Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) HTML 1.03M
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 23 92K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 2 15K
4: EX-3.3 Articles of Incorporation/Organization or By-Laws 5 32K
5: EX-3.4 Articles of Incorporation/Organization or By-Laws 23 109K
6: EX-10.1 Material Contract 10 50K
15: EX-10.10 Material Contract 99 325K
16: EX-10.11 Material Contract 13 43K
17: EX-10.12 Ex-10.2 6 36K
18: EX-10.13 Material Contract 10 41K
19: EX-10.14 Material Contract 10 39K
20: EX-10.15 Material Contract 10 39K
21: EX-10.16 Material Contract 8 33K
22: EX-10.17 Material Contract 8 33K
23: EX-10.18 Material Contract 10 43K
24: EX-10.19 Material Contract 10 44K
7: EX-10.2 Material Contract 14 69K
25: EX-10.20 Material Contract 10 43K
26: EX-10.21 Material Contract 7 27K
27: EX-10.22 Material Contract 7 31K
28: EX-10.24 Material Contract 10 48K
29: EX-10.25 Material Contract 10 48K
30: EX-10.26 Material Contract 11 57K
31: EX-10.27 Material Contract 11 52K
8: EX-10.3 Material Contract 3 19K
9: EX-10.4 Material Contract 11 41K
10: EX-10.5 Material Contract 14 68K
11: EX-10.6 Material Contract 18 79K
12: EX-10.7 Material Contract 23 93K
13: EX-10.8 Material Contract 16 71K
14: EX-10.9 Material Contract 5 26K
32: EX-23.1 Consent of Experts or Counsel 1 10K
EX-3.3 — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3.3
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PLANETOUT INC.
PLANETOUT INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the original name of the Corporation was PlanetOut
Partners, Inc. The original Certificate of Incorporation, the Amended and
Restated Certificate of Incorporation, the Second Amended and Restated
Certificate of Incorporation, the Third Amended and Restated Certificate of
Incorporation, the Fourth Amended and Restated Certificate of Incorporation, the
Fifth Amended and Restated Certificate of Incorporation and the Sixth Amended
and Restated Certificate of Incorporation of the Corporation, as amended by the
Certificate of Amendment, were filed with the Secretary of State of the State of
Delaware on December 7, 2000, April 16, 2001, May 1, 2001, June 29, 2001,
February 26, 2002, April 22, 2002, August 18, 2003 and April 27, 2004,
respectively.
SECOND: That by action of the Board of Directors of the
Corporation, taken on April 21, 2004 and filed with the minutes of the
Corporation, resolutions were duly adopted setting forth the proposed amendment
and restatement of the Sixth Amended and Restated Certificate of Incorporation
of the Corporation and declaring said amendment and restatement to be advisable.
The resolution setting forth the proposed amendment and restatement is as
follows:
RESOLVED, that the Amended and Restated Certificate of
Incorporation of the Corporation in substantially the form attached
hereto as Exhibit A be, and it hereby is, adopted and approved.
THIRD: That thereafter, pursuant to a resolution of the Board
of Directors, the stockholders of the Corporation took action by executing a
written consent in lieu of a meeting in accordance with Section 228 of the
General Corporation Law of the State of Delaware to approve such amendment and
restatement. The holders of a majority of the outstanding stock entitled to
consent thereto have granted written consent with respect to such stock in favor
of said amendment and restatement.
FOURTH: That said amendment and restatement was duly adopted
in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware. This Amended and Restated Certificate
of Incorporation amends and restates the provisions of the Sixth Amended and
Restated Certificate of Incorporation of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be signed by its duly authorized
officer, this __th day of __________, 2004.
PLANETOUT INC.
By:
-------------------------------------------
Lowell R. Selvin
Chief Executive Officer
EXHIBIT A
I.
The name of this corporation is PlanetOut Inc. (the
"Corporation").
II.
The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, and the name of the registered agent of the Corporation in the State of
Delaware at such address is Corporation Trust Company.
III.
The purpose of this Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the Delaware General
Corporation Law ("DGCL").
IV.
A. The Corporation is authorized to issue two classes of stock to
be designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the Corporation is authorized to issue is 105,000,000
shares, of which 100,000,000 shares shall be Common Stock and 5,000,000 shares
shall be Preferred Stock. The Common Stock shall have a par value of $0.001 per
share, and the Preferred Stock shall have a par value of $0.001 per share.
B. The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby expressly authorized to provide
for the issue of all or any of the shares of the Preferred Stock in one or more
series, and to fix the number of shares and to determine or alter for each such
series, such voting powers, full or limited, or no voting powers, and such
designation, preferences, and relative, participating, optional, or other rights
and such qualifications, limitations, or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such shares and as may be permitted by
the DGCL. The Board of Directors is also expressly authorized to increase or
decrease the number of shares of any series subsequent to the issuance of shares
of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be decreased in
accordance with the foregoing sentence, the shares constituting such decrease
shall resume the status that they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
C. Each outstanding share of Common Stock shall entitle the
holder thereof to one vote on each matter properly submitted to the stockholders
of the Company for their vote; provided, however, that, except as otherwise
required by law, holders of Common Stock shall not be entitled to vote on any
amendment to this Amended and Restated Certificate of Incorporation (including
any certificate of designation filed with respect to any series of Preferred
Stock) that relates solely to the terms of one or more outstanding series of
Preferred Stock, if the holders of such affected series are entitled, either
separately or together as a class with the holders of one or more other such
series, to vote thereon by law or pursuant to this Amended and Restated
Certificate of Incorporation (including any certificate of designation filed
with respect to any series of Preferred Stock).
V.
For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation, of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided that:
A.
1. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors. The number
of directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted by the Board of Directors.
2. Board of Directors.
a. Subject to the rights of the holders of any
series of Preferred Stock to elect additional directors under specified
circumstances, following the closing of the initial public offering pursuant to
an effective registration statement under the Securities Act of 1933, as
amended, covering the offer and sale of the Corporation's Common Stock to the
public (the "Initial Public Offering"), the directors shall be divided into
three classes designated as Class I, Class II and Class III, respectively.
Directors shall be assigned to each class in accordance with a resolution or
resolutions adopted by the Board of Directors. At the first annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class I directors shall expire and Class I directors shall be
elected for a full term of three years. At the second annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class II directors shall expire and Class II directors shall be
elected for a full term of three years. At the third annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class III directors shall expire and Class III directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
b. During such time or times that the
Corporation is subject to Section 2115(b) of the California General Corporation
Law ("CGCL"), Section A.2.a. of this Article V shall not apply and all directors
shall be elected at each annual meeting of stockholders to hold office until the
next annual meeting.
c. No stockholder entitled to vote at an
election for directors may cumulate votes to which such stockholder is entitled,
unless, at the time of such election, the Corporation is subject to Section
2115(b) of the CGCL. During such time or times that the Corporation is subject
to Section 2115(b) of the CGCL, every stockholder entitled to vote at an
election for directors may cumulate such stockholder's votes and give one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which such stockholder's shares are
otherwise entitled, or distribute the stockholder's votes on the same principle
among as many candidates as such stockholder thinks fit. No stockholder,
however, shall be entitled to so cumulate such stockholder's votes unless (i)
the names of such candidate or candidates have been placed in nomination prior
to the voting and (ii) the stockholder has given notice at the meeting, prior to
the voting, of such stockholder's intention to cumulate such stockholder's
votes. If any stockholder has given proper notice to cumulate votes, all
stockholders may cumulate their votes for any candidates who have been properly
placed in nomination. Under cumulative voting, the candidates receiving the
highest number of votes, up to the number of directors to be elected, are
elected.
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d. Notwithstanding the foregoing provisions of
this section, each director shall serve until his successor is duly elected and
qualified or until his death, resignation or removal. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
3. Removal of Directors.
a. During such time or times that the
Corporation is subject to Section 2115(b) of the CGCL, the Board of Directors or
any individual director may be removed from office at any time without cause by
the affirmative vote of the holders of at least a majority of the outstanding
shares entitled to vote on such removal; provided, however, that unless the
entire Board is removed, no individual director may be removed when the votes
cast against such director's removal, or not consenting in writing to such
removal, would be sufficient to elect that director if voted cumulatively at an
election which the same total number of votes were cast (or, if such action is
taken by written consent, all shares entitled to vote were voted) and the entire
number of directors authorized at the time of such director's most recent
election were then being elected.
b. At any time or times that the Corporation is
not subject to Section 2115(b) of the CGCL and subject to any limitations
imposed by law, Section A.3.a. above shall no longer apply and removal shall be
as provided in Section 141(k) of the DGCL.
4. Vacancies.
a. Subject to the rights of the holders of any
series of Preferred Stock, any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other causes and any newly
created directorships resulting from any increase in the number of directors,
shall, unless the Board of Directors determines by resolution that any such
vacancies or newly created directorships shall be filled by the stockholders,
except as otherwise provided by law, be filled only by the affirmative vote of a
majority of the directors then in office, even though less than a quorum of the
Board of Directors, and not by the stockholders. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the director for which the vacancy was created or occurred and
until such director's successor shall have been elected and qualified.
b. If at the time of filling any vacancy or any
increase in the size of the Board, the directors then in office shall constitute
less than a majority of the whole board (as constituted immediately prior to any
such increase), the Delaware Court of Chancery may, upon application of any
stockholder or stockholders holding at least 10% of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in offices as aforesaid, which election shall be governed by Section 211 of the
DGCL.
c. At any time or times that the Company is
subject to Section 2115(b) of the CGCL, if, after the filling of any vacancy by
the directors then in office who have been elected by stockholders shall
constitute less than a majority of the directors then in office, then:
(i) Any holder or holders of an
aggregate of 5% or more of the total number of shares at the time
outstanding having the right to vote for those directors may call a
special meeting of stockholders; or
(ii) The Superior Court of the proper
county shall, upon application of such stockholder or stockholders,
summarily order a special meeting of stockholders, to be held to elect
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the entire board, all in accordance with Section 305(c) of the CGCL.
The term of office of any director shall terminate upon that election
of a successor.
B.
1. Subject to paragraph (h) of Section 43 of the Bylaws,
the Board of Directors is expressly empowered to adopt, amend or repeal the
Bylaws of the Company. The stockholders shall also have power to adopt, amend or
repeal the Bylaws of the Company; provided, however, that, in addition to any
vote of the holders of any class or series of stock of the Company required by
law or by this Amended and Restated Certificate of Incorporation, the
affirmative vote of the holders of at least 66-2/3% of the voting power of all
of the then-outstanding shares of the capital stock of the Company entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to adopt, amend or repeal any provision of the Bylaws of the
Company.
2. The directors of the Corporation need not be elected
by written ballot unless the Bylaws so provide.
3. No action shall be taken by the stockholders of the
Corporation except at an annual or special meeting of stockholders called in
accordance with the Bylaws or by written consent of stockholders in accordance
with the Bylaws prior to the closing of the Initial Public Offering. Following
the closing of the Initial Public Offering no action shall be taken by the
stockholders by written consent.
4. Advance notice of stockholder nominations for the
election of directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in the manner
provided in the Bylaws of the Corporation.
VI.
A. The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law.
B. Any repeal or modification of this Article VI shall be
prospective and shall not affect the rights under this Article VI in effect at
the time of the alleged occurrence of any act or omission to act giving rise to
liability or indemnification.
VII.
A. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, except as
provided in Section B of this Article VII, and all rights conferred upon the
stockholders herein are granted subject to this reservation.
B. Notwithstanding any other provision of this Amended and
Restated Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the voting stock
required by law, this Amended and Restated Certificate of Incorporation or any
certificate of designation of Preferred Stock, the affirmative vote of the
holders of at least 66-2/3% of the voting power of all of the then-outstanding
shares of the voting stock, voting together as a single class, shall be required
to alter, amend or repeal Articles V, VI and VII."
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Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 4/29/04 | | | | | | | None on these Dates |
| | 4/27/04 | | 1 |
| | 4/21/04 | | 1 |
| | 8/18/03 | | 1 |
| | 4/22/02 | | 1 |
| | 2/26/02 | | 1 |
| | 6/29/01 | | 1 |
| | 5/1/01 | | 1 |
| | 4/16/01 | | 1 |
| | 12/7/00 | | 1 |
| List all Filings |
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