EXHIBIT 3(ii)
AMENDED AND RESTATED
B Y L A W S
OF
CRITICAL PATH, INC.
(Effective as of April 1, 1999)
(Amended as of June 25, 2003)
ARTICLE I
Principal Office
Section 1. Principal Office. The Board of Directors shall fix the
location of the principal executive office of the corporation at any place
within or outside the State of California. If the principal executive office is
located outside California and the corporation has one or more business offices
in California, then the Board of Directors shall fix and designate a principal
business office in California.
Section 2. Other Offices. The Board of Directors may at any time
establish branch or subordinate offices at any place or places.
ARTICLE II
Meetings of Shareholders
Section 1. Place of Meetings. All meetings of the shareholders shall be
held at any place within or without the State of California which may be
designated by the board of directors. In the absence of any such designation,
shareholders' meetings shall be held at the principal executive office of the
corporation.
Section 2. Annual Meetings. An annual meeting of shareholders shall be
held each year on a date and at a time designated by the Board of Directors. At
that meeting, directors shall be elected. Any other proper business may be
transacted at the annual meeting of shareholders.
Section 3. Special Meetings. Special meetings of the shareholders may
be called by the board of directors, the chairman of the board, the chief
executive officer and president, or by the holders of shares entitled to cast
not less than ten percent (10%) of the votes at the meeting. Notice of any
special meeting shall specify the general nature of the business to be
transacted, and no other business may be transacted at such meeting. Upon
receipt of a written request addressed to the chairman, chief executive officer
and president, vice president or secretary, mailed or delivered personally to
such officer by any person (other than the board) entitled to call a special
meeting of shareholders, such officer shall cause notice to be given, to the
shareholders entitled to vote, that a meeting will be held at a time requested
by the person or persons calling the meeting, not less than thirty-five (35) nor
more than sixty (60) days after the receipt of such request. If such notice is
not given within twenty (20) days after receipt of such request, the persons
calling the meeting may give notice thereof in the manner provided by these
bylaws or apply to the superior court as provided in the California General
Corporation Law.
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Section 4. Procedure of Annual Meeting; Notice of Meetings. To be
properly brought before the annual meeting, business must be either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a shareholder of record. In addition to
any other applicable requirements, for business to be properly brought before
the annual meeting by a shareholder, the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, addressed to the attention of
the Secretary of the Corporation, within 120 calendar days before the date of
the Corporation's proxy statement released to shareholders in connection with
the previous year's annual meeting. A shareholder's notice to the Secretary
shall set forth as to each matter the shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting, (ii) the name and record address of the shareholder
proposing such business, (iii) the class and number of shares of the Corporation
which are beneficially owned by the shareholder, and (iv) any material interest
of the shareholder in such business. Notwithstanding anything in these by-laws
to the contrary, no business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Section 4; provided, however,
that nothing in this Section 4 shall be deemed to preclude discussion by any
shareholder of any business properly brought before the annual meeting.
Written notice of each meeting of the shareholders, annual or special, shall be
given to each shareholder entitled to vote thereat not less than ten (10) days
nor more than sixty (60) days before the date of the meeting. Such notices shall
be given personally or by first-class mail or other means of written
communication permitted by the California General Corporation Law, charges
prepaid, addressed to each shareholder at the address appearing on the books of
the corporation, or given by the shareholder to the corporation for the purpose
of notice. If no address of a shareholder appears on the books of the
corporation or is given by the shareholder to the corporation, notice is duly
given to him or her if sent by mail or other means of written communication
addressed to the place where the principal executive office of the corporation
is located or if published at least once in a newspaper of general circulation
in the county in which said principal executive office is located. Any such
notice shall be deemed to have been given at the time when delivered personally
or deposited in the United States mail or sent by other means of written
communication.
Such notices shall state (i) the place, date and hour of the meeting,
(ii) those matters which the board, at the time of the mailing of the notice,
intends to present for action by the shareholders, (iii) if directors are to be
elected, the names of nominees intended at the time of the notice to be
presented by management for election, and (iv) such other matters, if any, as
may be expressly required by statute. In addition, in the case of a special
meeting, the general nature of the business to be transacted shall be set forth
in the notice, and no other business may be transacted.
Section 5. Quorum. The presence in person or by proxy of the holders of
a majority of the shares entitled to vote at any meeting shall constitute a
quorum for the transaction of business. Except as provided in this section, the
affirmative vote of a majority of the shares represented and voting at a duly
held meeting at which a quorum is present shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required by law or
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the articles of incorporation. The shareholders present at a duly called or held
meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the shares required to constitute a quorum. In the absence
of a quorum, any meeting of shareholders may be adjourned from time to time by
the vote of a majority of the shares represented either in person or by proxy,
but no other business may be transacted except as provided in the preceding
sentence.
Section 6. No Cumulative Voting. In any election of directors of the
corporation, no shareholder of the corporation shall have the right to cumulate
votes in the manner described in section 708(a) of the California General
Corporation Law. This provision shall become effective only when the corporation
becomes a listed company within the meaning of section 301.5 of the Corporations
Code.
ARTICLE III
Board of Directors
Section 1. Powers. Subject to the provisions of the California General
Corporation Law and any limitations in the articles of incorporation and these
bylaws as to action to be authorized or approved by the shareholders, the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
Section 2. Number. The authorized number of directors shall not be less
than five (5) nor more than nine (9). The exact authorized number of directors
shall be fixed from time to time, within the limits specified in this Section 2
or in the articles of incorporation, by the board of directors, or by a bylaw or
amendment thereof duly adopted by the vote of 66-2/3% of the shares represented
and voting at a duly held meeting at which a quorum is present (which shares
voting affirmatively also constitute at least 66-2/3% of the required quorum).
Section 3. Election and Tenure. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors at the
annual meeting, by or at the direction of the Board of Directors, may be made by
the nominating committee of the Board of Directors or any person appointed by
the Board of Directors; nominations may also be made by any shareholder of
record of the Corporation entitled to vote for the election of directors at the
meeting who complies with the notice procedures set forth in this Section 3.
Such nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a shareholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation
addressed to the attention of the Secretary of the Corporation not less than 120
calendar days before the date of the Corporation's proxy statement released to
shareholders in connection with the previous year's annual meeting. Such
shareholder's notice to the Secretary shall set forth (a) as to each person whom
the shareholder proposes to nominate for election or reelection as a director,
(i) the name, age, business address and residence address of the person, (ii)
the principal occupation or employment of the person, (iii) the class and number
of shares of capital stock of the Corporation which are beneficially owned by
the person, (iv) a statement
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as to the person's citizenship, and (v) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to section 14 of the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder; and (b)
as to the shareholder giving the notice, (i) the name and record address of the
shareholder and (ii) the class, series and number of shares of capital stock of
the Corporation which are beneficially owned by the shareholder. The Corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as director of the Corporation. No person shall be
eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth herein.
Section 4. Vacancies. Vacancies in the board of directors, including a
vacancy created by the removal of a director, may be filled by a majority of the
directors then in office, whether or not less than a quorum, or by a sole
remaining director.
ARTICLE IV
Meetings of Directors
Section 1. Regular Meetings. Regular meetings of the board of directors
shall be held at any place within or without the State of California that has
been designated from time to time by the board of directors. In the absence of
such designation, regular meetings shall be held at the principal executive
office of the corporation; provided, however, that immediately following each
annual meeting of the shareholders there shall be a regular meeting of the board
of directors of the corporation at the place of said annual meeting or at such
other place as shall have been designated by the board of directors for the
purpose of organization, election of officers and the transaction of other
business. Other regular meetings of the board of directors shall be held without
call on such date and time as may be fixed by the board of directors; provided,
however, that should any such day fall on a legal holiday, then said meeting
shall be held at the same time on the next business day thereafter ensuing which
is not a legal holiday. Notice of regular meetings of the directors is hereby
dispensed with and no notice whatever of any such meeting need be given,
provided that notice of any change in the time or place of regular meetings
shall be given to all of the directors in the same manner as notice for special
meetings of the board of directors.
Section 2. Special Meetings. Special meetings of the board of directors
may be held at any place within or without the State of California which has
been designated in the notice of the meeting, or, if not designated in the
notice or if there is no notice, at the principal executive office of the
corporation. Special meetings of the board of directors for any purpose or
purposes may be called at any time by the chairman of the board or chief
executive officer and president or any two directors. Notice of the time and
place of special meetings shall be delivered personally or by telephone to each
director, or sent by first-class mail or telegram or facsimile transmission,
charges prepaid, addressed to him or her at his or her address as it appears
upon the records of the corporation or, if it is not so shown on the records and
is not readily ascertainable, at the place at which the meetings of the
directors are regularly held. Such notice shall be sent at least four (4) days
prior to the meeting if sent by mail and at least forty-eight (48) hours prior
to the meeting if delivered personally or by telephone or telegraph.
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The notice need not specify the place of the meeting if the meeting is to be
held at the principal executive office of the corporation, and need not specify
the purpose of the meeting.
Section 3. Quorum. Presence of a majority of the authorized number of
directors at a meeting of the board of directors constitutes a quorum for the
transaction of business, except as hereinafter provided. Members of the board
may participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear one another.
Section 4. Waiver. Notice of a meeting need not be given to any
director who signs a waiver of notice or consent to holding the meeting or an
approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 5. Action by Written Consent. Any action required or permitted
to be taken by the board of directors may be taken without a meeting if all
members of the board shall individually or collectively consent in writing to
such action. Such written consent or consents shall be filed with the minutes of
the proceedings of the board. Such action by written consent shall have the same
force and effect as a unanimous vote of such directors.
Section 6. Committees of the Board. The provisions of this Article IV
shall also apply, with necessary changes in points of detail, to committees of
the board of directors, if any, and to actions by such committees (except for
the first sentence of Section 2 of Article IV, which shall not apply, and except
that special meetings of a committee may also be called at any time by any two
members of the committee), unless otherwise provided by these bylaws or by the
resolution of the board of directors designating such committees. For such
purpose, references to "the board" or "the board of directors" shall be deemed
to refer to each such committee and references to "directors" or "members of the
board" shall be deemed to refer to members of the committee. Committees of the
board of directors may be designated, and shall be subject to the limitations on
their authority, as provided in section 311 of the California General
Corporation Law. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors.
ARTICLE V
Officers
Section 1. Officers. The officers of the corporation shall be a
chairman of the board or a chief executive officer and president or both, chief
financial officer and secretary. The corporation may also have, at the
discretion of the board of directors, one or more vice presidents, one or more
assistant secretaries and such other officers as may be designated from time to
time by the board of directors. Any number of offices may be held by the same
person. The officers shall be elected by the board of directors and shall hold
office at the pleasure of such board.
Section 2. Chairman of the Board. The chairman of the board, if there
be such officer, shall, if present, preside at all meetings of the board of
directors and exercise and perform such
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other powers and duties as may be from time to time assigned to him or her by
the board of directors or prescribed by the bylaws. If there is not a president,
the chairman of the board shall, in addition, be the general manager and chief
executive officer of the corporation and shall have the powers and duties
prescribed in Section 3 of this Article V.
Section 3. Chief Executive Officer and President. Subject to such
supervisory powers, if any, as may be given by the board of directors to the
chairman of the board, if there be such an officer, the chief executive officer
and president of the corporation shall, subject to the control of the board of
directors, have general supervision, direction and control of the business and
officers of the corporation. The chief executive officer and president shall
have the general powers and duties of management usually vested in the chief
executive officer and president of a corporation, and shall have such other
powers and duties as may be prescribed by the board of directors or bylaws.
Section 4. Vice Presidents. In the absence or disability of the
president, the vice presidents in order of their rank as fixed by the board of
directors or, if not ranked, the vice president designated by the board of
directors, shall perform all of the duties of the chief executive officer and
president and when so acting shall have all the powers of and be subject to all
the restrictions upon the chief executive officer and president. The vice
presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them, respectively, by the board of directors
or the bylaws.
Section 5. Secretary. The secretary shall keep or cause to be kept at
the principal executive office of the corporation or such other place as the
board of directors may order, a book of minutes of all proceedings of the
shareholders, the board of directors and committees of the board, with the time
and place of holding, whether regular or special, and if special how authorized,
the notice thereof given, the names of those present at directors' and committee
meetings, and the number of shares present or represented at shareholders'
meetings. The secretary shall keep or cause to be kept at the principal
executive office or at the office of the corporation's transfer agent a record
of shareholders or a duplicate record of shareholders showing the names of the
shareholders and their addresses, the number of shares and classes of shares
held by each, the number and date of certificates issued for the same and the
number and date of cancellation of every certificate surrendered for
cancellation. The secretary or an assistant secretary or, if they are absent or
unable or refuse to act, any other officer of the corporation, shall give or
cause to be given notice of all the meetings of the shareholders, the board of
directors and committees of the board required by the bylaws or by law to be
given, and he or she shall keep the seal of the corporation, if any, in safe
custody and shall have such other powers and perform such other duties as may be
prescribed by the board of directors or by the bylaws.
Section 6. Assistant Secretaries. It shall be the duty of the assistant
secretaries to assist the secretary in the performance of his or her duties and
generally to perform such other duties as may be delegated to them by the board
of directors.
Section 7. Chief Financial Officer. The chief financial officer shall
keep and maintain, or cause to be kept and maintained, in accordance with
generally accepted accounting principles adequate and correct books and records
of account of the corporation. He or she shall receive and deposit all moneys
and other valuables belonging to the corporation in the
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name and to the credit of the corporation and shall disburse the same only in
such manner as the board of directors or the appropriate officers of the
corporation may from time to time determine, shall render to the chief executive
officer and president and the board of directors, whenever they request it, an
account of all his or her transactions as chief financial officer and of the
financial condition of the corporation, and shall perform such further duties as
the board of directors may require.
Section 8. Assistant Treasurers. It shall be the duty of the assistant
treasurers to assist the chief financial officer in the performance of his or
her duties and generally to perform such other duties as may be delegated to
them by the board of directors.
Section 9. Loans or Guarantees of Obligations of Directors and
Officers. The corporation may make any loan of money or property to, or
guarantee the obligation of, any director or officer of the corporation or of
its parent if such loan or guaranty is approved by the board alone by a vote
sufficient without counting the vote of any interested director or directors if
the board determines that such loan or guaranty may reasonably be expected to
benefit the corporation.
ARTICLE VI
Amendments
Section 1. By Shareholders. New bylaws may be adopted or these bylaws
may be amended or repealed by the affirmative vote or written consent of 66-2/3%
of the outstanding shares entitled to vote, except as otherwise provided by law
or by the articles of incorporation or these bylaws.
Section 2. By Directors. Subject to the right of shareholders as
provided in Section 1 of this Article to adopt, amend or repeal bylaws, and
except as otherwise provided by law or by the articles of incorporation, bylaws,
other than a bylaw or amendment thereof changing the authorized maximum or
minimum number of directors, may be adopted, amended or repealed by the board of
directors.
ARTICLE VII
Annual and Other Reports
The board of directors of the corporation shall cause an annual report
to be sent to the shareholders not later than one hundred twenty (120) days
after the close of the fiscal year of the corporation. Such report shall contain
a balance sheet as of the end of that completed fiscal year and an income
statement and statement of changes in cash flows for that fiscal year,
accompanied by any report thereon of independent accountants or, if there is no
such report, the certificate of an authorized officer of the corporation that
the statements were prepared without audit from the books and records of the
corporation. Such report shall be sent at least fifteen (15) days prior to the
annual meeting of shareholders to be held during the next fiscal year. The
annual report shall also contain any information required by section 1501(b) of
the California General Corporation Law.
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ARTICLE VIII
Indemnification
Section 1. Right of Indemnification. The corporation shall have power
to indemnify each of its agents to the fullest extent permissible by the
California General Corporation Law. Without limiting the generality of the
foregoing sentence, the corporation:
(a) is authorized to provide indemnification of agents in excess of
that otherwise permitted by section 317 of the California General Corporation
Law for those agents of the corporation for breach of duty to the corporation
and its shareholders; provided, however, that the corporation is not authorized
to provide indemnification of any agent for any acts or omissions or
transactions from which a director may not be relieved of liability as set forth
in the exception to section 204(a)(10) of the California General Corporation Law
or as to circumstances in which indemnity is expressly prohibited by section 317
of the California General Corporation Law; and
(b) shall have power to purchase and maintain insurance on behalf of
any agent of the corporation against any liability asserted against or incurred
by the agent in such capacity or arising out of the agent's status as such,
whether or not the corporation would have the power to indemnify the agent
against such liability under the provisions of section 317 of the California
General Corporation Law, and shall have power to advance the expenses reasonably
expected to be incurred by such agent in defending any such proceeding upon
receipt of the undertaking required by subdivision (f) of such section.
Section 2. Definition of Agent. The term "agent" used in this Article
shall have the same meaning as such term in section 317 of the California
General Corporation Law.
ARTICLE IX
Certificates and Transfer of Shares
Section 1. Certificates for Shares. Certificates for shares shall be of
such form and device as the board of directors may designate and shall state the
name of the record holder of the shares represented thereby; its number; date of
issuance; the number of shares for which it is issued; a statement of the
rights, privileges, preferences and restrictions, if any; a statement as to the
redemption or conversion, if any; a statement of liens or restrictions upon
transfer or voting, if any; if the shares be assessable or, if assessments are
collectible by personal action, a plain statement of such facts. Every
certificate for shares must be signed by the chief executive officer and
president or a vice president and the secretary or an assistant secretary or
must be authenticated by facsimiles of the signatures of the chief executive
officer and president and secretary or by a facsimile of the signature of its
chief executive officer and president and the written signature of its secretary
or an assistant secretary. Before it becomes effective every certificate for
shares authenticated by a facsimile of a signature must be countersigned by a
transfer agent or transfer clerk and must be registered by an incorporated bank
or trust company, either domestic or foreign, as registrar of transfers.
Section 2. Transfer on the Books. Upon surrender to the secretary or
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a
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new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 3. Lost or Destroyed Certificates. Any person claiming a
certificate of stock to be lost or destroyed shall make an affidavit or
affirmation of that fact and shall if the directors so require give the
corporation a bond of indemnity, in form and with one or more sureties
satisfactory to the board, in at least double the value of the stock represented
by said certificate, whereupon a new certificate may be issued in the same tenor
and for the same number of shares as the one alleged to be lost or destroyed.
Section 4. Transfer Agents and Registrars. The board of directors may
appoint one or more transfer agents or transfer clerks, and one or more
registrars, which shall be an incorporated bank or trust company -- either
domestic or foreign, who shall be appointed at such times and places as the
requirements of the corporation may necessitate and the board of directors may
designate.
Section 5. Closing Stock Transfer Books - Record Date. In order that
the corporation may determine the shareholders entitled to notice of any meeting
or to vote or entitled to receive payment of any dividend or other distribution
or allotment of any rights or entitled to exercise any rights in respect of any
other lawful action, the board may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days prior to the date of such meeting
nor more than sixty days prior to any other action.
Section 6. Legend Condition. In the event any shares of this
corporation are issued pursuant to a permit or exemption therefrom requiring the
imposition of a legend condition the person or persons issuing or transferring
said shares shall make sure said legend appears on the certificate and on the
stub relating thereto in the stock record book and shall not be required to
transfer any shares free of such legend unless an amendment to such permit or a
new permit be first issued so authorizing such a deletion.
ARTICLE X
Corporate Records and Reports -- Inspection
Section 1. Records. The corporation shall maintain, in accordance with
generally accepted accounting principles, adequate and correct accounts, books
and records of its business and properties. All of such books, records and
accounts shall be kept at its principal executive office in the State of
California, as fixed by the board of directors from time to time.
Section 2. Inspection of Books and Records. All books and records
provided for in section 1500 of the California General Corporation Law shall be
open to inspection of the directors and shareholders from time to time and in
the manner provided in sections 1600 - 1602.
Section 3. Certification and Inspection of Bylaws. The original or a
copy of these bylaws, as amended or otherwise altered to date, certified by the
secretary, shall be kept at the corporation's principal executive office and
shall be open to inspection by the shareholders of the company, at all
reasonable times during office hours, as provided in section 213 of the
California General Corporation Law.
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Section 4. Checks, Drafts, Etc. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the board of directors.
Section 5. Contracts, Etc. -- How Executed. The board of directors,
except as in the bylaws otherwise provided, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the corporation. Such authority may be general
or confined to specific instances.
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