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EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VALICERT, INC.
Pursuant to Section 242 of the General Corporation Law of the State of Delaware,
Yosi Amram and Srinivasan Krishnan, President and Secretary, respectively, of
ValiCert, Inc. (hereinafter called the "Corporation"), organized and existing
under the General Corporation Law of the State of Delaware, in accordance with
the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That (a) the Board of Directors at a meeting held on May 5, 2000 duly
adopted a resolution pursuant to Section 242 of the General Corporation Law of
the State of Delaware proposing that this Certificate of Amendment to the Third
Amended and Restated Certificate of Incorporation (the "Amendment") be approved
and declaring the adoption of such Amendment to be advisable; and (b) the
stockholders of the Corporation duly approved this Amendment by written consent
in accordance with Sections 228 and 242 of the General Corporation Law of the
State of Delaware. The Third Amended and Restated Certificate of Incorporation
is accordingly amended:
Article IV(A) of the Third Amended and Restated Certificate of
Incorporation of the Corporation is amended by deleting the current
language of said Article IV(A) and replacing it with the following
language:
"(A) Classes of Stock. The Corporation is authorized to issue two
----------------
classes of stock to be designated respectively "Common Stock" and
"Preferred Stock." The total number of shares of stock that the
Corporation shall have authority to issue is ___________ shares,
consisting of 100,000,000 shares of Common Stock, $0.001 par value per
share, and ___________ shares of Preferred Stock, $0.001 par value per
share.
"Effective at the time (the "Effective Time") that this Certificate of
Amendment is filed with the Delaware Secretary of State, each share of
the Corporation's common stock, par value $0.00005 per share, issued
and outstanding immediately prior to the Effective Time (the "Old
Common Stock") shall automatically and without any action on the part
of the holder thereof be reconstituted and reclassified as and changed
into ______ of a share of the Corporation's common stock, $0.001 par
value per share (the "New Common Stock"), subject to the
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treatment of fractional share interests as described below. Each
holder of a certificate or certificates which immediately prior to the
Effective Time represented outstanding shares of Old Common Stock (the
"Old Certificates," whether one or more) shall be entitled to receive
upon surrender of such Old Certificates to the Corporation or the
Corporation's transfer agent for cancellation, a certificate or
certificates (the "New Certificates," whether one or more)
representing the number of whole shares of the New Common Stock into
which the shares of the Old Common Stock, formerly represented by such
Old Certificates so surrendered, are reclassified under the terms
hereof. From and after the Effective Time, Old Certificates shall
represent only the right to receive New Certificates (and, where
applicable, cash in lieu of fractional shares, as provided below)
pursuant to the provisions hereof. No certificates or scrip
representing fractional share interests in New Common Stock will be
issued, and no such fractional share interest will entitle the holder
thereof to vote or to any rights of a stockholder of the Corporation.
A holder of Old Certificates shall receive, in lieu of any fraction of
a share of New Common Stock to which the holder would otherwise be
entitled, a cash payment equal to the product of (i) such fraction of
a share of New Common Stock and (ii) the initial public offering
price. If more than one Old Certificate shall be surrendered at one
time for the account of the same stockholder, the number of full
shares of New Common Stock for which New Certificates shall be issued
shall be computed on the basis of the aggregate number of shares
represented by the Old Certificates so surrendered. In the event that
the Corporation or the Corporation's transfer agent determines that a
holder of Old Certificates has not tendered all his certificates for
exchange, the Corporation or the transfer agent shall carry forward
any fractional share until all certificates of that holder have been
presented for exchange such that payment for fractional shares to any
one person shall not exceed the initial public offering price. If any
New Certificate is to be issued in a name other than that in which the
Old Certificates surrendered for exchange are issued, the Old
Certificates so surrendered shall be properly endorsed and otherwise
in proper form for transfer, and the person or persons requesting such
exchange shall affix any requisite stock transfer tax stamps to the
Old Certificates surrendered, or provide funds for their purchase, or
establish to the satisfaction of the Corporation or the transfer agent
that such taxes are not payable."
2
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IN WITNESS WHEREOF, the Corporation has caused this Amendment of Third
Amended and Restated Certificate of Incorporation to be signed by its President
and attested by its Secretary this ____ day of _____________, 2000.
________________________________
Joseph (Yosi) Amram, President
Attest:
__________________________________________
Srinivasan (Chini) Krishnan, Secretary
3
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value per share ("Preferred Stock"). The Board of Directors is
authorized, subject to any limitations prescribed by law, to provide
for the issuance of shares of Preferred Stock in series and, by filing
a certificate pursuant to the applicable law of the State of Delaware,
to establish from time to time the number of shares to be included in
each such series, and to fix the designation, powers, preferences and
rights of the shares of each such series and any qualifications,
limitations or restrictions thereon. The number of authorized shares
of 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 Common Stock without a vote of the
holders of the Preferred Stock, or of any series thereof, unless a
vote of any such holders is required pursuant to the certificate or
certificates establishing the series of Preferred Stock.
FIFTH: The following provisions are inserted for the management of the
----- business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by
this Certificate of Incorporation or the Bylaws of the Corporation,
the directors are hereby empowered to exercise all such powers and do
all such acts and things as may be exercised or done by the
Corporation.
B. The directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide.
C. Effective upon the closing of the Corporation's initial public
offering of its common stock, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a
duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing by such
stockholders. At all times prior to the closing of the Corporation's
initial public offering of its common stock, any action which may be
taken at any annual or special meeting of stockholders may be taken
without a meeting and without prior notice, if a consent in writing,
setting forth the actions so taken, is signed by the holders of
outstanding shares having not less than the minimum number of votes
which would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted.
All such consents shall be filed with the Secretary of the Corporation
and shall be maintained in the corporate records. Prompt notice of the
taking of a corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not
consented in writing.
D. Special meetings of stockholders of the Corporation may be called only
by either the Board of Directors, the Chairman of the Board of
Directors or the President and Chief Executive Officer.
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SIXTH:
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A. The number of directors shall initially be seven (7) and thereafter
shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption). Effective upon the
closing of the closing of the Corporation's initial public offering of
its common stock, the Board of Directors shall be divided into three
classes with the term of office of the first class to expire at the
first annual meeting of the stockholders following the Effective Date,
the term of office of the second class to expire at the second annual
meeting of stockholders held following the Effective Date, the term of
office of the third class to expire at the third annual meeting of
stockholders following the Effective Date, and thereafter for each
such term to expire at each third succeeding annual meeting of
stockholders after such election. All directors shall hold office
until the expiration of the term for which elected, and until their
respective successors are elected, except in the case of the death,
resignation, or removal of any director.
B. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation or other cause
(including removal from office by a vote of the stockholders) may be
filled only by a majority vote of the directors then in office, though
less than a quorum, or by the sole remaining director, and directors
so chosen shall hold office for a term expiring at the next annual
meeting of stockholders at which the term of office of the class to
which they have been elected expires, and until their respective
successors are elected, except in the case of the death, resignation,
or removal of any director.
C. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, any directors, or the entire Board of Directors, may
be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least a majority of the voting
power of all of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors,
voting together as a single class.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
------- repeal Bylaws of the Corporation. The stockholders shall also have
power to adopt, amend or repeal the Bylaws of the Corporation. Any
adoption, amendment or repeal of Bylaws of the Corporation by the
stockholders shall require, in addition to any vote of the holders of
any class or series of stock of the Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the holders
of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
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EIGHTH: 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 (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involved intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a
director, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article
EIGHTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights
conferred upon stockholders are granted subject to this reservation;
provided, however, that, notwithstanding any other provision of this
-------- -------
Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any vote
of the holders of any class or series of the stock of this Corporation
required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least 66-2/3% of the voting
power of all of the then outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to
amend or repeal this Article NINTH, Article FIFTH, Article SIXTH,
Article SEVENTH or Article EIGHTH.
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IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Sixth Amended and Restated Certificate of Incorporation
to be signed by its President and attested by its Secretary this day of May
----
2000.
VALICERT, INC.
By: __________________________________
Yosi Amram, President
ATTEST:
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Srinivasan Krishnan, Secretary
