EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
C-CUBE MICROSYSTEMS INC.
(Pursuant to Section 245 of General Corporation Law of the State of Delaware)
C-Cube Microsystems Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware, which was originally
incorporated in Delaware under the name C-Cube Microsystems Delaware Corporation
on February 8, 1994, (the "Corporation") certifies as follows:
1. The Corporation's Restated Certificate of Incorporation was duly
adopted by the Board of Directors at a regular meeting in accordance with
Section 245 of the Corporation Law.
2. The Corporation's Restated Certificate of Incorporation only restates
and integrates and does not further amend the provisions of the Corporation's
Certificate of Incorporation as theretofore amended or supplemented, and there
is no discrepancy between those provisions and the provisions of the Restated
Certificate.
3. The Corporation's Certificate of Incorporation is restated to read in
full as follows:
FIRST: The name of the Corporation is C-Cube Microsystems Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Incorporating Services, Ltd., 15 East North
Street, in the City of Dover, County of Kent. The name of the
registered agent at that address is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the
General Corporation Law of Delaware.
FOURTH:
A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred Fifty
Five Million (155,000,000), which consists of 150,000,000 shares
of Common Stock with par value of $.001 per share and 5,000,000
shares of Preferred Stock with par value of $.001 per share.
B. The Preferred shares authorized by this Certificate of
Incorporation may be issued from time to time in one or more
series. The Board of Directors is authorized to determine, alter
or eliminate any or all of the rights, preferences, privileges
and restrictions granted to or imposed upon any wholly unissued
series of Preferred shares, and to fix, increase or decrease the
number of shares comprising any such series and the designation
thereof, or any of them, and to provide for the rights and terms
of redemption or conversion of the shares of any such series.
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 By-Laws 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 By-Laws so provide.
C. On and after the closing date of the first sale of the
Corporation's Common Stock pursuant to a firmly underwritten
registered public offering (the "IPO"), any action required or
permitted to be taken by the stockholders of the Corporation must
be effected at a duty called annual or special meeting of
stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders. Prior to such sale,
unless otherwise provided by law, any action which may otherwise
be taken at any meeting of the stockholders may be taken without
a meeting and without prior notice, if a written consent
describing such actions 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.
D. Special meetings of stockholders of the Corporation may be called
only (1) 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 for adoption) or (2) by the holders of not
less than ten percent (10%) of all of the shares entitled to cast
votes at the meeting.
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SIXTH:
A. The number of directors shall initially be eight (8) 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 for
adoption). After the closing of the IPO, the directors shall be
divided into three classes, with the term of office of the first
class (Class I) to expire at the first annual meeting of the
stockholders following the IPO; the term of office of the
second class (Class II) to expire at the second annual meeting of
stockholders held following the IPO; the term of office of the
third class (Class III) to expire at the third annual meeting of
stockholders following the IPO; and thereafter for each such term
to expire at each third succeeding annual meeting of stockholders
after such election. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, a vacancy resulting
from the removal of a director by the stockholders as provided in
Article SIXTH, Section C below may be filled at a special meeting
of the stockholders held for that purpose. 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 (other than 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, 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. No decrease
in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent 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, with or
without cause, but 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. Vacancies in the Board of Directors resulting
from such removal may be filled by a majority of the directors
then in office, though less than a quorum, or by the stockholders
as provided in Article SIXTH, Section A above. Directors so
chosen shall
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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.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
repeal By-Laws of the Corporation. Any adoption, amendment or
repeal of By-Laws of the Corporation by the Board of Directors
shall require the approval of a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the
Board). The stockholders shall also have power to adopt, amend
or repeal the By-Laws of the Corporation. Any adoption,
amendment or repeal of By-Laws 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.
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
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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.
TENTH: The name and mailing address of the incorporator is:
Andrea Charvet
Gray Cary Ware & Freidenrich
400 Hamilton Avenue
Palo Alto, California 94301
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate to
be signed and attested by its duly authorized officers on this 18th day of
April, 1996.
C-CUBE MICROSYSTEMS INC.
By: /s/ ALEXANDRE A. BALKANSKI
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Alexandre A. Balkanski, President
ATTEST:
/s/ JAMES G. BURKE
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James G. Burke, Secretary
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