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)
Delaware 7389 38-3431501
(State or Other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction Classification Code Number) Identification No.)
of Incorporation or
Organization)
----------
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.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement on Form S-3 is being
filed for the purpose of filing certain exhibits.
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):
Nature of Expense Amount
----------------- ----------
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
==========
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
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
. 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
(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.
II-3
**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.
- ---------------------
* To be filed by amendment to this registration statement.
** Previously filed.
II-4
(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
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.
Signature Title Date
--------- ----- ----
* 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
/s/ Dennis J. Stepaniak
*By:_____________________________
Attorney-in-fact
II-6
Exhibit
Number Description Page No.
------- ----------- --------
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.
Exhibit
Number Description Page No.
------- ----------- --------
**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.
- ---------------------
* To be filed by amendment to this registration statement.
** Previously filed.