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EXHIBIT 3.1
A469794
ENDORSED
FILED
IN THE OFFICE OF THE SECRETARY OF STATE
OF THE STATE OF CALIFORNIA
DEC 22, 1995
/s/ BILL JONES
SECRETARY OF STATE
RESTATED
ARTICLES OF INCORPORATION
OF NETWORK APPLIANCE, INC.
a California Corporation
The undersigned, Daniel J. Warmanhoven and Michael J. McCloskey, hereby
certify that:
ONE: They are the duly elected and acting President and Secretary
respectively, of said corporation.
TWO: The Articles of Incorporation of said corporation shall be amended
and restated to read in full as follows:
ARTICLE I
The name of this corporation is Network Appliance, Inc.
ARTICLE II
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
A. Class of Stock. This corporation is authorized to issue two classes
of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares that this corporation is authorized to issue is sixty
million (60,000,000) shares. Fifty five million (55,000,000) shares shall be
Common Stock and five million (5,000,000) shares shall be Preferred Stock.
B. Rights, Preferences and Restrictions of Preferred Stock. The
Preferred Stock authorized by these Amended and Restated Articles of
Incorporation may be issued from time to time in one or more series. The Board
of Directors is hereby authorized to fix or alter the rights, preferences,
privileges and restrictions granted to or imposed upon additional series of
Preferred Stock, and the number of shares constituting any such series and the
designation thereof, or of any of them. Subject to compliance with applicable
protective voting rights that have been or may be granted to the Preferred Stock
or series thereof in Certificates of Determination or this corporation's
Articles of Incorporation ("Protective Provisions"), but notwithstanding any
other rights of the Preferred Stock or any
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series thereof, the rights, privileges, preferences and restrictions of any such
additional series may be subordinated to, pari passu with (including, without
limitation, inclusion in provisions with respect to liquidation and acquisition
preferences, redemption and/or approval of matters by vote or written consent),
or senior to any of those of any present or future class or series of Preferred
or Common Stock. Subject to compliance with applicable Protective Provisions,
the Board of Directors is also authorized to increase or decrease the number of
shares of any series, prior or subsequent to the issue 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 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.
1. Repurchase of Shares. In connection with repurchases by this
Corporation of its Common Stock pursuant to its agreements with certain of the
holders thereof, Sections 502 and 503 of the California General Corporation Law
shall not apply in whole or in part with respect to such repurchases.
C. Common Stock.
1. Dividend Rights. Subject to the prior rights of holders of all
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of this corporation
legally available therefor, such dividends as may be declared from time to time
by the Board of Directors.
2. Liquidation Rights. Subject to the prior rights of holders of
all classes of stock at the time outstanding having prior rights as to
liquidation, upon the liquidation, dissolution or winding up of this
corporation, the assets of this corporation shall be distributed to the holders
of Common Stock.
3. Redemption. The Common Stock is not redeemable.
4. Voting Rights. The holder of each share of Common Stock shall
have the right to one vote, and shall be entitled to notice of any shareholders'
meeting in accordance with the bylaws of this corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law.
ARTICLE IV
Section 1. The liability of the directors of this corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law.
Section 2. This corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the California Corporations Code) through
bylaw provisions,
2.
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agreements with the agents, vote of shareholders or disinterested directors, or
otherwise in excess of the indemnification otherwise permitted by Section 317 of
the California Corporations Code, subject only to applicable limits set forth in
Section 204 of the California Corporations Code with respect to actions for
breach of duty to this corporation and its shareholders.
* * *
THREE: The foregoing amendment has been approved by the Board of Directors
of said corporation.
FOUR: All of the outstanding Series A, Series B and Series C Preferred
Stock, including any options, warrants or rights to purchase such shares of
Series A, Series B or Series C Preferred Stock, have been converted into Common
Stock, or options, warrants or rights to purchase such shares of Common Stock,
of the corporation pursuant to Section 4.(b) of Division B of Article III of the
present Articles of Incorporation.
FIVE: The present Articles of Incorporation of the corporation provide in
Section 7 of Division (B) of Article III that in the event shares of Series A,
Series B or Series C Preferred Stock shall be converted pursuant to Section 4
thereof, the shares so converted shall be cancelled and shall not be issuable by
the corporation. Therefore upon such conversion and cancellation, the total
authorized number of shares of the corporation became 60,000,000 and the
authorized number of shares of Preferred Stock of the corporation became
5,000,000.
SIX: The foregoing amendments reducing the number of shares of authorized
Preferred Stock and deleting reference to Series A, Series B and Series C
Preferred Stock do not require approval of the shareholders of the corporation
pursuant to Section 510(b) of the California Corporations Code, which states
that if all of the shares of a series are acquired by the issuer and their
reissue is prohibited by the articles, then the articles shall also be amended,
without shareholder approval, to reduce the authorized number of shares of that
class accordingly and to eliminate therefrom any statement of rights,
preferences, privileges and restrictions relating solely to that series.
3.
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IN WITNESS WHEREOF, the undersigned have executed this certificate on
December 20, 1995.
/s/ DANIEL J. WARMENHOVEN
---------------------------------
Daniel J. Warmenhoven
President
/s/ MICHAEL McCLOSKEY
---------------------------------
Michael McCloskey
Secretary
Each of the undersigned declares under penalty of perjury that the
statements contained in the foregoing certificate are true and correct of his
knowledge, and that this declaration was executed on December 20, 1995, at Palo
Alto, California.
/s/ DANIEL J. WARMENHOVEN
---------------------------------
Daniel J. Warmenhoven
President
/s/ MICHAEL McCLOSKEY
---------------------------------
Michael McCloskey
Secretary
4.
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A501693
STATE OF CALIFORNIA
SECRETARY OF STATE
[S E A L]
I, BILL JONES, Secretary of State of the State of California, hereby
certify:
That the attached transcript has been compared with the record on file in
this office, of which it purports to be a copy, and that it is full, true and
correct.
IN WITNESS WHEREOF, I execute this certificate
and affix the Great Seal of the State of
California this
DEC 23, 1997
/s/ BILL JONES
Secretary of State
[SEAL]
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A501693
ENDORSED - FILED
In the office of the Secretary of State
of the State of California
DEC 18 1997
BILL JONES, Secretary of State
CERTIFICATE OF AMENDMENT
OF THE RESTATED ARTICLES OF INCORPORATION OF
NETWORK APPLIANCE, INC.
The undersigned, Daniel J. Warmenhoven and Jeffry R. Allen, hereby certify
that:
ONE: They are the duly elected and acting President and Secretary,
respectively, of said corporation.
TWO: The Restated Articles of Incorporation of said corporation, filed on
December 22, 1995, shall be amended as set forth in this Certificate of
Amendment.
THREE: Section A of ARTICLE III of the Amended and Restated Articles of
Incorporation is amended to read in its entirety as follows:
"(A) CLASSES OF STOCK. This corporation is authorized to issue two
classes of stock to be designated, respectively, "Common Stock" and
"Preferred Stock." The total number of shares that the corporation is
authorized to issue is One Hundred Fifteen Million (115,000,000) shares.
One Hundred Ten Million (110,000,000) shares shall be Common Stock and
Five Million (5,000,000) shares shall be Preferred Stock.
As of December 18, 1997, each share of Common Stock outstanding is
split into two (2) shares of Common Stock."
* * *
FOUR: The foregoing Certificate of Amendment has been duly approved by the
Board of Directors of the Corporation.
FIVE: The foregoing Certificate of Amendment of the Restated Articles of
Incorporation does not require shareholder approval pursuant to Section 902(c)
of the General Corporation Law of the State of California. No shares of
Preferred Stock are outstanding.
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IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment on December 1, 1997.
/s/ Daniel J. Warmenhoven
-------------------------------------
Daniel J. Warmenhoven
/s/ Jeffry R. Allen
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Jeffry R. Allen
Secretary
The undersigned certify under penalty of perjury that they have read the
foregoing Certificate of Amendment and know the contents thereof, and that the
statements therein are true.
Executed at Santa Clara, California, on December 1, 1997
/s/ Daniel J. Warmenhoven
-------------------------------------
Daniel J. Warmenhoven
/s/ Jeffry R. Allen
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Jeffry R. Allen
[SEAL]