-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Iqs3Q3YS/mVCEP28KYHzpApn9x857W21G32u9QtqpNmCTd+VOlD7GmrwTfdpZacy Rdwwnx6zFvno5IHJrGqQ1w== 0000950149-01-500913.txt : 20010618 0000950149-01-500913.hdr.sgml : 20010618 ACCESSION NUMBER: 0000950149-01-500913 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010615 EFFECTIVENESS DATE: 20010615 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CRITICAL PATH INC CENTRAL INDEX KEY: 0001060801 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 911788300 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-63080 FILM NUMBER: 1661322 BUSINESS ADDRESS: STREET 1: 320 FIRST STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94105 BUSINESS PHONE: 4158088800 MAIL ADDRESS: STREET 1: 320 FIRST STREET CITY: SAN FRNACISCO STATE: CA ZIP: 94105 S-8 1 f72043s-8.txt CRITICAL PATH, INC. FORM S-8 1 As filed with the Securities and Exchange Commission on June 15, 2001 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CRITICAL PATH, INC. ---------------------- (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) CALIFORNIA 532 FOLSOM STREET (STATE OF INCORPORATION SAN FRANCISCO, CALIFORNIA 94105 91-17883000 IDENTIFICATION NO.) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (I.R.S. EMPLOYER)
---------------------- 1998 AMENDED AND RESTATED STOCK PLAN, 1999 STOCK OPTION PLAN, 1999 EMPLOYEE STOCK PURCHASE PLAN (FULL TITLE OF THE PLANS) ---------------------- DAVID HAYDEN EXECUTIVE CHAIRMAN OF THE BOARD CRITICAL PATH, INC. 532 FOLSOM STREET SAN FRANCISCO, CALIFORNIA 94105 (415) 808-8800 (NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------------- Copy to: JORGE DEL CALVO, ESQ. PILLSBURY WINTHROP LLP 2550 HANOVER STREET PALO ALTO, CA 94304 (650) 233-4500 ---------------------- CALCULATION OF REGISTRATION FEE
============================================================================================================= PROPOSED PROPOSED MAXIMUM MAXIMUM MAXIMUM AMOUNT OFFERING AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION TO BE REGISTERED REGISTERED (1) PER SHARE PRICE FEE - ------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.001 to be issued upon exercise of options granted and outstanding and options authorized and unissued under the 1998 Stock Plan......................... 3,000,000 shares $1.28(2) $3,840,000 $ 960 ============================================================================================================= Common Stock, par value $0.001 to be issued upon exercise of options granted and outstanding and options authorized and unissued under the 1999 Stock Option Plan.................. 13,000,000 shares $1.28(2) $16,640,000 $4,160 ============================================================================================================= Common Stock, par value $0.001 to be issued upon exercise of options granted and outstanding and options authorized and unissued under the 1999 Employee Stock Purchase Plan................ 741,348 shares $1.28(2) $ 948,926 $ 238 ============================================================================================================= Total 16,741,348 shares $21,428,926 $5,358 =============================================================================================================
2 (1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Plans being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Computed in accordance with Rules 457(h) and 457(c) under the Securities Act of 1933. Such computation is based on an exercise price of $1.28 per share covering 16,741,348 authorized but unissued shares under the 1998 Stock Plan, 1999 Stock Option Plan and the 1999 Employee Stock Purchase Plan. The estimated exercise price of $1.28 per share was computed in accordance with Rule 457(c) by averaging the high and low sale prices of a share of Critical Path, Inc. Common Stock as reported on the Nasdaq National Market on June 11, 2001. ================================================================================ 3 CRITICAL PATH, INC. REGISTRATION STATEMENT ON FORM S-8 Explanatory Note: This registration statement relates to the reservation of 3,000,000 shares of the Company's Common Stock under Critical Path's 1998 Stock Option Plan that became automatically available for grant as of January 1, 2001 pursuant to the 1998 Stock Option Plan, 741,348 shares of the Company's Common Stock under Critical Path's 1999 Employee Stock Purchase Plan that became automatically available for grant as of January 1, 2001 pursuant to the 1999 Employee Stock Purchase Plan and 13,000,000 shares of the Company's Common Stock under Critical Path's 1999 Stock Option Plan that became available for grant pursuant to the resolution of the Board of Directors. PART II Item 3. Incorporation of Documents by Reference. The following documents previously filed by Critical Path, Inc. (the "Registrant") with the Securities and Exchange Commission (the "SEC") are hereby incorporated by reference in this Registration Statement: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed with the Securities and Exchange Commission on April 5, 2001; (b) The Registrant's Amendment to its Annual Report on Form 10-K/A for the fiscal year ended December 31, 2000, filed with the Securities and Exchange Commission on April 30, 2001; (c) The Registrant's Amendment to its Quarterly Report on Form 10-Q/A for the quarter ended September 30, 2000, filed with the Securities and Exchange Commission on April 5, 2001; (d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001, filed with the Securities and Exchange Commission on May 15, 2001; (e) The Registrant's Current Report on Form 8-K dated April 10, 2001, filed with the Securities and Exchange Commission on April 26, 2001; (f) The Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on April 2, 2001; (g) The Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on February 16, 2001; (h) The Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on February 14, 2001; (i) The Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on February 6, 2001; (j) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A, dated February 1, 1999; and (k) The description of the Series C Participating Preferred Stock Purchase Rights contained in the Registrant's Registration Statement on Form 8-A dated May 7, 2001: All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, on or after the date of this Registration Statement prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of the filing of such documents. Any statement contained in this Registration Statement or in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any subsequently filed document that is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement Item 4. Description of Securities. -3- 4 Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Registrant's Amended and Restated Articles of Incorporation limit the liability of the Registrant's directors for monetary damages to the maximum extent permitted by California law. Such limitation of liability has no effect on the availability of equitable remedies, such as injunctive relief or rescission. The Registrant's Amended and Restated Bylaws provide that the Registrant will indemnify its directors and officers and may indemnify its employees and agents (other than officers and directors) against certain liabilities to the maximum extent permitted by California law. The Registrant has entered into indemnification agreements with each of its current directors and officers and certain of its key employees that provide for indemnification of, and advancement of expenses to, such persons to the maximum extent permitted by California law, including by reason of action or inaction occurring in the past and circumstances in which indemnification and advancement of expenses are discretionary under California law. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits.
EXHIBIT NUMBER DESCRIPTION - ------------------- ----------------------------------------------------------------------------- 5.1 Opinion of Pillsbury Winthrop LLP 4.1 Amended and Restated 1998 Stock Plan 4.2 1999 Stock Option Plan (Incorporated by reference to Exhibit 10.5 to the Registrant's Posteffective Amendment to its Registration Statement on Form S-8 (No. 333-87553), filed April 27, 2000) 4.3 1999 Employee Stock Purchase Plan 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 23.2 Consent of Pillsbury Winthrop LLP (contained in Exhibit 5.1) 24.1 Power of Attorney (see signature page)
- ------------------ Item 9. Undertakings. 1. The Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of -4- 5 distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. -5- 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on June 14, 2001. CRITICAL PATH, INC. By: /s/ DAVID C. HAYDEN -------------------------------------- David C. Hayden Executive Chairman of the Board POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears below constitutes and appoints David C. Hayden and Lawrence P. Reinhold, or either of them, his or her attorney-in-fact, with the power of substitution, for him or her in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in- fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ------------------------------------- ------------------------------------------ --------------- /s/ DAVID C. HAYDEN Executive Chairman of the Board June 14, 2001 - ------------------------------------- David C. Hayden /s/ WILLIAM E. MCGLASHAN, JR. Interim President and Chief Operating June 14, 2001 - ------------------------------------- Officer and Director William E. McGlashan, Jr. (Principal Executive Officer) /s/ LAWRENCE P. REINHOLD Executive Vice President and June 14, 2001 - ------------------------------------- Chief Financial Officer Lawrence P. Reinhold (Principal Financial and Accounting Officer) /s/ KEVIN R. HARVEY - ------------------------------------- Director June 14, 2001 Kevin R. Harvey - ------------------------------------- Director June __, 2001 Amy Rao /s/ GEORGE ZACHARY - ------------------------------------- Director June 14, 2001 George Zachary - ------------------------------------- Director June __, 2001 Stephen C. Richards
-6- 7 INDEX TO EXHIBITS
EXHIBIT DESCRIPTION NUMBER - ------------------- ----------------------------------------------------------------------------- 5.1 Opinion of Pillsbury Winthrop LLP 4.1 Amended and Restated 1998 Stock Plan 4.2 1999 Stock Option Plan (Incorporated by reference to Exhibit 10.5 to the Registrant's Posteffective Amendment to its Registration Statement on Form S-8 (No. 333-87553), filed April 27, 2000) 4.3 1999 Employee Stock Purchase Plan 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 23.2 Consent of Pillsbury Winthrop LLP (contained in Exhibit 5.1) 24.1 Power of Attorney (see signature page)
- ------------------ EX-4.1 2 f72043ex4-1.txt AMENDED AND RESTATED 1998 STOCK PLAN 1 EXHIBIT 4.1 CRITICAL PATH, INC. AMENDED AND RESTATED 1998 STOCK PLAN 2 CRITICAL PATH, INC. AMENDED AND RESTATED 1998 STOCK PLAN TABLE OF CONTENTS SECTION 1. Purpose...........................................................................1 SECTION 2. Definitions.......................................................................1 (a) "Board of Directors" .............................................................1 (b) "Code" ...........................................................................1 (c) "Committee".......................................................................1 (d) "Company".........................................................................1 (e) "Disability"......................................................................1 (f) "Employee"........................................................................1 (g) "Exercise Price"..................................................................1 (h) "Fair Market Value" ..............................................................1 (i) "ISO" ............................................................................1 (j) "Nonstatutory Option".............................................................1 (l) "Option"..........................................................................2 (m) "Optionee"........................................................................2 (n) "Plan"............................................................................2 (o) "Purchase Price"..................................................................2 (p) "Service".........................................................................2 (q) "Share"...........................................................................2 (r) "Stock"...........................................................................2 (s) "Stock Option Agreement"..........................................................2 (t) "Stock Purchase Agreement"........................................................2 (u) "Subsidiary"......................................................................2 SECTION 3. Administration....................................................................2 (a) Committee Membership..............................................................2 (b) Committee Procedures..............................................................2 (c) Committee Responsibilities........................................................2 SECTION 4. Eligibility.......................................................................3 (a) General Rule......................................................................3 (b) Ten-Percent Stockholders..........................................................3 (c) Attribution Rules.................................................................3 (d) Outstanding Stock.................................................................4 SECTION 5. Stock Subject To Plan.............................................................4 (a) Basic Limitation..................................................................4 (b) Additional Shares.................................................................4 SECTION 6. Terms And Conditions Of Awards Or Sales...........................................4 (a) Stock Purchase Agreement..........................................................4
3 (b) Duration of Offers and Nontransferability of Rights...............................4 (c) Purchase Price....................................................................4 (d) Withholding Taxes.................................................................4 (e) Restrictions on Transfer of Shares................................................4 SECTION 7. Terms And Conditions Of Options...................................................5 (a) Stock Option Agreement............................................................5 (b) Number of Shares..................................................................5 (c) Exercise Price....................................................................5 (d) Withholding Taxes.................................................................5 (e) Exercisability....................................................................5 (f) Term..............................................................................5 (g) Nontransferability................................................................5 (h) Exercise of Options on Termination of Service.....................................5 (i) No Rights as a Stockholder........................................................6 (j) Modification, Extension and Assumption of Options.................................6 (k) Restrictions on Transfer of Shares................................................6 SECTION 8. Payment For Shares................................................................6 (a) General Rule......................................................................6 (b) Surrender of Stock................................................................6 (c) Promissory Notes..................................................................6 (d) Cashless Exercise.................................................................6 SECTION 9. Adjustment of Shares..............................................................6 (a) General...........................................................................6 (b) Reorganizations...................................................................7 (c) Reservation of Rights.............................................................7 SECTION 10. Legal Requirements................................................................7 SECTION 11. No Employment Rights..............................................................7 SECTION 12. Duration And Amendments...........................................................7 (a) Term of the Plan..................................................................7 (b) Right to Amend or Terminate the Plan..............................................7 (c) Effect of Amendment or Termination................................................7 SECTION 13. Execution.........................................................................8
4 CRITICAL PATH, INC. AMENDED AND RESTATED 1998 STOCK PLAN SECTION 1. Purpose. The purpose of the Plan is to offer selected employees, directors and consultants an opportunity to acquire a proprietary interest in the success of the Company, or to increase such interest, to encourage such selected persons to remain in the employ of the Company and to attract new employees with outstanding qualifications. The Plan provides for the direct award or sale of Shares and for the grant of Options to purchase Shares. Options granted under the Plan may include Nonstatutory Options as well as incentive stock options intended to qualify under section 422 of the Internal Revenue Code. SECTION 2. Definitions. (a) "Board of Directors" shall mean the Board of Directors of the Company, as constituted from time to time. (b) "Code" shall mean the Internal Revenue Code of 1986, as amended. (c) "Committee" shall mean one or more committees consisting of one or more members of the Board of Directors that is appointed by the Board of Directors. If no Committee has been appointed, the entire Board of Directors shall constitute the Committee. The Committee shall have membership composition which enables the Plan to qualify under Rule 16b-3 with regard to the grant of Options or other rights to acquire Shares to persons who are subject to Section 16 of the Securities Exchange Act of 1934. (d) "Company" shall mean Critical Path, Inc., a California corporation. (e) "Disability" shall means that an Optionee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. (f) "Employee" shall mean (i) any individual who is a common-law employee of the Company or of a Subsidiary, (ii) a member of the Board of Directors, or (iii) a consultant who performs services for the Company or a Subsidiary. Service as a member of the Board of Directors or as a consultant shall be considered employment for all purposes under the Plan except the second sentence of Section 4(a). (g) "Exercise Price" shall mean the amount for which one Share may be purchased upon exercise of an Option, as specified by the Committee in the applicable Stock Option Agreement. (h) "Fair Market Value" shall mean (i) the closing price of a share of Stock on the principal exchange which the shares are trading on the first trading day immediately preceding the date on which the Fair Market Value is determined, or (ii) if the shares are not traded on an exchange but are traded or quoted on the Nasdaq National Market or a successor quotation system, the closing price on the Nasdaq National Market or such successor quotation system on the first trading day immediately preceding the date on which the Fair Market Value is determined, or (iii) if the shares are not traded on an exchange or quoted on the Nasdaq National Market or a successor quotation system, the fair market value of a share as determined by the Committee in good faith. Such determination shall be conclusive and binding on all persons. (i) "ISO" shall mean an employee incentive stock option described in Code section 422(b). (j) "Nonstatutory Option" shall mean an employee stock option that is not an ISO. (k) "Offeree" shall mean an individual to whom the Committee has offered the right to acquire Shares (other than upon exercise of an Option). 1 5 (l) "Option" shall mean an ISO or Nonstatutory Option granted under the Plan and entitling the holder to purchase Shares. (m) "Optionee" shall mean an individual who holds an Option. (n) "Plan" shall mean this Critical Path, Inc. 1998 Stock Plan. (o) "Purchase Price" shall mean the consideration for which one Share may be acquired under the Plan (other than upon exercise of an Option), as specified by the Committee. (p) "Service" shall mean service as an Employee. (q) "Share" shall mean one share of Stock, as adjusted in accordance with Section 9 (if applicable). (r) "Stock" shall mean the common stock of the Company. (s) "Stock Option Agreement" shall mean the agreement between the Company and an Optionee which contains the terms, conditions and restrictions pertaining to his or her Option. (t) "Stock Purchase Agreement" shall mean the agreement between the Company and an Offeree who acquires Shares under the Plan which contains the terms, conditions and restrictions pertaining to the acquisition of such Shares. (u) "Subsidiary" shall mean any corporation, of which the Company and/or one or more other Subsidiaries own not less than 50 percent of the total combined voting power of all classes of outstanding stock of such corporation. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date. SECTION 3. Administration. (a) Committee Membership. The Plan shall be administered by the Committee. The members of the Committee shall be appointed by the Board of Directors. (b) Committee Procedures. The Board of Directors shall designate one of the members of the Committee as chairperson. The Committee may hold meetings at such times and places as it shall determine. The acts of a majority of the Committee members present at meetings at which a quorum exists, or acts reduced to or approved in writing by all Committee members, shall be valid acts of the Committee. (c) Committee Responsibilities. Subject to the provisions of the Plan, the Committee shall have full authority and discretion to take the following actions: (i) To interpret the Plan and to apply its provisions; (ii) To adopt, amend or rescind rules, procedures and forms relating to the Plan; (iii) To authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan; (iv) To determine when Shares are to be awarded or offered for sale and when Options are to be granted under the Plan; 2 6 (v) To select Offerees and Optionees; (vi) To determine the number of Shares to be awarded or offered for sale or to be made subject to each Option; (vii) To prescribe the terms and conditions of each award or sale of Shares, including (without limitation) the Purchase Price and vesting of the award, and to specify the provisions of the Stock Purchase Agreement relating to such award or sale; (viii) To prescribe the terms and conditions of each Option, including (without limitation) the Exercise Price and vesting of the Option, to determine whether such Option is to be classified as an ISO or as a Nonstatutory Option, and to specify the provisions of the Stock Option Agreement relating to such Option; (ix) To amend any outstanding Stock Purchase or Stock Option Agreement; provided, however, that the rights and obligations under any Stock Purchase or Stock Option Agreement shall not be materially altered or impaired adversely by any such amendment, except with the consent of the Optionee or Offeree; (x) To determine the disposition of an Option or other right to acquire Shares in the event of an Optionee's or Offeree's divorce or dissolution of marriage; (xi) To correct any defect, supply any omission, or reconcile any inconsistency in the Plan and any Stock Purchase or Stock Option Agreement; and (xii) To take any other actions deemed necessary or advisable for the administration of the Plan. All decisions, interpretations and other actions of the Committee shall be final and binding on all Offerees, Optionees, and all persons deriving their rights from an Offeree or Optionee. No member of the Committee shall be liable for any action that he or she has taken or has failed to take in good faith with respect to the Plan, any Option or any other right to acquire Shares under the Plan. SECTION 4. Eligibility. (a) General Rule. Only Employees shall be eligible for designation as Optionees or Offerees by the Committee. In addition, only individuals who are employed as common-law employees by the Company or a Subsidiary shall be eligible for the grant of ISOs. (b) Ten-Percent Stockholders. An Employee who owns more than 10 percent of the total combined voting power of all classes of outstanding stock of the Company or any of its Subsidiaries shall not be eligible for the grant of an ISO designation as an Optionee or Offeree unless (i) the Exercise Price is at least 110 percent of Fair Market Value on the date of grant, and (ii) such ISO by its terms is not exercisable after the expiration of five years from the date of grant. (c) Attribution Rules. For purposes of Subsection (b) above, in determining stock ownership, an Employee shall be deemed to own the stock owned, directly or indirectly, by or for his brothers, sisters, spouse, ancestors and lineal descendants. Stock owned, directly or indirectly, by or for a corporation, partnership, estate or trust shall be deemed to be owned proportionately by or for its stockholders, partners or beneficiaries. 3 7 (d) Outstanding Stock. For purposes of Subsection (b) above, "outstanding stock" shall include all stock actually issued and outstanding immediately after the grant. "Outstanding stock" shall not include shares authorized for issuance under outstanding options held by the Employee or by any other person. SECTION 5. Stock Subject To Plan. (a) Basic Limitation. Shares offered under the Plan shall be authorized but unissued Shares, or issued Shares that have been reacquired by the Company. The aggregate number of Shares which may be issued under the Plan (upon exercise of Options or other rights to acquire Shares) shall not exceed 30,788,741 Shares, subject to adjustment pursuant to this Section 5 and Section 9. The number of Shares which are subject to Options or other rights to acquire Shares outstanding at any time under the Plan shall not exceed the number of Shares which then remain available for issuance under the Plan. During the term of the Plan, the Company shall at all times reserve and keep available sufficient Shares to satisfy the requirements of the Plan. On each January 1 for the remaining term of the Plan, the aggregate number of Shares which may be issued under the Plan shall be increased by a number of Shares equal to two percent (2%) of the total number of shares of the Common Stock of the Company that had previously been authorized for issuance at the end of the most recently concluded calendar year. Any Shares that have been reserved but not issued as Shares or Options during any calendar year shall remain available for grant during any subsequent calendar year. Notwithstanding the foregoing, no more than 75,000,000 Shares shall be issued under ISOs for the remaining term of the Plan, subject to adjustment pursuant to Section 9. (b) Additional Shares. In the event that any outstanding Option or other right to acquire Shares for any reason expires or is canceled or otherwise terminated, the Shares allocable to the unexercised portion of such Option or other right shall again be available for the purposes of the Plan. SECTION 6. Terms And Conditions Of Awards Or Sales. (a) Stock Purchase Agreement. Each award or sale of Shares under the Plan (other than upon exercise of an Option) shall be evidenced by a Stock Purchase Agreement between the Offeree and the Company. Such award or sale shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions which are not inconsistent with the Plan and which the Committee deems appropriate for inclusion in a Stock Purchase Agreement. The provisions of the various Stock Purchase Agreements entered into under the Plan need not be identical. (b) Duration of Offers and Nontransferability of Rights. Any right to acquire Shares under the Plan (other than an Option) shall automatically expire if not exercised by the Offeree within the number of days specified by the Committee and communicated to the Offeree by the Committee. Such right shall not be transferable and shall be exercisable only by the Offeree to whom such right was granted. (c) Purchase Price. The Purchase Price of Shares to be offered under the Plan shall be determined by the Committee at its sole discretion. The Purchase Price shall be payable in a form described in Section 8 or in the form of services previously rendered to the Company. (d) Withholding Taxes. As a condition to the purchase of Shares, the Offeree shall make such arrangements as the Committee may require for the satisfaction of any federal, state or local withholding tax obligations that may arise in connection with such purchase. (e) Restrictions on Transfer of Shares. No Shares awarded or sold under the Plan may be sold or otherwise transferred or disposed of by the Offeree during the one hundred eighty (180) day period following the effective date of a registration statement covering securities of the Company filed under the Securities Act of 1933. Subject to the preceding sentence, any Shares awarded or sold under the Plan shall be subject to 4 8 such special conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Committee may determine. Such restrictions shall be set forth in the applicable Stock Purchase Agreement and shall apply in addition to any general restrictions that may apply to all holders of Shares. SECTION 7. Terms And Conditions Of Options. (a) Stock Option Agreement. Each grant of an Option under the Plan shall be evidenced by a Stock Option Agreement between the Optionee and the Company. Such Option shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions which are not inconsistent with the Plan and which the Committee deems appropriate for inclusion in a Stock Option Agreement. The provisions of the various Stock Option Agreements entered into under the Plan need not be identical. (b) Number of Shares. Each Stock Option Agreement shall specify the number of Shares that are subject to the Option and shall provide for the adjustment of such number in accordance with Section 9. The Stock Option Agreement shall also specify whether the Option is an ISO or a Nonstatutory Option. (c) Exercise Price. Each Stock Option Agreement shall specify the Exercise Price. The Exercise Price of an ISO shall not be less than one hundred percent (100%) of the Fair Market Value of a Share on the date of grant, except as otherwise provided in Section 4(b). The Exercise Price of a Nonstatutory Option shall not be less than eighty-five percent (85%) of the Fair Market Value of a Share on the date of grant. Subject to the preceding two sentences, the Exercise Price under any Option shall be determined by the Committee in its sole discretion. The Exercise Price shall be payable in a form described in Section 8. (d) Withholding Taxes. As a condition to the exercise of an Option, the Optionee shall make such arrangements as the Committee may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with such exercise. The Optionee shall also make such arrangements as the Committee may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with the disposition of Shares acquired by exercising an Option. (e) Exercisability. Each Stock Option Agreement shall specify the date when all or any installment of the Option is to become exercisable. Subject to the preceding sentence, the vesting of any Option shall be determined by the Committee in its sole discretion. (f) Term. The Stock Option Agreement shall specify the term of the Option. The term shall not exceed ten (10) years from the date of grant, except as otherwise provided in Section 4(b). Subject to the preceding sentence, the Committee at its sole discretion shall determine when an Option is to expire. (g) Nontransferability. No Option shall be transferable by the Optionee other than by will or by the laws of descent and distribution or pursuant to a beneficiary designation on a form prescribed by the Company. An Option may be exercised during the lifetime of the Optionee only by him or by his guardian or legal representative. No Option or interest therein may be transferred, assigned, pledged or hypothecated by the Optionee during his lifetime, whether by operation of law or otherwise, or be made subject to execution, attachment or similar process. (h) Exercise of Options on Termination of Service. Each Stock Option Agreement shall set forth the extent to which the Optionee shall have the right to exercise the Option following termination of the Optionee's service with the Company and its Subsidiaries. Such provisions shall be determined in the sole discretion of the Committee, need not be uniform among all Options issued pursuant to the Plan, and may reflect distinctions based on the reasons for termination of employment. 5 9 (i) No Rights as a Stockholder. An Optionee, or a transferee of an Optionee, shall have no rights as a stockholder with respect to any Shares covered by an Option until the date of the issuance of a stock certificate or completed electronic transfer of ownership of such Shares. (j) Modification, Extension and Assumption of Options. Within the limitations of the Plan, the Committee may modify, extend or assume outstanding Options or may accept the cancellation of outstanding Options (whether granted by the Company or another issuer) in return for the grant of new Options for the same or a different number of Shares and at the same or a different Exercise Price. (k) Restrictions on Transfer of Shares. No Shares issued upon exercise of an Option may be sold or otherwise transferred or disposed of by the Optionee during the one hundred eighty (180) day period following the effective date of a registration statement covering securities of the Company filed under the Securities Act of 1933. Subject to the preceding sentence, any Shares issued upon exercise of an Option shall be subject to such rights of repurchase, rights of first refusal and other transfer restrictions as the Committee may determine. Such restrictions shall be set forth in the applicable Stock Option Agreement and shall apply in addition to any restrictions that may apply to holders of Shares generally. SECTION 8. Payment For Shares. (a) General Rule. The entire Exercise Price of Shares issued under the Plan shall be payable in lawful money of the United States of America at the time when such Shares are purchased, except as provided in Subsections (b), (c) and (d) below. (b) Surrender of Stock. To the extent that a Stock Option Agreement so provides, payment may be made all or in part with Shares which have already been owned by the Optionee or the Optionee's representative for any time period specified by the Committee and which are surrendered to the Company in good form for transfer. Such Shares shall be valued at their Fair Market Value on the date when the new Shares are purchased under the Plan. (c) Promissory Notes. To the extent that a Stock Option Agreement so provides, payment may be made all or in part with a full recourse promissory note executed by the Optionee. The interest rate and other terms and conditions of such note shall be determined by the Committee. The Committee may require that the Optionee pledge his or her Shares to the Company for the purpose of securing the payment of such note. In no event shall the stock certificate(s) or other indicia of ownership representing such Shares be released to the Optionee until such note is paid in full. (d) Cashless Exercise. To the extent that a Stock Option Agreement so provides and a public market for the Shares exists, payment may be made all or in part by delivery (on a form prescribed by the Committee) of an irrevocable direction to a securities broker to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of the aggregate Exercise Price. SECTION 9. Adjustment of Shares. (a) General. In the event of a subdivision of the outstanding Stock, a declaration of a dividend payable in Shares, a declaration of a dividend payable in a form other than Shares in an amount that has a material effect on the value of Shares, a combination or consolidation of the outstanding Stock into a lesser number of Shares, a recapitalization, a reclassification or a similar occurrence, the Committee shall make appropriate adjustments in one or more of (i) the number of Shares available for future grants of Options or other rights to acquire Shares under Section 5, (ii) the number of Shares covered by each outstanding Option or other right to acquire Shares or (iii) the Exercise Price of each outstanding Option or the Purchase Price of each other right to acquire Shares. 6 10 (b) Reorganizations. In the event that the Company is a party to a merger or reorganization, outstanding Options or other rights to acquire Shares shall be subject to the agreement of merger or reorganization. (c) Reservation of Rights. Except as provided in this Section 9, an Optionee or Offeree shall have no rights by reason of (i) any subdivision or consolidation of shares of stock of any class, (ii) the payment of any dividend, or (iii) any other increase or decrease in the number of shares of stock of any class. Any issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or Exercise Price of Shares subject to an Option, or the number or Purchase Price of shares subject to any other right to acquire Shares. The grant of an Option or other right to acquire Shares pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets. SECTION 10. Legal Requirements. Shares shall not be issued under the Plan unless the issuance and delivery of such Shares complies with (or is exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange on which the Company's securities may then be listed, and the Company has obtained the approval or favorable ruling from any governmental agency which the Company determines is necessary or advisable. SECTION 11. No Employment Rights. No provision of the Plan, nor any Option granted or other right to acquire Shares awarded under the Plan, shall be construed to give any person any right to become, to be treated as, or to remain an Employee. The Company and its Subsidiaries reserve the right to terminate any person's Service at any time and for any reason. SECTION 12. Duration And Amendments. (a) Term of the Plan. The Plan, as set forth herein, shall become effective on the date of its adoption by the Board of Directors, subject to the approval of the Company's stockholders. In the event that the stockholders fail to approve the Plan within twelve (12) months after its adoption by the Board of Directors, any Option grants or other right to acquire Shares already made shall be null and void, and no additional Option grants or other right to acquire Shares shall be made after such date. The Plan shall terminate automatically ten (10) years after its adoption by the Board of Directors and may be terminated on any earlier date pursuant to Subsection (b) below. (b) Right to Amend or Terminate the Plan. The Board of Directors may amend the Plan at any time and from time to time. Rights and obligations under any Option granted or other right to acquire Shares awarded before amendment of the Plan shall not be materially altered, or impaired adversely, by such amendment, except with consent of the Optionee or Offeree. An amendment of the Plan shall be subject to the approval of the Company's stockholders only to the extent required by applicable laws, regulations or rules. (c) Effect of Amendment or Termination. No Shares shall be issued or sold under the Plan after the termination thereof, except upon exercise of an Option granted prior to such termination. The termination 7 11 of the Plan, or any amendment thereof, shall not affect any Share previously issued or Option previously granted under the Plan. SECTION 13. Execution. To record the adoption of the Plan, as amended, the Company has caused its authorized officer to execute the same as of January 2, 2001. CRITICAL PATH, INC. By /s/ David Hayden ------------------------------- Its: Chairman of the Board ----------------------------- 8 EX-4.3 3 f72043ex4-3.txt EMPLOYEE STOCK PURCHASE PLAN 1 EXHIBIT 4.3 CRITICAL PATH, INC. EMPLOYEE STOCK PURCHASE PLAN 2 TABLE OF CONTENTS
Page ---- Section 1. Establishment of the Plan........................................................1 Section 2. Definitions......................................................................1 Section 3. Shares Authorized................................................................2 Section 4. Administration...................................................................2 Section 5. Eligibility and Participation....................................................2 Section 6. Participation and Purchase Periods...............................................3 Section 7. Purchase Price...................................................................3 Section 8. Employee Contributions...........................................................3 Section 9. Plan Accounts; Purchase of Shares................................................4 Section 10. Withdrawal From the Plan.........................................................4 Section 11. Effect of Termination of Employment or Death.....................................5 Section 12. Rights Not Transferable..........................................................5 Section 13. Recapitalization, Etc............................................................5 Section 14. Limitation on Stock Ownership....................................................6 Section 15. No Rights as an Employee.........................................................6 Section 16. Rights as a Shareholder..........................................................6 Section 17. Use of Funds.....................................................................6 Section 18. Amendment or Termination of the Plan.............................................6 Section 19. Governing Law....................................................................6
-i- 3 CRITICAL PATH, INC. EMPLOYEE STOCK PURCHASE PLAN Section 1. Establishment of the Plan. The Critical Path, Inc. Employee Stock Purchase Plan (the "Plan") is hereby established to provide Eligible Employees with an opportunity to purchase the Company's Common Stock so that they may increase their equity interest in and share in the success of the Company. The Plan, which provides for the purchase of stock through payroll withholding, is intended to qualify under Section 423 of the Code. Section 2. Definitions. (a) "Board of Directors" or "Board" means the Board of Directors of the Company. (b) "Code" means the Internal Revenue Code of 1986, as amended. (c) "Company" means Critical Path, Inc., a California corporation. (d) "Compensation" means the base compensation paid to a Participant during a Participation Period in cash or in kind, excluding overtime, commissions, shift differentials and other forms of compensation for work outside the regular work schedule. (e) "Date of Participation" means the first day of a Participation Period. (f) "Eligible Employee" means any Employee of a Participating Company (i) whose customary employment is for more than five months per calendar year and for more than 20 hours per week and (ii) who is an Employee at the commencement of a Participation Period. (g) "Employee" means any common-law employee of a Participating Company. (h) "Fair Market Value" shall mean (i) the closing price of a share of Stock on the principal exchange which the shares are trading on the first trading day immediately preceding the date on which the Fair Market Value is determined, or (ii) if the shares are not traded on an exchange but are traded or quoted on the Nasdaq National Market or a successor quotation system, the closing price on the Nasdaq National Market or such successor quotation system on the first trading day immediately preceding the date on which the Fair Market Value is determined, or (iii) if the shares are not traded on an exchange or quoted on the Nasdaq National Market or a successor quotation system, the fair market value of a share as determined by the Plan Administrator in good faith. Such determination shall be conclusive and binding on all persons. (i) "Participant" means an Eligible Employee who elects to participate in the Plan, as provided in Section 5 hereof. (j) "Participating Company" means the Company and such present or future Subsidiaries of the Company as the Board of Directors shall from time to time designate. -1- 4 (k) "Participation Period" means a period during which the right to purchase Stock may be granted under the Plan, as determined pursuant to Section 6. (l) "Plan Account" means the account established for each Participant pursuant to Section 9(a). (m) "Purchase Period" means a period during which contributions may be made toward the purchase of Stock under the Plan, as determined pursuant to Section 6. (n) "Purchase Price" means the price at which Participants may purchase Stock under Section 5 of the Plan, as determined pursuant to Section 7. (o) "Stock" means the Common Stock of the Company. (p) "Subsidiary" means a subsidiary corporation as defined in Section 424 of the Code. Section 3. Shares Authorized. The maximum aggregate number of shares which may be offered under the Plan shall be 600,000 (post 2.2:1 reverse stock split effective in March 1999) shares of Stock, plus an additional number of shares each January 1 equal to 1% of the Company's issued and outstanding Stock, up to a maximum of 1,000,000 (post 2.2:1 reverse stock split effective in March 1999) additional shares of Stock, all of which numbers are subject to adjustment as provided in Section 13 hereof. Section 4. Administration. (a) The Plan shall be administered by a Plan Administrator appointed by the Board of Directors. In the absence of such an appointment, the full Board of Directors shall serve as the Plan Administrator. The interpretation and construction by the Plan Administrator of any provision of the Plan or of any right to purchase stock qualified hereunder shall be conclusive and binding on all persons. (b) All costs and expenses incurred in administering the Plan shall be paid by the Company. The Board or the Plan Administrator may request advice for assistance or employ such other persons as are necessary for proper administration of the Plan. A Participant who withdraws from the Plan in accordance with Section 10 may again become a Participant, if he or she then is an Eligible Employee, by following the procedure described in Section 5(a). Section 5. Eligibility and Participation. (a) Any person who qualifies or will qualify as an Eligible Employee on the Date of Participation with respect to a Participation Period may elect to participate in the Plan for such Participation Period. An Eligible Employee may elect to participate by executing the participation agreement prescribed for such purpose by the Plan Administrator. The participation agreement shall be filed with the Plan Administrator no later than the deadline stated on the participation agreement, and if none is stated, then no later than the first day of the Participation Period. The Eligible Employee shall designate on the participation agreement the percentage of -2- 5 his or her Compensation which he or she elects to have withheld for the purchase of Stock, which may be any whole percentage of the Participant's Compensation or fixed dollar amount specified by the Plan Administrator. (b) By enrolling in the Plan, a Participant shall be deemed to have elected to purchase the maximum number of whole shares of Stock which can be purchased with the amount of the Participant's Compensation which is withheld during the Purchase Period, subject to any limitations imposed by the Plan Administrator pursuant to Section 6, and/or Section 14. (c) Once enrolled, a Participant will continue to participate in the Plan for each succeeding Purchase Period until he or she terminates participation or ceases to qualify as an Eligible Employee. A Participant who withdraws from the Plan in accordance with Section 10 may again become a Participant, if he or she then is an Eligible Employee, by following the procedure described in Section 5(a). Section 6. Participation and Purchase Periods. The Plan shall be implemented by one or more Participation Periods of not more than twenty-seven (27) months each. The Plan Administrator shall determine the commencement date and duration of each Participation Period, the number and duration of Purchase Periods within a Participation Period, the purchase dates, and the maximum number of shares that may be purchased by a Participant during the Participation Period. Section 7. Purchase Price. The Purchase Price for each share of Stock shall be the lesser of (i) eighty-five percent (85%) of the Fair Market Value of such share on the Date of Participation or (ii) eighty-five percent (85%) of the Fair Market Value of such share on the last trading day prior to the applicable purchase date. Section 8. Employee Contributions. A Participant may purchase shares of Stock solely by means of payroll deductions. Payroll deductions, as designated by the Participant pursuant to Section 5(a), shall commence with the first paycheck issued during the Participation Period and shall be deducted from each subsequent paycheck throughout the Participation Period. If a Participant desires to decrease the rate of payroll withholding during the Participation Period, he or she may do so, if permitted by the Plan Administrator, by filing a new participation agreement with the Plan Administrator. Such decrease will be effective as of the date prescribed by the Company following the receipt of the new participation agreement. If a Participant desires to increase the rate of payroll withholding, he or she may do so effective for the next Participation Period by filing a new participation agreement with the Plan Administrator on or before the date specified by the Plan Administrator, and if none is stated, then no later than the first day of the Participation Period for which such change is to be effective. -3- 6 Section 9. Plan Accounts; Purchase of Shares. (a) The Company will maintain a non-interest bearing Plan Account on its books in the name of each Participant. At the close of each pay period, the amount deducted from the Participant's Compensation will be credited to the Participant's Plan Account. (b) As of the last day of each Purchase Period, the amount then in the Participant's Plan Account will be divided by the Purchase Price, and the number of whole shares which results (subject to the limitations described in Sections 5(b), 9(c) and 14) shall be purchased from the Company with the funds in the Participant's Plan Account. Following the purchase of the shares, the shares will be electronically delivered to a brokerage account for the benefit of the Participant, unless the Participant elects that certificates for the shares shall be delivered to the Participant as provided in the election form prescribed by the Company. (c) In the event that the aggregate number of shares which all Participants elect to purchase during a Purchase Period shall exceed the number of shares remaining available for issuance under the Plan, then the number of shares to which each Participant shall become entitled shall be determined by multiplying the number of shares available for issuance by a fraction the numerator of which is the sum of the number of shares the Participant has elected to purchase pursuant to Section 5, and the denominator of which is the sum of the number of shares which all employees have elected to purchase pursuant to Section 5. Any cash amount remaining in the Participant's Plan Account under these circumstances shall be refunded to the Participant. (d) Any amount remaining in the Participant's Plan Account caused by a surplus due to fractional shares after deducting the amount of the Purchase Price for the number of whole shares issued to the Participant shall be carried over in the Participant's Plan Account for the succeeding Purchase Period, without interest. Any amount remaining in the Participant's Plan Account caused by anything other than a surplus due to fractional shares shall be refunded to the Participant in cash, without interest. (e) As soon as practicable following the end of each Purchase Period, the Company shall deliver to each Participant a Plan Account statement setting forth the amount of payroll deductions, the purchase price, the number of shares purchased and the remaining cash balance, if any. Section 10. Withdrawal From the Plan. A Participant may elect to withdraw from participation under the Plan at any time up to the 15th day of the last month of a Purchase Period by filing the prescribed form with the Plan Administrator. As soon as practicable after a withdrawal, payroll deductions shall cease and all amounts credited to the Participant's Plan Account will be refunded in cash, without interest. A Participant who has withdrawn from the Plan shall not be a Participant in future Participation Periods, unless he or she again enrolls in accordance with the provisions of Section 5. -4- 7 Section 11. Effect of Termination of Employment or Death. (a) Termination of employment as an Eligible Employee for any reason, including death, shall be treated as an automatic withdrawal from the Plan under Section 10. A transfer from one Participating Company to another shall not be treated as a termination of employment. (b) A Participant may file a written designation of a beneficiary who is to receive any shares and cash, if any, from the Participant's Account under the Plan in the event of such Participant's death subsequent to the purchase of shares but prior to delivery to him of such shares and cash. In addition, a Participant may file a written designation of a beneficiary who is to receive any cash from the Participant's Account under the Plan in the event of such Participant's death prior to the last day of a Participation Period. (c) Such designation of beneficiary may be changed by the Participant at any time by written notice. In the event of the death of a Participant in the absence of a valid designation of a beneficiary who is living at the time of such Participant's death, the Company shall deliver such shares and/or cash to the executor or administrator of the estate of the Participant; or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such shares and/or cash to the spouse or to any one or more dependents or relatives of the Participant; or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate. Section 12. Rights Not Transferable. The rights or interests of any Participant in the Plan, or in any Stock or moneys to which he or she may be entitled under the Plan, shall not be transferable by voluntary or involuntary assignment or by operation of law, or by any other manner other than as permitted by the Code or by will or the laws of descent and distribution. If a Participant in any manner attempts to transfer, assign or otherwise encumber his or her rights or interest under the Plan, other than as permitted by the Code or by will or the laws of descent and distribution, such act shall be treated as an automatic withdrawal under Section 10. Section 13. Recapitalization, Etc. (a) The aggregate number of shares of Stock offered under the Plan, the number and price of shares which any Participant has elected to purchase pursuant to Section 5 and the maximum number of shares which a Participant may elect to purchase under the Plan in any Participation Period shall be proportionately adjusted for any increase or decrease in the number of issued shares of Stock resulting from a subdivision or consolidation of shares or any other capital adjustment, the payment of a stock dividend, or other increase or decrease in such shares effected without receipt of consideration by the Company. (b) In the event of a dissolution or liquidation of the Company, or a merger or consolidation to which the Company is a constituent corporation, this Plan shall terminate, unless the plan of merger, consolidation or reorganization provides otherwise, and all amounts which each Participant has paid towards the Purchase Price of Stock hereunder shall be refunded, without interest. -5- 8 (c) The Plan shall in no event be construed to restrict in any way the Company's right to undertake a dissolution, liquidation, merger, consolidation or other reorganization. Section 14. Limitation on Stock Ownership. Notwithstanding any provision herein to the contrary, no Participant shall be permitted to elect to participate in the Plan (i) if such Participant, immediately after his or her election to participate, would own stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or any parent or Subsidiary of the Company, or (ii) if under the terms of the Plan the rights of the Employee to purchase Stock under this Plan and all other qualified employee stock purchase plans of the Company or its Subsidiaries would accrue at a rate which exceeds twenty-five thousand dollars ($25,000) of the Fair Market Value of such Stock (determined at the time such right is granted) for each calendar year for which such right is outstanding at any time. For purposes of this Section 14, ownership of stock shall be determined by the attribution rules of Section 424(d) of the Code, and Participants shall be considered to own any stock which they have a right to purchase under this or any other stock plan. Section 15. No Rights as an Employee. Nothing in the Plan shall be construed to give any person the right to remain in the employ of a Participating Company. Each Participating Company reserves the right to terminate the employment of any person at any time and for any reason. Section 16. Rights as a Shareholder. A Participant shall have no rights as a shareholder with respect to any shares he or she may have a right to purchase under the Plan until the date such shares are actually purchased for the Participant's account, subject to the shareholders' approval of the adoption of the Plan. Section 17. Use of Funds. All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions in separate accounts. Section 18. Amendment or Termination of the Plan. The Board of Directors shall have the right to amend, modify or terminate the Plan at any time without notice. An amendment of the Plan shall be subject to shareholder approval only to the extent required by applicable laws, regulations or rules. Section 19. Governing Law. The Plan shall be governed by, and construed and interpreted in accordance with, the laws of the State of California. -6- EX-5.1 4 f72043ex5-1.txt OPINION OF PILLSBURY WINTHROP LLP 1 Exhibit 5.1 [Letterhead of Pillsbury Winthrop LLP] June 15, 2001 Critical Path, Inc. 532 Folsom Street San Francisco, California 94105 Re: Registration Statement on Form S-8 Ladies and Gentlemen: With reference to the Registration Statement on Form S-8 to be filed by Critical Path, Inc., a California corporation (the "Company"), with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to 16,741,348 shares of the Company's Common Stock (the "Shares") issuable pursuant to the Amended and Restated 1998 Stock Plan, 1999 Stock Option Plan and 1999 Employee Stock Purchase Plan (the "Plans"), it is our opinion that the Shares have been duly authorized and, when issued and sold in accordance with the Plans, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Securities and Exchange Commission as Exhibit 5.1 to the Registration Statement. Very truly yours, /s/ PILLSBURY WINTHROP LLP EX-23.1 5 f72043ex23-1.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated April 4, 2001 relating to the financial statements and financial statement schedule of Critical Path, Inc., which appears in Critical Path's Annual Report on Form 10-K for the year ended December 31, 2000. /s/ PricewaterhouseCoopers LLP San Francisco, California June 12, 2001 -----END PRIVACY-ENHANCED MESSAGE-----