the Term.
5. All other terms and conditions of the Employment Agreement shall remain in
full force and effect and without modification other than in a separate
writing between the parties.
6. This Addendum is intended to modify and become part of the Employment
Agreement as of the Effective Date.
EXECUTED AS OF THIS 30th DAY OF APRIL, 1999.
VOYAGER INFORMATION NETWORKS, INC.
By: /s/ Christopher Torto
-------------------------------------
Name: Christopher Torto
Title: Chief Executive Officer
/s/ Christopher Michaels
----------------------------------------
Christopher Michaels
<PAGE>
Exhibit 10.20
FORM OF
VOYAGER.NET, INC.
AMENDED AND RESTATED
1998 STOCK OPTION AND INCENTIVE PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
----------------------------------------
The name of the plan is the Amended and Restated Voyager.net, Inc. 1998
Stock Option and Incentive Plan (the "Plan"). The purpose of the Plan is to
encourage and enable the officers, employees, Independent Directors and other
key persons (including consultants) of Voyager.net, Inc. (the "Company") and
its Subsidiaries (as defined below) upon whose judgment, initiative and efforts
the Company largely depends for the successful conduct of its business to
acquire a proprietary interest in the Company. It is anticipated that providing
such persons with a direct stake in the Company's welfare will assure a closer
identification of their interests with those of the Company, thereby stimulating
their efforts on the Company's behalf and strengthening their desire to remain
with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Administrator" is defined in Section 2(a).
"Award" or "Awards," except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Stock Appreciation Rights, Deferred Stock Awards, Restricted Stock
Awards, Unrestricted Stock Awards, Performance Share Awards and Dividend
Equivalent Rights.
"Board" means the Board of Directors of the Company.
"Change of Control" is defined in Section 17.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means the Committee of the Board referred to in Section 2.
"Covered Employee" means an employee who is a "Covered Employee" within the
meaning of Section 162(m) of the Code.
"Deferred Stock Award" means Awards granted pursuant to Section 8.
"Dividend Equivalent Right" means Awards granted pursuant to Section 12.
<PAGE>
"Effective Date" means the date on which the Plan is approved by
stockholders as set forth in Section 19.
"Fair Market Value" of the Stock on any given date means the fair market
value of the Stock determined in good faith by the Administrator; provided,
--------
however, that if the Stock is admitted to quotation on the National Association
- -------
of Securities Dealers Automated Quotation System ("NASDAQ"), NASDAQ National
System or a national securities exchange, the determination shall be made by
reference to market quotations. If there are no market quotations for such
date, the determination shall be made by reference to the last date preceding
such date for which there are market quotations. Fair Market Value with respect
to any Stock Options issued by the Company in connection with the effectiveness
of a registration statement for the initial public offering of common stock
shall mean the price per share of common stock offered to the public in such
public offering.
"Incentive Stock Option" means any Stock Option designated and qualified as
an "incentive stock option" as defined in Section 422 of the Code.
"Independent Director" means a member of the Board who is not also an
employee of the Company or any Subsidiary.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Performance Share Award" means Awards granted pursuant to Section 10.
"Performance Cycle" means one or more periods of time, which may be of
varying and overlapping durations, as the Administrator may select, over which
the attainment of one or more performance criteria will be measured for the
purpose of determining a participant's right to and the payment of a Performance
Share Award, Restricted Stock Award or Deferred Stock Award.
"Restricted Stock Award" means Awards granted pursuant to Section 7.
"Stock" means the Common Stock, par value $.0001 per share, of the Company,
subject to adjustments pursuant to Section 3.
"Stock Appreciation Right" means any Award granted pursuant to Section 6.
"Subsidiary" means any corporation or other entity (other than the Company)
in any unbroken chain of corporations or other entities beginning with the
Company if each of the corporations or entities (other than the last corporation
or entity in the unbroken chain) owns
<PAGE>
stock or other interests possessing 50 percent or more of the economic interest
or the total combined voting power of all classes of stock or other interests in
one of the other corporations or entities in the chain.
"Unrestricted Stock Award" means any Award granted pursuant to Section 9.
SECTION 2. ADMINISTRATION OF PLAN; ADMINISTRATOR AUTHORITY TO SELECT
---------------------------------------------------------
PARTICIPANTS AND DETERMINE AWARDS
---------------------------------
(a) Committee. The Plan shall be administered by either the Board or a
---------
committee of not less than two Independent Directors (in either case, the
"Administrator").
(b) Powers of Administrator. The Administrator shall have the power and
-----------------------
authority to grant Awards consistent with the terms of the Plan, including the
power and authority:
(i) to select the individuals to whom Awards may from time to time
be granted;
(ii) to determine the time or times of grant, and the extent, if any,
of Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation
Rights, Restricted Stock Awards, Deferred Stock Awards, Unrestricted Stock
Awards, Performance Share Awards and Dividend Equivalent Rights, or any
combination of the foregoing, granted to any one or more participants;
(iii) to determine the number of shares of Stock to be covered by any
Award;
(iv) to determine and modify from time to time the terms and
conditions, including restrictions, not inconsistent with the terms of the
Plan, of any Award, which terms and conditions may differ among individual
Awards and participants, and to approve the form of written instruments
evidencing the Awards;
(v) to accelerate at any time the exercisability or vesting of all
or any portion of any Award;
(vi) subject to the provisions of Section 5(a)(ii), to extend at any
time the period in which Stock Options may be exercised;
(vii) to determine at any time whether, to what extent, and under what
circumstances distribution or the receipt of Stock and other amounts
payable with respect to an Award shall be deferred either automatically or
at the election of the participant and whether and to what extent the
Company shall pay or credit amounts constituting interest (at rates
determined by the Administrator) or dividends or deemed dividends on such
deferrals; and
<PAGE>
(viii) at any time to adopt, alter and repeal such rules, guidelines
and practices for administration of the Plan and for its own acts and
proceedings as it shall deem advisable; to interpret the terms and
provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in connection
with the Plan; and to otherwise supervise the administration of the Plan.
All decisions and interpretations of the Administrator shall be binding on
all persons, including the Company and Plan participants.
(c) Delegation of Authority to Grant Awards. The Administrator, in its
---------------------------------------
discretion, may delegate to the Chief Executive Officer of the Company all or
part of the Administrator's authority and duties with respect to the granting of
Awards at Fair Market Value, to individuals who are not subject to the reporting
and other provisions of Section 16 of the Act or "covered employees" within the
meaning of Section 162(m) of the Code. Any such delegation by the Administrator
shall include a limitation as to the amount of Awards that may be granted during
the period of the delegation and shall contain guidelines as to the
determination of the exercise price of any Stock Option or Stock Appreciation
Right, the conversion ratio or price of other Awards and the vesting criteria.
The Administrator may revoke or amend the terms of a delegation at any time but
such action shall not invalidate any prior actions of the Administrator's
delegate or delegates that were consistent with the terms of the Plan.
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
----------------------------------------------------
(a) Stock Issuable. The maximum number of shares of Stock reserved and
--------------
available for issuance under the Plan shall be 7,883,620 shares. For purposes
of this limitation, the shares of Stock underlying any Awards which are
forfeited, cancelled, reacquired by the Company, satisfied without the issuance
of Stock or otherwise terminated (other than by exercise) shall be added back to
the shares of Stock available for issuance under the Plan. Subject to such
overall limitation, shares of Stock may be issued up to such maximum number
pursuant to any type or types of Award. The shares available for issuance under
the Plan may be authorized but unissued shares of Stock or shares of Stock
reacquired by the Company and held in its treasury.
(b) Changes in Stock. If, as a result of any reorganization,
----------------
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar change in the Company's capital stock, the outstanding
shares of Stock are increased or decreased or are exchanged for a different
number or kind of shares or other securities of the Company, or additional
shares or new or different shares or other securities of the Company or other
non-cash assets are distributed with respect to such shares of Stock or other
securities, the Administrator shall make an appropriate or proportionate
adjustment in (i) the maximum number of shares reserved for issuance under the
Plan, (ii) the number of Stock Options or Stock Appreciation Rights that can be
granted to any one individual participant, (iii) the
<PAGE>
number and kind of shares or other securities subject to any then outstanding
Awards under the Plan, and (iv) the price for each share subject to any then
outstanding Stock Options and Stock Appreciation Rights under the Plan, without
changing the aggregate exercise price (i.e., the exercise price multiplied by
the number of Stock Options and Stock Appreciation Rights) as to which such
Stock Options and Stock Appreciation Rights remain exercisable. The adjustment
by the Administrator shall be final, binding and conclusive. No fractional
shares of Stock shall be issued under the Plan resulting from any such
adjustment, but the Administrator in its discretion may make a cash payment in
lieu of fractional shares.
The Administrator may also adjust the number of shares subject to
outstanding Awards and the exercise price and the terms of outstanding Awards to
take into consideration material changes in accounting practices or principles,
extraordinary dividends, acquisitions or dispositions of stock or property or
any other event if it is determined by the Administrator that such adjustment is
appropriate to avoid distortion in the operation of the Plan, provided that no
such adjustment shall be made in the case of an Incentive Stock Option, without
the consent of the participant, if it would constitute a modification, extension
or renewal of the Option within the meaning of Section 424(h) of the Code.
(c) Mergers and Other Transactions. In the case of and subject to the
------------------------------
consummation of (i) the dissolution or liquidation of the Company, (ii) the sale
of all or substantially all of the assets of the Company on a consolidated basis
to an unrelated person or entity, (iii) a merger, reorganization or
consolidation in which the holders of the Company's outstanding voting power
immediately prior to such transaction do not own a majority of the outstanding
voting power of the surviving or resulting entity immediately upon completion of
such transaction, (iv) the sale of all of the Stock of the Company to an
unrelated person or entity or (v) any other transaction in which the owners of
the Company's outstanding voting power prior to such transaction do not own at
least a majority of the outstanding voting power of the relevant entity after
the transaction (in each case, a "Covered Transaction"), all Options and Stock
Appreciation Rights that are not exercisable shall become fully exercisable and
all other Awards with conditions and restrictions relating solely to the passage
of time and continued employment shall become fully vested, except as the
Administrator may otherwise specify with respect to particular Awards in the
Award Agreement. Upon the consummation of the Covered Transaction, the Plan and
all outstanding Awards granted hereunder shall terminate, unless provision is
made in connection with the Covered Transaction for the assumption of Awards
heretofore granted, or the substitution of such Awards with new Awards of the
successor entity or parent thereof, with appropriate adjustment as to the number
and kind of shares and, if appropriate, the per share exercise prices, as
provided in Section 3(b) above. In the event of such termination, each optionee
shall be permitted, within a specified period of time determined by the
Administrator prior to consummation of the Covered Transaction, to exercise all
outstanding Options and Stock Appreciation Rights held by such optionee,
including those that are not then exercisable, subject to the consummation of
the Covered Transaction.
<PAGE>
(d) Substitute Awards. The Administrator may grant Awards under the Plan
-----------------
in substitution for stock and stock based awards previously granted by another
corporation in connection with a merger or consolidation of the employing
corporation with the Company or a Subsidiary or the acquisition by the Company
or a Subsidiary of property or stock of the employing corporation. The
Administrator may direct that the substitute awards be granted on such terms and
conditions as the Administrator considers appropriate in the circumstances. Any
substitute Awards granted under the Plan shall not count against the share
limitation set forth in Section 3(a).
SECTION 4. ELIGIBILITY
-----------
Participants in the Plan will be such full or part-time officers and other
employees, Independent Directors and key persons (including consultants and
prospective employees) of the Company and its Subsidiaries as are selected from
time to time by the Administrator in its sole discretion.
SECTION 5. STOCK OPTIONS
-------------
Any Stock Option granted under the Plan shall be in such form as the
Administrator may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock Options
or Non-Qualified Stock Options. Incentive Stock Options may be granted only to
employees of the Company or any Subsidiary that is a "subsidiary corporation"
within the meaning of Section 424(f) of the Code. To the extent that any Option
does not qualify as an Incentive Stock Option, it shall be deemed a Non-
Qualified Stock Option.
No Incentive Stock Option shall be granted under the Plan after June __,
2009.
(a) Stock Options. The Administrator in its discretion may grant Stock
-------------
Options to eligible participants. Stock Options granted pursuant to this
Section 5(a) shall be subject to the following terms and conditions and shall
contain such additional terms and conditions, not inconsistent with the terms of
the Plan, as the Administrator shall deem desirable. If the Administrator so
determines, Stock Options may be granted in lieu of cash compensation at the
participant's election, subject to such terms and conditions as the
Administrator may establish.
(i) Exercise Price. The exercise price per share for the Stock
--------------
covered by a Stock Option granted pursuant to this Section 5(a) shall be
determined by the Administrator at the time of grant but shall not be less
than 100% of the Fair Market Value on the date of grant in the case of
Incentive Stock Options, or 85% of the Fair Market Value on the date of
grant, in the case of Non-Qualified Stock Options (other than options
granted in lieu of cash compensation). If an employee owns or is deemed to
own (by reason of the attribution rules of Section 424(d) of the Code) more
than 10% of the combined voting power of all classes of stock of the
Company or any parent or
<PAGE>
subsidiary corporation and an Incentive Stock Option is granted to such
employee, the option price of such Incentive Stock Option shall be not less
than 110% of the Fair Market Value on the grant date.
(ii) Option Term. The term of each Stock Option shall be fixed by
the Administrator, but no Stock Option shall be exercisable more than ten
years after the date the option is granted. If an employee owns or is
deemed to own (by reason of the attribution rules of Section 424(d) of the
Code) more than 10 percent of the combined voting power of all classes of
stock of the Company or any parent or subsidiary corporation and an
Incentive Stock Option is granted to such employee, the term of such option
shall be no more than five years from the date of grant.
(iii) Exercisability; Rights of a Stockholder. Stock Options shall
---------------------------------------
become exercisable at such time or times, whether or not in installments,
as shall be determined by the Administrator at or after the grant date;
provided, however, that Stock Options granted in lieu of compensation shall
be exercisable in full as of the grant date. The Administrator may at any
time accelerate the exercisability of all or any portion of any Stock
Option. An optionee shall have the rights of a stockholder only as to
shares acquired upon the exercise of a Stock Option and not as to
unexercised Stock Options.
(iv) Method of Exercise. Stock Options may be exercised in whole or
------------------
in part, by giving written notice of exercise to the Company, specifying
the number of shares to be purchased. Payment of the purchase price may be
made by one or more of the following methods to the extent provided in the
Option Award agreement:
(A) In cash, by certified or bank check or other instrument
acceptable to the Administrator;
(B) Through the delivery (or attestation to the ownership) of
shares of Stock that have been purchased by the optionee on the open
market or that have been beneficially owned by the optionee for at
least six months and are not then subject to restrictions under any
Company plan. Such surrendered shares shall be valued at Fair Market
Value on the exercise date;
(C) By the optionee delivering to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and acceptable
to the Company for the purchase price; provided that in the event the
optionee chooses to pay the purchase price as so provided, the
optionee and the broker shall comply with such procedures and enter
into such agreements of indemnity and other agreements as the
Administrator shall prescribe as a condition of such payment
procedure; or
<PAGE>
(D) By the optionee delivering to the Company a promissory note
if the Board has expressly authorized the loan of funds to the
optionee for the purpose of enabling or assisting the optionee to
effect the exercise of his Stock Option; provided that at least so
much of the exercise price as represents the par value of the Stock
shall be paid other than with a promissory note.
Payment instruments will be received subject to collection. The delivery
of certificates representing the shares of Stock to be purchased pursuant
to the exercise of a Stock Option will be contingent upon receipt from the
optionee (or a purchaser acting in his stead in accordance with the
provisions of the Stock Option) by the Company of the full purchase price
for such shares and the fulfillment of any other requirements contained in
the Stock Option or applicable provisions of laws. In the event an
optionee chooses to pay the purchase price by previously-owned shares of
Stock through the attestation method, the number of shares of Stock
transferred to the optionee upon the exercise of the Stock Option shall be
net of the number of shares attested to.
(v) Annual Limit on Incentive Stock Options. To the extent required
---------------------------------------
for "incentive stock option" treatment under Section 422 of the Code, the
aggregate Fair Market Value (determined as of the time of grant) of the
shares of Stock with respect to which Incentive Stock Options granted under
this Plan and any other plan of the Company or its parent and subsidiary
corporations become exercisable for the first time by an optionee during
any calendar year shall not exceed $100,000. To the extent that any Stock
Option exceeds this limit, it shall constitute a Non-Qualified Stock
Option.
(b) Reload Options. At the discretion of the Administrator, Options
--------------
granted under the Plan may include a "reload" feature pursuant to which an
optionee exercising an option by the delivery of a number of shares of Stock in
accordance with Section 5(a)(iv)(B) hereof would automatically be granted an
additional Option (with an exercise price equal to the Fair Market Value of the
Stock on the date the additional Option is granted and with such other terms as
the Administrator may provide) to purchase that number of shares of Stock equal
to the sum of (i) the number delivered to exercise the original Option and
(ii) the number withheld to satisfy tax liabilities, with an Option term equal
to the remainder of the original Option term unless the Administrator otherwise
determines in the Award agreement for the original Option grant.
(c) Non-transferability of Options. No Stock Option shall be transferable
------------------------------
by the optionee otherwise than by will or by the laws of descent and
distribution and all Stock Options shall be exercisable, during the optionee's
lifetime, only by the optionee, or by the optionee's legal representative or
guardian in the event of the optionee's incapacity. Notwithstanding the
foregoing, the Administrator, in its sole discretion, may provide in the Award
agreement regarding a given Option that the optionee may transfer his Non-
Qualified Stock Options to members of his immediate family, to trusts for the
benefit of such family members, or to partnerships in which such family members
are the only partners, provided that the transferee
<PAGE>
agrees in writing with the Company to be bound by all of the terms and
conditions of this Plan and the applicable Option.
(d) Termination. Except as may otherwise be provided by the Administrator
-----------
either in the Award agreement or, subject to Section 15 below, in writing after
the Award agreement is issued, a participant's rights in all Stock Options shall
automatically terminate upon the participant's termination of employment (or
cessation of business relationship) with the Company and its Subsidiaries for
any reason.
SECTION 6. STOCK APPRECIATION RIGHTS.
-------------------------
(a) Nature of Stock Appreciation Rights. A Stock Appreciation Right is an
-----------------------------------
Award entitling the recipient to receive an amount in cash or shares of Stock or
a combination thereof having a value equal to the excess of the Fair Market
Value of the Stock on the date of exercise over the exercise price Stock
Appreciation Right, which price shall not be less than 100% of the Fair Market
Value of the Stock on the date of grant (or more than the option exercise price
per share, if the Stock Appreciation Right was granted in tandem with a Stock
Option) multiplied by the number of shares of Stock with respect to which the
Stock Appreciation Right shall have been exercised, with the Administrator
having the right to determine the form of payment.
(b) Grant and Exercise of Stock Appreciation Rights. Stock Appreciation
-----------------------------------------------
Rights may be granted by the Administrator in tandem with, or independently of,
any Stock Option granted pursuant to Section 5 of the Plan. In the case of a
Stock Appreciation Right granted in tandem with a Non-Qualified Stock Option,
such Stock Appreciation Right may be granted either at or after the time of the
grant of such Option. In the case of a Stock Appreciation Right granted in
tandem with an Incentive Stock Option, such Stock Appreciation Right may be
granted only at the time of the grant of the Option.
A Stock Appreciation Right or applicable portion thereof granted in tandem
with a Stock Option shall terminate and no longer be exercisable upon the
termination or exercise of the related Option.
(c) Terms and Conditions of Stock Appreciation Rights. Stock Appreciation
-------------------------------------------------
Rights shall be subject to such terms and conditions as shall be determined from
time to time by the Administrator, subject to the following:
(i) Stock Appreciation Rights granted in tandem with Options shall
be exercisable at such time or times and to the extent that the related
Stock Options shall be exercisable.
(ii) Upon exercise of a Stock Appreciation Right, the applicable
portion of any related Option shall be surrendered.
<PAGE>
(iii) All Stock Appreciation Rights shall be exercisable during the
participant's lifetime only by the participant or the participant's legal
representative.
SECTION 7. RESTRICTED STOCK AWARDS
-----------------------
(a) Nature of Restricted Stock Awards. A Restricted Stock Award is an
---------------------------------
Award entitling the recipient to acquire, at par value or such other higher
purchase price determined by the Administrator, shares of Stock subject to such
restrictions and conditions as the Administrator may determine at the time of
grant ("Restricted Stock"). Conditions may be based on continuing employment
(or other business relationship) and/or achievement of pre-established
performance goals and objectives. The grant of a Restricted Stock Award is
contingent on the participant executing the Restricted Stock Award agreement.
The terms and conditions of each such agreement shall be determined by the
Administrator, and such terms and conditions may differ among individual Awards
and participants.
(b) Rights as a Stockholder. Upon execution of a written instrument
-----------------------
setting forth the Restricted Stock Award and payment of any applicable purchase
price, a participant shall have the rights of a stockholder with respect to the
voting of the Restricted Stock, subject to such conditions contained in the
written instrument evidencing the Restricted Stock Award. Unless the
Administrator shall otherwise determine, certificates evidencing the Restricted
Stock shall remain in the possession of the Company until such Restricted Stock
is vested as provided in Section 7(d) below, and the participant shall be
required, as a condition of the grant, to deliver to the Company a stock power
endorsed in blank.
(c) Restrictions. Restricted Stock may not be sold, assigned, transferred,
------------
pledged or otherwise encumbered or disposed of except as specifically provided
herein or in the Restricted Stock Award agreement. If a participant's
employment (or other business relationship) with the Company and its
Subsidiaries terminates for any reason, the Company shall have the right to
repurchase Restricted Stock that has not vested at the time of termination at
its original purchase price, from the participant or the participant's legal
representative.
(d) Vesting of Restricted Stock. The Administrator at the time of grant
---------------------------
shall specify the date or dates and/or the attainment of pre-established
performance goals, objectives and other conditions on which the non-
transferability of the Restricted Stock and the Company's right of repurchase or
forfeiture shall lapse. Subsequent to such date or dates and/or the attainment
of such pre-established performance goals, objectives and other conditions, the
shares on which all restrictions have lapsed shall no longer be Restricted Stock
and shall be deemed "vested." Except as may otherwise be provided by the
Administrator either in the Award agreement or, subject to Section 15 below, in
writing after the Award agreement is issued, a participant's rights in any
shares of Restricted Stock that have not vested shall automatically terminate
upon the participant's termination of employment (or other business
relationship) with the Company and its Subsidiaries and such shares shall be
subject to the Company's right of repurchase as provided in Section 7(c) above.
<PAGE>
(e) Waiver, Deferral and Reinvestment of Dividends. The Restricted Stock
----------------------------------------------
Award agreement may require or permit the immediate payment, waiver, deferral or
investment of dividends paid on the Restricted Stock.
SECTION 8. DEFERRED STOCK AWARDS
---------------------
(a) Nature of Deferred Stock Awards. A Deferred Stock Award is an Award
-------------------------------
of phantom stock units to a participant, subject to restrictions and conditions
as the Administrator may determine at the time of grant. Conditions may be
based on continuing employment (or other business relationship) and/or
achievement of pre-established performance goals and objectives. The grant of a
Deferred Stock Award is contingent on the participant executing the Deferred
Stock Award agreement. The terms and conditions of each such agreement shall be
determined by the Administrator, and such terms and conditions may differ among
individual Awards and participants. At the end of the deferral period, the
Deferred Stock Award, to the extent vested, shall be paid to the participant in
the form of shares of Stock.
(b) Election to Receive Deferred Stock Awards in Lieu of Compensation. The
-----------------------------------------------------------------
Administrator may, in its sole discretion, permit a participant to elect to
receive a portion of the cash compensation or Restricted Stock Award otherwise
due to such participant in the form of a Deferred Stock Award. Any such
election shall be made in writing and shall be delivered to the Company no later
than the date specified by the Administrator and in accordance with rules and
procedures established by the Administrator. The Administrator shall have the
sole right to determine whether and under what circumstances to permit such
elections and to impose such limitations and other terms and conditions thereon
as the Administrator deems appropriate.
(c) Rights as a Stockholder. During the deferral period, a participant
-----------------------
shall have no rights as a stockholder; provided, however, that the participant
may be credited with Dividend Equivalent Rights with respect to the phantom
stock units underlying his Deferred Stock Award, subject to such terms and
conditions as the Administrator may determine.
(d) Restrictions. A Deferred Stock Award may not be sold, assigned,
------------
transferred, pledged or otherwise encumbered or disposed of during the deferral
period.
(e) Termination. Except as may otherwise be provided by the Administrator
-----------
either in the Award agreement or, subject to Section 15 below, in writing after
the Award agreement is issued, a participant's right in all Deferred Stock
Awards that have not vested shall automatically terminate upon the participant's
termination of employment (or cessation of business relationship) with the
Company and its Subsidiaries for any reason.
SECTION 9. UNRESTRICTED STOCK AWARDS
-------------------------
Grant or Sale of Unrestricted Stock. The Administrator may, in its sole
-----------------------------------
discretion, grant (or sell at par value or such higher purchase price determined
by the Administrator) an
<PAGE>
Unrestricted Stock Award to any participant pursuant to which such participant
may receive shares of Stock free of any restrictions ("Unrestricted Stock")
under the Plan. Unrestricted Stock Awards may be granted or sold as described in
the preceding sentence in respect of past services or other valid consideration,
or in lieu of cash compensation due to such participant.
SECTION 10. PERFORMANCE SHARE AWARDS
------------------------
(a) Nature of Performance Share Awards. A Performance Share Award is an
----------------------------------
Award entitling the recipient to acquire shares of Stock upon the attainment of
specified performance goals. The Administrator may make Performance Share
Awards independent of or in connection with the granting of any other Award
under the Plan. The Administrator in its sole discretion shall determine
whether and to whom Performance Share Awards shall be made, the performance
goals, the periods during which performance is to be measured, and all other
limitations and conditions.
(b) Rights as a Stockholder. A participant receiving a Performance Share
-----------------------
Award shall have the rights of a stockholder only as to shares actually received
by the participant under the Plan and not with respect to shares subject to the
Award but not actually received by the participant. A participant shall be
entitled to receive a stock certificate evidencing the acquisition of shares of
Stock under a Performance Share Award only upon satisfaction of all conditions
specified in the Performance Share Award agreement (or in a performance plan
adopted by the Administrator).
(c) Termination. Except as may otherwise be provided by the Administrator
-----------
either in the Award agreement or, subject to Section 15 below, in writing after
the Award agreement is issued, a participant's rights in all Performance Share
Awards shall automatically terminate upon the participant's termination of
employment (or cessation of business relationship) with the Company and its
Subsidiaries for any reason.
(d) Acceleration, Waiver, Etc. At any time prior to the participant's
-------------------------
termination of employment (or other business relationship) by the Company and
its Subsidiaries, the Administrator may in its sole discretion accelerate, waive
or, subject to Section 15, amend any or all of the goals, restrictions or
conditions applicable to a Performance Share Award.
SECTION 11. PERFORMANCE-BASED AWARDS TO COVERED EMPLOYEES
---------------------------------------------
Notwithstanding anything to the contrary contained herein, if any
Restricted Stock Award, Deferred Stock Award or Performance Share Award granted
to a Covered Employee is intended to qualify as "Performance-based Compensation"
under Section 162(m) of the Code and the regulations promulgated thereunder
(a "Performance-based Award"), such Award shall comply with the provisions set
forth below:
(a) Performance Criteria. The performance criteria used in performance
--------------------
goals governing Performance-based Awards granted to Covered Employees may
include any or all of
<PAGE>
the following: (i) the Company's return on equity, assets, capital or
investment, (ii) pre-tax or after-tax profit levels of the Company or any
Subsidiary, a division, an operating unit or a business segment of the Company,
or any combination of the foregoing; (iii) cash flow, EBITDA or similar
measures; (iv) total shareholder return; (v) changes in the market price of the
Stock; (vi) sales or market share; or (vii) earnings per share.
(b) Grant of Performance-based Awards. With respect to each Performance-
---------------------------------
based Award granted to a Covered Employee, the Committee shall select, within
the first 90 days of a Performance Cycle (or, if shorter, within the maximum
period allowed under Section 162(m) of the Code) the performance criteria for
such grant, and the achievement targets with respect to each performance
criterion (including a threshold level of performance below which no amount will
become payable with respect to such Award). Each Performance-based Award will
specify the amount payable, or the formula for determining the amount payable,
upon achievement of the various applicable performance targets. The performance
criteria established by the Committee may be (but need not be) different for
each Performance Cycle and different goals may be applicable to Performance-
based Awards to different Covered Employees.
(c) Payment of Performance-based Awards. Following the completion of a
-----------------------------------
Performance Cycle, the Committee shall meet to review and certify in writing
whether, and to what extent, the performance criteria for the Performance Cycle
have been achieved and, if so, to also calculate and certify in writing the
amount of the Performance-based Awards earned for the Performance Cycle. The
Committee shall then determine the actual size of each Covered Employee's
Performance-based Award, and, in doing so, may reduce or eliminate the amount of
the Performance-based Award for a Covered Employee if, in its sole judgment,
such reduction or elimination is appropriate.
(d) Maximum Award Payable. The maximum Performance-based Award payable to
---------------------
any one Covered Employee under the Plan for a Performance Cycle is 4,000,000
Shares (subject to adjustment as provided in Section 3(b) hereof).
SECTION 12. DIVIDEND EQUIVALENT RIGHTS
--------------------------
(a) Dividend Equivalent Rights. A Dividend Equivalent Right is an Award
--------------------------
entitling the recipient to receive credits based on cash dividends that would
have been paid on the shares of Stock specified in the Dividend Equivalent Right
(or other award to which it relates) if such shares had been issued to and held
by the recipient. A Dividend Equivalent Right may be granted hereunder to any
participant as a component of another Award or as a freestanding award. The
terms and conditions of Dividend Equivalent Rights shall be specified in the
grant. Dividend equivalents credited to the holder of a Dividend Equivalent
Right may be paid currently or may be deemed to be reinvested in additional
shares of Stock, which may thereafter accrue additional equivalents. Any such
reinvestment shall be at Fair Market Value on the date of reinvestment or such
other price as may then apply under a dividend reinvestment plan sponsored by
the Company, if any. Dividend Equivalent Rights may be
<PAGE>
settled in cash or shares of Stock or a combination thereof, in a single
installment or installments. A Dividend Equivalent Right granted as a component
of another Award may provide that such Dividend Equivalent Right shall be
settled upon exercise, settlement, or payment of, or lapse of restrictions on,
such other award, and that such Dividend Equivalent Right shall expire or be
forfeited or annulled under the same conditions as such other award. A Dividend
Equivalent Right granted as a component of another Award may also contain terms
and conditions different from such other award.
(b) Interest Equivalents. Any Award under this Plan that is settled in
--------------------
whole or in part in cash on a deferred basis may provide in the grant for
interest equivalents to be credited with respect to such cash payment. Interest
equivalents may be compounded and shall be paid upon such terms and conditions
as may be specified by the grant.
(c) Termination. Except as may otherwise be provided by the Administrator
-----------
either in the Award agreement or, subject to Section 15 below, in writing after
the Award agreement is issued, a participant's rights in all Dividend Equivalent
Rights or interest equivalents shall automatically terminate upon the
participant's termination of employment (or cessation of business relationship)
with the Company and its Subsidiaries for any reason.
SECTION 13. TAX WITHHOLDING
---------------
(a) Payment by Participant. Each participant shall, no later than the date
----------------------
as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Administrator regarding payment of, any Federal, state, or
local taxes of any kind required by law to be withheld with respect to such
income. The Company and its Subsidiaries shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise
due to the participant. The Company's obligation to deliver stock certificates
to any participant is subject to and conditioned on tax obligations being
satisfied by the participant.
(b) Payment in Stock. Subject to approval by the Administrator, a
----------------
participant may elect to have the minimum required tax withholding obligation
satisfied, in whole or in part, by (i) authorizing the Company to withhold from
shares of Stock to be issued pursuant to any Award a number of shares with an
aggregate Fair Market Value (as of the date the withholding is effected) that
would satisfy the withholding amount due, or (ii) transferring to the Company
shares of Stock owned by the participant with an aggregate Fair Market Value (as
of the date the withholding is effected) that would satisfy the withholding
amount due.
SECTION 14. TRANSFER, LEAVE OF ABSENCE, ETC.
-------------------------------
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
<PAGE>
(a) a transfer to the employment of the Company from a Subsidiary or from
the Company to a Subsidiary, or from one Subsidiary to another; or
(b) an approved leave of absence for military service or sickness, or for
any other purpose approved by the Company, if the employee's right to re-
employment is guaranteed either by a statute or by contract or under the policy
pursuant to which the leave of absence was granted or if the Administrator
otherwise so provides in writing.
SECTION 15. AMENDMENTS AND TERMINATION
--------------------------
The Board may, at any time, amend or discontinue the Plan and the
Administrator may, at any time, amend or cancel any outstanding Award for the
purpose of satisfying changes in law or for any other lawful purpose, but no
such action shall adversely affect rights under any outstanding Award without
the holder's consent. If and to the extent determined by the Administrator to
be required by the Code to ensure that Incentive Stock Options granted under the
Plan are qualified under Section 422 of the Code or to ensure that compensation
earned under Awards qualifies as performance-based compensation under Section
162(m) of the Code, if and to the extent intended to so qualify, Plan amendments
shall be subject to approval by the Company stockholders entitled to vote at a
meeting of stockholders. Nothing in this Section 15 shall limit the
Administrator's authority to take any action permitted pursuant to Section 3(c).
SECTION 16. STATUS OF PLAN
--------------
With respect to the portion of any Award that has not been exercised and
any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Administrator shall otherwise expressly
determine in connection with any Award or Awards. In its sole discretion, the
Administrator may authorize the creation of trusts or other arrangements to meet
the Company's obligations to deliver Stock or make payments with respect to
Awards hereunder, provided that the existence of such trusts or other
arrangements is consistent with the foregoing sentence.
SECTION 17. CHANGE OF CONTROL PROVISIONS
----------------------------
Upon the occurrence of a Change of Control as defined in this Section 17:
(a) Except as otherwise provided in the applicable Award agreement, each
outstanding Stock Option and Stock Appreciation Right shall automatically become
fully exercisable.
(b) Except as otherwise provided in the applicable Award Agreement,
conditions and restrictions on each outstanding Restricted Stock Award, Deferred
Stock Award and Performance Share Award which relate solely to the passage of
time and continued employment will be removed. Performance or other conditions
(other than conditions and
<PAGE>
restrictions relating solely to the passage of time and continued employment)
will continue to apply unless otherwise provided in the applicable Award
Agreement.
(c) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) any "Person," as such term is used in Sections 13(d) and 14(d)
of the Act (other than the Company, any of its Subsidiaries, or any
trustee, fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Company or any of its Subsidiaries),
together with all "affiliates" and "associates" (as such terms are defined
in Rule 12b-2 under the Act) of such person, shall become the "beneficial
owner" (as such term is defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing 25 percent or more of
the combined voting power of the Company's then outstanding securities
having the right to vote in an election of the Company's Board of Directors
("Voting Securities") (in such case other than as a result of an
acquisition of securities directly from the Company and other than a person
or entity owning such voting securities as of the Effective Date);
(ii) persons who, as of the Effective Date, constitute the Company's
Board of Directors (the "Incumbent Directors") cease for any reason,
including, without limitation, as a result of a tender offer, proxy
contest, merger or similar transaction, to constitute at least a majority
of the Board, provided that any person becoming a director of the Company
subsequent to the Effective Date shall be considered an Incumbent Director
if such person's election was approved by or such person was nominated for
election by either (A) a vote of at least a majority of the Incumbent
Directors or (B) a vote of at least a majority of the Incumbent Directors
who are members of a nominating committee comprised, in the majority, of
Incumbent Directors; but provided further, that any such person whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of members of the Board of
Directors or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board, including by reason of
agreement intended to avoid or settle any such actual or threatened contest
or solicitation, shall not be considered an Incumbent Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company where the stockholders of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such
term is defined in Rule 13d-3 under the Act), directly or indirectly,
shares representing in the aggregate more than 50 percent of the voting
shares of the corporation issuing cash or securities in the consolidation
or merger (or of its ultimate parent corporation, if any), (B) any sale,
lease, exchange or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as
<PAGE>
a single plan) of all or substantially all of the assets of the Company or
(C) any plan or proposal for the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be deemed to
have occurred for purposes of the foregoing clause (i) solely as the result of
an acquisition of securities by the Company which, by reducing the number of
shares of Voting Securities outstanding, increases the proportionate number of
shares of Voting Securities beneficially owned by any person to 25 percent or
more of the combined voting power of all then outstanding Voting Securities;
provided, however, that if any person referred to in this sentence shall
- -------- -------
thereafter become the beneficial owner of any additional shares of Voting
Securities (other than pursuant to a stock split, stock dividend, or similar
transaction or as a result of an acquisition of securities directly from the
Company), then a "Change of Control" shall be deemed to have occurred for
purposes of the foregoing clause (i).
SECTION 18. GENERAL PROVISIONS
------------------
(a) No Distribution; Compliance with Legal Requirements. The Administrator
---------------------------------------------------
may require each person acquiring Stock pursuant to an Award to represent to and
agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange or similar
requirements have been satisfied. The Administrator may require the placing of
such stop-orders and restrictive legends on certificates for Stock and Awards as
it deems appropriate.
(b) Delivery of Stock Certificates. Stock certificates to participants
------------------------------
under this Plan shall be deemed delivered for all purposes when the Company or a
stock transfer agent of the Company shall have mailed such certificates in the
United States mail, addressed to the participant, at the participant's last
known address on file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
-----------------------------------------------------
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of this
Plan and the grant of Awards do not confer upon any employee any right to
continued employment with the Company or any Subsidiary.
(d) Trading Policy Restrictions. Option exercises and other Awards under
---------------------------
the Plan shall be subject to such Company's insider trading policy, as in effect
from time to time.
<PAGE>
SECTION 19. EFFECTIVE DATE OF PLAN
----------------------
This Plan shall become effective upon approval by the holders of a majority
of the votes cast at a meeting of stockholders at which a quorum is present.
Subject to such approval by the stockholders and to the requirement that no
Stock may be issued hereunder prior to such approval, Stock Options and other
Awards may be granted hereunder on and after adoption of this Plan by the Board.
SECTION 20. GOVERNING LAW
-------------
This Plan and all Awards and actions taken thereunder shall be governed by,
and construed in accordance with, the laws of the State of Delaware, applied
without regard to conflict of law principles.
DATE APPROVED BY BOARD OF DIRECTORS: June 10, 1999
DATE APPROVED BY STOCKHOLDERS: July __, 1999
<PAGE>
Exhibit 10.31
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION.
FORM OF
PROMISSORY NOTE
---------------
Date: June __, 1999
$5,000,000.00
FOR VALUE RECEIVED, the undersigned ("Debtor") hereby promises to pay to
Voyager Information Networks, Inc., a Michigan corporation ("Payee"), at such
place or places as may be specified by Payee or any holder hereof, in legal
tender of the United States of America, the principal amount of $5,000,000.00
(the "Principal"), together with interest at the rate of 5.00% per annum,
compounded annually, on the unpaid balance. Interest shall accrue commencing on
the date hereof and shall be due and payable in full at the Repayment Date (as
hereinafter defined). The Debtor shall pay to Payee, within ten (10) days after
receipt thereof, the net after-tax proceeds from any sale by the Debtor of any
of the shares of Common Stock, par value $.0001 per share, of Voyager Holdings,
Inc. ("Parent") held by Debtor, in reduction of the Principal and accrued
interest thereon until such time as such Principal and interest have been repaid
in full. For purposes hereof, net after-tax proceeds refers to the amount
received by the Debtor upon any sale of such shares, less brokerage commissions
or underwriting discounts, other expenses of every kind, including documentary,
excise and other taxes, if any, directly relating to the sale and an amount
equal to the federal, state and local taxes on any gain from such sale (as
determined by multiplying the amount of such gain by the combined maximum
federal, state and local tax rate applicable to the sale of such shares by the
Debtor, taking into account the holding period for such shares and any federal
income tax deduction for state and local income taxes). In any event, any
Principal then unpaid shall be due and payable, with accrued interest thereon,
on the earlier of (i) the fourth (4th) anniversary of date hereof, (ii) the date
Debtor voluntarily terminates his employment with Payee and (iii) when all
Principal is otherwise paid in full upon the sale of the Shares (as defined
below) (the "Repayment Date").
This Note is subject to the terms of, and the payment hereof is secured by,
a certain Pledge Agreement dated as of the date hereof by and between Debtor and
Payee (the "Pledge Agreement"), pursuant to which the Debtor is pledging to the
Payee _______ of common stock, par value $0.0001 per share, of Parent (the
"Shares") owned by Debtor.
<PAGE>
In case an Event of Default, as defined in the Pledge Agreement, shall
occur, the aggregate unpaid balance of Principal and accrued interest thereon
may be declared to be due and payable in the manner and with the effect provided
in the Pledge Agreement. The obligation of the undersigned Debtor to pay the
Recourse Amount (as hereinafter defined) shall be absolute and unconditional,
and the Payee shall have full recourse against the Debtor's assets (including,
but not limited to, the collateral pledged pursuant to the Pledge Agreement) to
recover the Recourse Amount. The Recourse Amount as of any date shall mean 25%
of the Principal, plus accrued interest as of such date, reduced by any payment
of Principal and/or accrued interest made by or on behalf of the Debtor from
any source. With respect to amounts due and payable hereunder in excess of the
Recourse Amount, the Payee shall have no recourse against the Debtor or any of
his assets other than the collateral pledged pursuant to the Pledge Agreement,
and Payee shall look only to its rights as provided in the Pledge Agreement for
the repayment of amounts in excess of the Recourse Amount.
Debtor may discharge the obligations undertaken hereby, at any time, by
repaying the outstanding Principal and accrued interest thereon, without
penalty. Debtor may, without penalty, make a partial prepayment of Principal
and/or accrued interest thereon in any amount at any time and may thereby reduce
any required future payment hereunder by the amount of such prepayment. In the
event of any such prepayment, the number of Shares held by Payee under the
Pledge Agreement may, at the discretion of Payee, be reduced by a proportionate
amount.
Debtor expressly waives presentment for payment, protest and demand, notice
of protest, demand and dishonor and expressly agrees that this Note may be
extended from time to time without in any way affecting the liability of Debtor.
No delay or omission on the part of Payee in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this Note.
This Note may be changed, modified or terminated only by an agreement in
writing that is signed by the Debtor and Payee; provided, however, that the
-----------------
consent of Fleet National Bank, as agent, shall be required for any
modifications which affect the Lenders rights under Payee's Credit Agreement
dated September 23, 1999, as the same may be amended and/or restated from time
to time. This Note shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts, and shall be binding upon the
successors and assigns of Debtor and inure to the benefit of Payee and its
successors, endorsees and assigns.
DEBTOR:
-------------------------------------
Name: Christopher P. Torto
<PAGE>
Exhibit 16.1
[PLANTE & MORAN, LLP LETTERHEAD]
June 24, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
We were previously engaged as principal accountants to audit the financial
statements of Voyager.net, Inc. (formerly known as Voyager Information Networks,
Inc.) as of and for the year ended December 31, 1996 and 1997. Our appointment
as principal accountants was terminated. We have read Voyager.net, Inc.'s
disclosure statements regarding our engagement as its principal accountants and
the termination of our relationship, as included in its amended Form S-1 dated
June 11, 1999. We agree with all such statements.
Very truly yours,
Plante & Moran, LLP
/s/ Mary J. Schafer
Mary J. Schafer, CPA
Partner
