Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Peoplesupport, Inc.- Amend.No.4 - HTML 1.41M
Reg.No.333-115328
2: EX-3.1.2 Certificate of Amendment of Certificate of Inc. 5 21K
3: EX-3.1.3 Articles of Incorporation/Organization or By-Laws 1 7K
4: EX-4.1 Instrument Defining the Rights of Security Holders 2 10K
8: EX-10.12 Form of 2004 Stock Incentive Plan Stock Option 10 34K
Agmt
5: EX-10.4 Material Contract 41 137K
6: EX-10.7 Material Contract 36 162K
7: EX-10.8 Material Contract 55 221K
9: EX-23.2 Consent of Bdo Seidman, LLP HTML 7K
10: EX-23.3 Consent of Pricewaterhousecoopers LLP 1 6K
EX-3.1.2 — Certificate of Amendment of Certificate of Inc.
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EXHIBIT 3.1.2
State of Delaware
Secretary of State
Division of Corporations
Delivered 12:04 PM 08/05/2004
FILED 12:04 PM 08/05/2004
SRV 040573670 - 2908908 FILE
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PEOPLESUPPORT, INC.
PeopleSupport, Inc., a corporation duly organized and existing under the
General Corporation Law of Delaware (the "Corporation"), DOES HEREBY CERTIFY:
That the amendment to the Corporation's Amended and Restated Certificate of
Incorporation, as amended to date, set forth in the following resolution was
approved by the Corporation's Board of Directors and stockholders and was duly
adopted in accordance with the provisions of Sections 228 and 242 of the
General Corporation Law of the state of Delaware:
RESOLVED, that Article FOURTH, Sections A, B., C.1 and C.2(a) of the
Amended and Restated Certificate of Incorporation of the Corporation be amended
and restated to read in its entirety as follows:
"FOURTH:
A. This Corporation is authorized to issue two classes of shares to
be designated respectively Preferred Stock ("PREFERRED STOCK") and Common
Stock ("COMMON STOCK"). The total number of shares of capital stock this
Corporation is authorized to issue is twenty eight million two hundred two
thousand three hundred fifty four (28,202,354). The total number of shares
of Preferred Stock this Corporation shall have authority to issue is eleven
million two hundred twenty seven thousand ninety (11,227,090). The total
number of shares of Common Stock this Corporation shall have authority to
issue is sixteen million nine hundred seventy five thousand two hundred
sixty four (16,975,264) shares of common stock. The Preferred Stock shall
have a par value of $.001 per share and the Common Stock shall have a par
value of $.001 per share.
B. Seven hundred twelve thousand one hundred seventy six (712,176)
shares of the Preferred Stock shall be designated "SERIES A PREFERRED
STOCK," three million eight hundred forty seven thousand nine hundred
ninety three (3,847,993) shares shall be designated "SERIES B PREFERRED
STOCK," three million two hundred eighty eight thousand six hundred eleven
(3,288,611) shares shall be designated "SERIES C PREFERRED STOCK," and
three million three hundred seventy eight thousand three hundred ten
(3,378,310) shares shall be designated "SERIES D PREFERRED STOCK."
At the time this Certificate of Amendment to Amended and Restated
Certificate of Incorporation (this "Certificate of Amendment") shall become
effective, every 2.74 shares of Common Stock and of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock
issued and outstanding at such time shall be, and hereby are, changed and
reclassified into one (1) fully paid and non-assessable share of Common Stock
and of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock, as the case may be (the "Stock Split"). The
per share Issue Prices (as hereinafter defined), dividend and liquidation
amounts of the Common Stock and of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock as stated
herein reflect the Stock Split and no further adjustments shall be made to such
figures to reflect the Stock Split. Any provisions hereinafter in this
Certificate of Amendment that require adjustments for stock dividends,
combinations, splits, recapitalizations or other events refer to such events
that may occur after the Stock Split. Each outstanding stock certificate of the
corporation which, immediately prior to the time this Certificate of Amendment
shall become effective, representing one or more shares of Common Stock and of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock, as the case may be, shall thereafter be deemed to
represent the appropriate number of shares of Common Stock and of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock, as the case may be, taking into account the Stock Split, unless
and until such old stock certificate is exchanged for a new stock certificate
reflecting the appropriate number of shares resulting from the Stock Split. In
lieu of issuing fractional shares, any fractional shares resulting from the
Stock Split shall be eliminated by the Corporation's paying the holder of such
fractional share cash in an amount equal to such fraction multiplied by (a) in
the case of a fractional share of Common Stock, the fair market value of a share
of Common Stock, determined by the Board of Directors of the Corporation, and
(b) in the case of a fractional share of Preferred Stock, the per share
liquidation preference set forth in Paragraph 2(a) of this Article Fourth for
the particular series of Preferred Stock. From and after the effective time of
the Stock Split any fractional shares resulting from the Stock Split will be
automatically deemed cancelled and will represent only the right to receive such
cash payment.
Subject to the limitations contained in the Amended and Restated
Certificate of Incorporation, the remaining shares of Preferred Stock may be
issued from time to time in one or more series. Subject to the limitations
contained in this Amended and Restated Certificate of Incorporation, the Board
of Directors of the Corporation (the "Board of Directors") is expressly
authorized to provide for the issue, in one or more series, of all or any of the
remaining shares of the Preferred Stock, 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 designations, 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 issue of such
shares (a "Preferred Stock Designation") and as may be permitted by the General
Corporation Law of Delaware. Subject to the
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limitations contained in this Amended and Restated Certificate of
Incorporation, the Board of Directors is also expressly authorized (unless
forbidden in the resolution or resolutions providing for such issue) to increase
or decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series of Preferred Stock subsequent to the issue of
shares of that series. In case the number of shares of any such series shall be
so decreased, 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. The powers, preferences, rights, restrictions, and other matters
relating to the Series A Preferred Stock, the Series B Preferred Stock, the
Series C Preferred Stock, and the Series D Preferred Stock are as follows:
1. Dividends.
(a) The holders of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, and Series D Preferred Stock, in preference to
holders of Junior Stock, shall each be entitled to receive dividends at the
rate of $0.15, $0.27, $0.53, and $1.56, respectively, per share (as adjusted
for any stock dividends, combinations or splits with respect to such shares)
per annum, respectively, payable out of funds legally available therefor. Such
dividends shall be payable only when, as, and if declared by the Board of
Directors and shall be noncumulative. As used in this paragraph with respect
to the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, and Series D Preferred Stock, the term "Junior Stock" shall mean the
Common Stock and any other class or series of stock of the Corporation
hereafter authorized, designated or determined excepting any class or series of
stock which by its terms is on a parity with or has a preference or priority
over the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, and Series D Preferred Stock in the payment of dividends.
(b) No dividends (other than those payable solely in the Common Stock of
the Corporation) shall be paid on any Junior Stock of the Corporation during any
fiscal year of the Corporation until dividends in the total amount of $0.15,
$0.27, $0.53 and $1.56 per share (as adjusted for any stock dividends,
combinations or splits with respect to such shares) of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred
Stock, respectively, shall have been paid or declared and set apart during that
fiscal year. No dividends shall be paid on any share of Junior Stock unless a
dividend (including the amount of any dividends paid pursuant to the above
provisions of this Section C.1) is paid with respect to all outstanding shares
of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
and Series D Preferred Stock in an amount for each such share of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series
D Preferred Stock equal to or greater than the aggregate amount of such
dividends for all shares of Common Stock into which each such share of Series A
Preferred Stock, Series B
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Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock
could then be converted.
(c) In the event of a conversion of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, or Series D Preferred
Stock pursuant to Section 3 hereof, any accrued and unpaid dividends, if
any, shall be paid at the election of the holder in cash or Common Stock at
its then fair market value, as determined by the Board of Directors.
2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and
Series D Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets of the Corporation to
the holders of the Common Stock or other junior equity security by reason
of their ownership thereof, an amount per share equal to the sum of (i)
$1.83 for each outstanding share of Series A Preferred Stock (the "Original
Series A Issue Price") (as adjusted for any stock dividends, combinations
or splits with respect to such shares), (ii) $2.74 for each outstanding
share of Series B Preferred Stock (the "Original Series B Issue Price") (as
adjusted for any stock dividends, combinations or splits with respect to
such shares), (iii) $5.34 for each outstanding share of Series C Preferred
Stock (the "Original Series C Issue Price") (as adjusted for any stock
dividends, combinations or splits with respect to such shares), (iv) $15.65
for each outstanding share of Series D Preferred Stock (the "Original
Series D Issue Price") (as adjusted for any stock dividends, combinations
or splits with respect to such shares), and (v) an amount equal to all
declared but unpaid dividends on each such share. If upon the occurrence of
such event, the assets and funds thus distributed among the holders of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, and Series D Preferred Stock shall be insufficient to permit the
payment to such holders of the full aforesaid preferential amounts, then
the entire assets and funds of the Corporation legally available for
distribution shall be distributed ratably among the holders of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and
Series D Preferred Stock in proportion to the product of the liquidation
preference of each such share and the number of such shares owned by each
such holder. As provided herein, assets and funds of the Corporation
legally available for distribution shall not include amounts payable under
bonus or incentive plans approved by the Board of Directors in connection
with services rendered to the Corporation."
RESOLVED, that Article FOURTH, Section C.3(b)(iii) of the Amended and
Restated Certificate of Incorporation of the Corporation be amended and
restated to read in its entirety as follows:
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"(iii) The Corporation shall have the right to convert each share of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock, respectively, into shares of Common
Stock at the applicable Series A Conversion Price, Series B Conversion
Price, Series C Conversion Price and Series D Conversion Price, as the
case may be, then in effect immediately upon the closing of the sale of the
Corporation's Common Stock in a firm commitment, underwritten public
offering registered under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), other than a registration relating solely to a
transaction under Rule 145 under the Securities Act or to an employee
benefit plan of the Corporation, if such firm commitment, underwritten
public offering is consummated at a price per share of at least $9.59 (as
adjusted for any stock dividends, combinations, splits, recapitalizations
and the like) and with aggregate proceeds to the Corporation and/or any
selling stockholders (before deduction for underwriters' discounts and
expenses) of at least $40,000,000 (a "Qualified Public Offering")."
RESOLVED, that Article FOURTH, Section C.3(d)(i)(7)(E) of the Amended and
Restated Certificate of Incorporation of the Corporation be amended and
restated to read in its entirety as follows:
"(E) To lessors or lenders to and strategic partners of the Corporation
under agreements approved by the Board of Directors, which issuances are
primarily other than for equity financing purposes and which in any event do
not exceed 364,964 shares (as adjusted for any stock splits, stock dividends,
recapitalizations or the like) in the aggregate,"
IN WITNESS WHEREOF, PeopleSupport, Inc. has caused this certificate to be
signed by its duly authorized Chief Executive Officer this 5th day of August,
2004.
PEOPLESUPPORT, INC.
By: /s/ Lance Rosenzweig
-------------------------------------
Lance Rosenzweig
Chief Executive Officer
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