1
Exhibit 3.5
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACCELGRAPHICS, INC.
The following Amended and Restated Certificate of Incorporation of
AccelGraphics, Inc. amends and restates the provisions of and supersedes the
Amended and Restated Certificate of Incorporation filed with the Secretary of
State of the State of Delaware on March ____, 1997 in its entirety.
FIRST: The name of this corporation is AccelGraphics, Inc. (the
"corporation").
SECOND: The address of the corporation's registered office in the
State of Delaware is The Corporation Service Company, 1013 Centre Road, County
of New Castle, Wilmington, Delaware 19805. The name of its registered agent at
such address is The Corporation Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: (A) This corporation is authorized to issue 52,000,000
shares of its capital stock, which shall be divided into two classes known as
Common Stock and Preferred Stock, respectively.
(B) The total number of shares of Common Stock
which this corporation is authorized to issue is 50,000,000 with a par value of
$0.001 per share. The total number of shares of Preferred Stock which this
corporation is authorized to issue is 2,000,000 with a 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 this corporation is hereby authorized,
within the limitations and restrictions prescribed by law or stated in this
Certificate of Incorporation, and by filing a certificate pursuant to
applicable law of the State of Delaware, to provide for the issuance of
Preferred Stock in series and (i) to establish from time to time the number of
shares to be included in each such series; (ii) to fix the voting powers,
designations, powers, preferences and relative, participating, optional or
other rights of the shares of each such series and the qualifications,
limitations or restrictions thereof, including but not limited to, the fixing
or alteration of the dividend rights, dividend rate, conversion rights,
conversion rates, voting rights, rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preferences of any wholly unissued series of shares of Preferred Stock; and
(iii) to increase or decrease the number of shares of any series subsequent to
the issue of shares of that series, but not below the number of shares of such
series then outstanding.
2
In case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
FIFTH: In furtherance and not in limitation of powers conferred by
statute, the Board of Directors of the corporation is expressly authorized to
make, alter or repeal Bylaws of the corporation.
SIXTH: No action shall be taken by the stockholders of the
corporation other than at an annual or special meeting of the stockholders,
upon due notice and in accordance with the provisions of the corporation's
Bylaws.
SEVENTH: Elections of directors need not be by written ballot unless
otherwise provided in the Bylaws of the corporation.
EIGHTH: (A) To the fullest extent permitted by the Delaware
General Corporation Law, as the same exists or as may hereafter be amended, 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.
(B) The corporation shall indemnify to the
fullest extent permitted by law any person made or threatened to be made a
party to an action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he, his testator or intestate is or
was a director, officer or employee of the corporation or any predecessor of
the corporation, or serves or served at any other enterprise as a director,
officer or employee at the request of the corporation or any predecessor to the
corporation.
(C) Neither any amendment nor repeal of this
Article EIGHTH, nor the adoption of any provision of this corporation's
Certificate of Incorporation inconsistent with this Article EIGHTH shall
eliminate or reduce the effect of this Article EIGHTH in respect of any matter
occurring, or any action or proceeding accruing or arising or that, but for
this Article EIGHTH, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
NINTH: The corporation is to have perpetual existence.
TENTH: The number of directors which will constitute the whole Board
of Directors of the corporation shall be designated in the Bylaws of the
corporation.
ELEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the corporation may
be kept (subject to any statutory provision) outside the State of Delaware at
such place or places as may be designated from time to time by the Board of
Directors in the Bylaws of the corporation.
2
3
TWELFTH: "Exempt from Section 2115 of the California Corporations
Code" as used in this Amended and Restated Certificate of Incorporation shall
mean such time when the corporation has outstanding securities listed on the
New York Stock Exchange or the American Stock Exchange or has outstanding
securities designated as qualified for trading as a national market security on
the National Association of Securities Dealers Automatic Quotation System (or
such successor national market system) and when the corporation has at least
800 holders of its equity securities. For the management of the business and
for the conduct of the affairs of the corporation, and in further definition,
limitation and regulation of the powers of the corporation, its directors and
its stockholders or any class thereof, as the case may be, it is further
provided that, effective on the record date of the first annual meeting of
stockholders when the Company is Exempt from Section 2115 of the California
Corporations Code:
(A) The Board of Directors of the corporation shall
divide the directors into three classes, as nearly equal in number as
reasonably possible with the term of office of the first class to expire at the
1998 annual meeting of stockholders or any special meeting in lieu thereof (or
the next consecutive annual meeting of stockholders when the Company is Exempt
from Section 2115 of the California Corporations Code), the term of office of
the second class to expire at the 1999 annual meeting of stockholders or any
special meeting in lieu thereof (or the next consecutive annual meeting of
stockholders when the Company is Exempt from Section 2115 of the California
Corporations Code) and the term of office of the third class to expire at the
2000 annual meeting of stockholders or any special meeting in lieu thereof (or
the next consecutive annual meeting of stockholders when the Company is Exempt
from Section 2115 of the California Corporations Code). At each annual meeting
of stockholders or special meeting in lieu thereof following such initial
classification, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders or special meeting in lieu thereof after their election
and until their successors are duly elected and qualified.
(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, retirement,
disqualification, removal from office or other cause may be filled only by a
majority vote of the directors then in office even though less than a quorum,
or by a sole remaining director. In the event of any increase or decrease in
the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as a director of the class of which he or she is a
member until the expiration of his or her current term or his or her prior
death, retirement, removal or resignation and (ii) the newly created or
eliminated directorships resulting from such increase or decrease shall if
reasonably possible be apportioned by the Board of Directors among the three
classes of directors so as to ensure that no one class has more than one
director more than any other class. To the extent reasonably possible,
consistent with the foregoing rule, any newly created directorships shall be
added to those classes whose terms of office are to expire at the latest dates
following such allocation and newly eliminated directorships
3
4
shall be subtracted from those classes whose terms of office are to expire at
the earliest dates following such allocation, unless otherwise provided for
from time to time by resolution adopted by a majority of the directors then in
office, although less than a quorum. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board of Directors until the vacancy is filled.
Notwithstanding the foregoing provisions of this Article TWELFTH, each director
shall serve until his or her successor is duly elected and qualified or until
his or her death, resignation, or removal. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
(C) There shall be no right with respect to shares of
stock of the corporation to cumulate votes in the election of directors.
The foregoing Amended and Restated Certificate of Incorporation has
been duly adopted by the stockholders of the corporation in accordance with the
provisions of Sections 242 and 245 of the General Corporate Law of the State of
Delaware, as amended.
4
5
IN WITNESS WHEREOF, the undersigned have executed this certificate on
______ ___, 1997.
_______________________________________
Jeffrey W. Dunn, President and
Chief Executive Officer
_______________________________________
Michael W. Hall, Secretary
The undersigned certify under penalty of perjury that they have read
the foregoing Amended and Restated Certificate of Incorporation and know the
contents thereof, and that the statements therein are true.
Executed at San Jose, California on _______ ___, 1997.
_______________________________________
Jeffrey W. Dunn, President and
Chief Executive Officer
_______________________________________
Michael W. Hall, Secretary
5