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
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The name of the Corporation is Voyager.net, Inc.
ARTICLE II
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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
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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
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CAPITAL STOCK
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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.
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A. COMMON STOCK
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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
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1. Authority to Issue. The total number of shares of Undesignated
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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
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Restriction of Each Series of Undesignated Preferred Stock. The Board of
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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;
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(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
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1. Action without Meeting. Except as otherwise provided herein, any action
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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
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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.
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ARTICLE VI
DIRECTORS
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1. General. The business and affairs of the Corporation shall be managed
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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
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ballot unless the By-laws of the Corporation shall so provide.
3. Terms of Directors. The number of Directors of the Corporation shall
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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
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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
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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
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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
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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.
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ARTICLE VIII
AMENDMENT OF BY-LAWS
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1. Amendment by Directors. Except as otherwise provided by law, the By-
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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
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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
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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.
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THIS SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed
as of this ____ day of __________________________, 1999.
VOYAGER.NET, INC.
By:__________________________________
Name:
Title:
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