Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
CRITICAL PATH, INC.,
a California corporation
The undersigned, William E. McGlashan, Jr. and Michael J. Zukerman, do
hereby certify that:
1. They are the duly elected and acting Chief Executive Officer and
Chairman of the Board of Directors and Senior Vice President, General Counsel
and Secretary, respectively, of Critical Path, Inc., a California corporation
(the "Corporation").
2. Articles of Incorporation of this Corporation were originally filed
with the Secretary of State of California on February 19, 1997 under the name
Digital Post Office Corporation. An amended and restated set of the Articles of
Incorporation was filed on August 27, 1997 with the name of the Corporation
changed to Critical Paths Inc. On March 26, 1998 the Corporation filed an
Amended and Restated Articles of Incorporation and again changed the name of the
Corporation to Critical Path, Inc. and altered the capital structure of the
Corporation. On September 4, 1998, the Corporation filed an Amended and Restated
Articles of Incorporation altering the capital structure and authorized stock.
On December 17, 1998 the Corporation filed a Certificate of Amendment to the
Amended and Restated Articles of Incorporation revising the capital structure of
the Corporation. On January 5, 1999, the Corporation filed an additional
Certificate of Amendment to the Amended and Restated Articles of Incorporation
again revising its capital structure. On April 1, 1999 the Corporation filed a
fully Amended and Restated Articles of Incorporation increasing the authorized
shares of the Corporation to one hundred fifty-five million (155,000,000). On
April 5, 2000, the Corporation authorized and issued the Special Voting Stock in
connection with the closing of the acquisition of The DocSpace Company, amending
its Articles of Incorporation to reflect such issuance. On January 5, 2001, the
Corporation filed a Certificate of Amendment to the Amended and Restated
Articles of Incorporation that increased the authorized shares outstanding to
five hundred five million (505,000,000). On May 11, 2001, the Corporation filed
a Certificate of Determination of Rights, Preferences and Privileges of Series C
Participating Preferred Stock. On November 9, 2001, the Corporation filed a
Certificate of the Powers, Designations, Preferences and Rights to the Amended
and Restated Articles of Incorporation of Series D Cumulative Redeemable
Convertible Participating Preferred Stock. On August 1, 2003, the Corporation
filed a Certificate of Amendment to the Amended and Restated Articles of
Incorporation revising its capital structure and authorized stock. On November
20, 2003, the Corporation filed a Certificate of Increase in Number of Shares of
Series D Cumulative Redeemable Convertible Participating Preferred Stock that
increased the number of shares of Series D Cumulative Redeemable Convertible
Participating Preferred Stock from four million (4,000,000) to four million one
hundred eighty-eight thousand five hundred eighty-seven (4,188,587).
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3. Pursuant to Section 907 of the California Corporations Code, this
Certificate of Amendment amends the first paragraph of Article III of the
Corporation's Articles of Incorporation such that the first paragraph Article
III of the Corporation's Articles of Incorporation shall read in full as
follows:
"This Corporation is authorized to issue two classes of stock to be
designated respectively, Common Stock ("Common Stock") and Preferred Stock
("Preferred Stock"). The total number of shares of capital stock which the
Corporation is authorized to issue is two hundred seventy-five million
(275,000,000) shares, of which two hundred million (200,000,000) shares shall be
Common Stock, and seventy-five million (75,000,000) shares shall be Preferred
Stock. Both the Common Stock and the Preferred Stock shall have par value of
$0.001 per share. The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors of the Corporation (the "Board of
Directors") is expressly authorized, within the limitations and restrictions
stated in this Amended and Restated Articles of Incorporation, to provide for
the issue, in one or more series, of all or any of the remaining wholly unissued
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 and as
may be permitted by the General Corporation Law of California. 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."
4. The foregoing amendment to the Amended and Restated Articles of
Incorporation has been duly approved by this Corporation's Board of Directors.
The forgoing amendment of the Articles of Incorporation has been duly approved
by the required vote of shareholders in accordance with Section 902 and 903 of
the California Corporations Code. As of the record date for the annual meeting
of shareholders in which the foregoing amendment to the Amended and Restated
Articles of Incorporation was approved, the total number of outstanding shares
of the Corporation was [___________] million (_________) shares of Common Stock,
[___________] million (_________) shares of Series D Preferred Stock and one
share of Special Voting Stock. The number of shares voting in favor of the
amendment equaled or exceed the vote required. The percentage vote required
under the law and the Articles of Incorporation in effect at the time of this
amendment was more than 50% of the outstanding Common Stock and the votes
represented by the Special Voting Stock, voting together as a class, and more
than 50% of the outstanding Series D Preferred Stock, voting separately as a
class.
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The undersigned, William E. McGlashan, Jr. and Michael J. Zukerman, the
Chief Executive Officer and Chairman of the Board of Directors and Vice
President and Secretary, respectively, of Critical Path, Inc., declare under
penalty of perjury that the matters set out in the foregoing Certificate are
true of their own knowledge.
Executed at San Francisco, California on this [__] day of [__________],
[____].
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William E. McGlashan, Jr.,
Chief Executive Officer and
Chairman of the Board of Directors
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Michael J. Zukerman,
Senior Vice President, General Counsel
and Secretary