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.3 - HTML 1.43M
Reg.No.333-115328
2: EX-1.1 Form of Underwriting Agreement 44 179K
3: EX-3.2 Form of Amended Certificate of Incorporation 8 33K
4: EX-3.4 Form of Amended Bylaws 18 86K
5: EX-5.1 Opinion of Pillsbury Winthrop LLP 2± 10K
8: EX-10.10 Form of 2004 Employee Stock Purchase Plan 13 53K
9: EX-10.11 Form of Indemnification Agreement 12 47K
6: EX-10.3.1 Amendment to Peoplesupport Management Incentive 1 7K
7: EX-10.9 Form of 2004 Stock Incentive Plan 26 99K
10: EX-21.1 List of Subsidiaries 1 5K
11: EX-23.2 Consent of Bdo Seidman, LLP HTML 7K
12: EX-23.3 Consent of Pricewaterhousecoopers LLP 1 6K
EX-3.2 — Form of Amended Certificate of Incorporation
| EX-3.2 | 1st Page of 8 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PEOPLESUPPORT, INC.
PeopleSupport, Inc., a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
FIRST: The name of the corporation is PeopleSupport, Inc. (the
"Corporation").
SECOND:The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
July 2, 1998. An Amended and Restated Certificate of Incorporation was filed
with the Secretary of State of the State of Delaware on August 13, 1998. An
Amended and Restated Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on May 10, 1999. An Amended and Restated
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on June 29, 1999. An Amended and Restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
November 19, 1999. An Amended and Restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on April 11, 2000. A
Certificate of Amendment to the Amended and Restated Certificate of
Incorporation was filed on October 18, 2002. A Certificate of Amendment to the
Amended and Restated Certificate of Incorporation was filed on May 18, 2004. A
Certificate of Amendment to the Amended and Restated Certificate of
Incorporation was filed on _________, 2004.
THIRD: Pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware, this Amended and Restated Certificate
of Incorporation restates, integrates and further amends the provisions of the
Certificate of Incorporation of the Corporation, as amended to date.
FOURTH:The Certificate of Incorporation of the Corporation shall
be amended and restated to read in full as follows:
ARTICLE I
The name of the Corporation is PeopleSupport, Inc.
ARTICLE II
The address of the registered office of the Corporation in the
State of Delaware is 15 East North Street, City of Dover, County of Kent. The
name of its registered agent at such address is Incorporating Services, Ltd.
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ARTICLE III
The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
ARTICLE IV
A. Classes of Stock. The total number of shares of all classes of
capital stock that the Corporation shall have authority to issue is ninety one
million (91,000,000), of which eighty seven million (87,000,000) shares shall be
Common Stock, with a par value of $0.001 per share (the "Common Stock"), and
four million (4,000,000) shares shall be Preferred Stock, with a par value of
$0.001 per share (the "Preferred Stock"). The number of authorized shares of
Common Stock or Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the then outstanding shares of Common Stock, without a
vote of the holders of the Preferred Stock, or of any series thereof, unless a
vote of any such Preferred Stock holders is required pursuant to the provisions
established by the Board of Directors of the Corporation (the "Board of
Directors") in the resolution or resolutions providing for the issue of such
Preferred Stock, and if such holders of such Preferred Stock are so entitled to
vote thereon, then, except as may otherwise be set forth in this Amended and
Restated Certificate of Incorporation, the only stockholder approval required
shall be the affirmative vote of a majority of the combined voting power of the
Common Stock and the Preferred Stock so entitled to vote.
B. Preferred Stock. The Preferred Stock may be issued in any
number of series, as determined by the Board of Directors. 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 Preferred Stock and, in the
resolution or resolutions providing for such issue, to establish for each such
series the number of its shares, the voting powers, full or limited, of the
shares of such series, or that such shares shall have no voting powers, and the
designations, preferences and relative, participating, optional or other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof. 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 the series then
outstanding) the number of shares of any series subsequent to the issuance 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. Common Stock.
1. Relative Rights of Preferred Stock and Common Stock. All
preferences, voting powers, relative, participating, optional or other special
rights and privileges, and qualifications, limitations or restrictions of the
Common Stock are expressly made subject and subordinate to those that may be
fixed with respect to any shares of the Preferred Stock.
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2. Voting Rights. Except as otherwise required by law or this
Amended and Restated Certificate of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held by such holder of
record on the books of the Corporation for the election of directors and on all
matters submitted to a vote of stockholders of the Corporation.
3. Dividends. Subject to the preferential rights of the Preferred
Stock, the holders of shares of Common Stock shall be entitled to receive, when
and if declared by the Board of Directors, out of the assets of the Corporation
which are by law available therefor, dividends payable either in cash, in
property or in shares of capital stock.
4. Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of the Preferred Stock, holders of Common Stock shall be
entitled, unless otherwise provided by law or this Amended and Restated
Certificate of Incorporation, to receive all of the remaining assets of the
Corporation of whatever kind available for distribution to stockholders ratably
in proportion to the number of shares of Common Stock held by them respectively.
ARTICLE V
In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware:
A. The Board of Directors is expressly authorized to adopt, amend
or repeal the bylaws of the Corporation; provided, however, that the bylaws may
only be amended in accordance with the provisions thereof.
B. Elections of directors need not be by written ballot unless
the bylaws of the Corporation shall so provide.
C. The books of the Corporation may be kept at such place within
or without the State of Delaware as the bylaws of the Corporation may provide or
as may be designated from time to time by the Board of Directors.
ARTICLE VI
A. Number of Directors. The authorized number of directors of the
Corporation shall be determined from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors at any regular
or special meeting of such Board of Directors, within any limits prescribed in
the bylaws of the Corporation.
B. Classes of Directors. The Board of Directors, other than those
directors elected by the holders of any series of Preferred Stock as provided
for or fixed pursuant to the provisions of Article IV of this Amended and
Restated Certificate of Incorporation, shall be divided into three classes,
designated Class I, Class II and Class III, as nearly equal in number as
possible. The term of office of directors of one class shall expire at each
annual meeting of stockholders, and in all cases as to each director until his
or her successor shall be elected and
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shall qualify or until his or her earlier resignation, removal from office,
death or incapacity. Additional directorships resulting from an increase in the
number of directors shall be apportioned among the classes as equally as
possible. The initial term of office of directors of Class I shall expire at the
annual meeting of stockholders in 2005, the initial term of office of directors
of Class II shall expire at the annual meeting of stockholders in 2006 and the
initial term of office of directors of Class III shall expire at the annual
meeting of stockholders in 2007. At each annual meeting of stockholders, the
number of directors equal to the number of directors of the class whose term
expires at the time of such meeting (or, if less, the number of directors
properly nominated and qualified for election) shall be elected to hold office
until the third succeeding annual meeting of stockholders after their election.
C. Vacancies. Except as otherwise provided for or fixed pursuant
to the provisions of Article IV of this Amended and Restated Certificate of
Incorporation relating to the rights of the holders of any series of Preferred
Stock to elect additional directors, and subject to the provisions hereof, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause, may be filled only by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected 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 in which the vacancy occurred, and until such director's successor
shall have been duly elected and qualified or until his or her earlier
resignation, removal from office, death or incapacity. Subject to the provisions
of this Amended and Restated Certificate of Incorporation, no decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
ARTICLE VII
A. Power of Stockholder to Act by Written Consent. No action
required or permitted to be taken at any annual or special meeting of the
stockholders may be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action is
specifically denied.
B. Special Meetings of Stockholders. Special meetings of the
stockholders of the Corporation may be called for any purpose or purposes,
unless otherwise prescribed by statute or by this Amended and Restated
Certificate of Incorporation, only by the Chairman of the Board, the President
of the Corporation, the Chief Executive Officer of the Corporation, by a
resolution adopted by the affirmative vote of a majority of the Board of
Directors or by a resolution adopted by the affirmative vote of a sixty-six and
two-thirds percent (662/3%) of the independent directors.
C. Cumulative Voting. The stockholders of the Corporation shall
not have cumulative voting.
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ARTICLE VIII
A. Limitation on 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 (1) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders; (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (3) under Section 174 of
the Delaware General Corporation Law; or (4) for any transaction from which the
director derived an improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to
further eliminate or limit the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Delaware General Corporation Law.
B. Indemnification. Each person who is or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is an alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, 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 said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
as provided in the second paragraph hereof, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors. The right to indemnification conferred in
this section shall be a contract right and shall include the right to be paid by
the Corporation for any expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this section or otherwise. The Corporation may, by action of
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its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
If a claim under the first paragraph of this section is not paid
in full by the Corporation within thirty (30) days after a written claim has
been received by the Corporation, the claimant 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, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
section shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Amended and Restated
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
C. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
D. Repeal and Modification. Any repeal or modification of the
foregoing provisions of this Article VIII shall not adversely affect any right
or protection of any director, officer, employee or agent of the Corporation
existing at the time of such repeal or modification. To the fullest extent
permitted by applicable law, the Corporation is authorized to provide
indemnification of (and advancement of expenses to) agents of the Corporation
(and any other persons to whom Delaware law permits the Corporation to provide
indemnification) through bylaw provisions, agreements with such agents or other
persons, vote of stockholders or disinterested directors or otherwise, in excess
of the indemnification and advancement otherwise permitted by Section 145 of the
Delaware General Corporation Law, subject only to limits created by applicable
Delaware law (statutory or non-statutory), with respect to actions for breach of
duty to the Corporation, its stockholders and others.
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ARTICLE IX
The Board of Directors is expressly empowered to adopt, amend or
repeal the bylaws of the Corporation; provided, however, that any adoption,
amendment or repeal of the bylaws of the Corporation by the Board of Directors
shall require the approval of at least sixty-six and two-thirds percent (662/3%)
of the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board of
Directors). The stockholders shall also have the power to adopt, amend or repeal
the bylaws of the Corporation; provided, however, that in addition to any vote
of the holders of any class or series of stock of the Corporation required by
law or by this Amended and Restated Certificate of Incorporation, the
affirmative vote of the holders of at least seventy-five percent (75%) of the
voting power of all of the then-outstanding shares of the stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for such adoption, amendment or
repeal by the stockholders of any provisions of the bylaws of the Corporation.
ARTICLE X
Notwithstanding any other provision of this Amended and Restated
Certificate of Incorporation, the affirmative vote of the holders of at least
seventy-five percent (75%) of the voting power of all of the then-outstanding
shares of the stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
amend in any respect or repeal this Article IX, or Articles VI, VII and VIII.
FIFTH: This Amended and Restated Certificate of Incorporation was
duly adopted by the Board of Directors of the Corporation.
SIXTH: This Amended and Restated Certificate of Incorporation was
duly adopted by the stockholders in accordance with the provisions of Sections
242 and 245 of the General Corporation Law of the State of Delaware. Written
consent of the stockholders has been given with respect to this Amended and
Restated Certificate of Incorporation in accordance with Section 228 of the
General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, PeopleSupport, Inc. has caused this Amended and
Restated Certificate of Incorporation to be signed by its Chief Executive
Officer this _____ day of __________________ 2004.
By
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Lance Rosenzweig
Chief Executive Officer
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 7/27/04 | | | | | | | 10-12G/A |
| | 5/18/04 | | 1 |
| | 10/18/02 | | 1 |
| | 4/11/00 | | 1 |
| | 11/19/99 | | 1 |
| | 6/29/99 | | 1 |
| | 5/10/99 | | 1 |
| | 8/13/98 | | 1 |
| | 7/2/98 | | 1 |
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