EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
SONIC INNOVATIONS, INC.
(Adopted Upon Effectiveness of the Company's Initial Public Offering)
(Stockholder Consent Still Required for Adoption)
Sonic Innovations, Inc., a Delaware corporation, hereby certifies as
follows:
The original Certificate of Incorporation for Sonic Innovations, Inc. (the
"Company") was filed in the office of the Secretary of State of the State of
Delaware on November 7, 1997 under the name SONIX TECHNOLOGIES, INC. All
amendments to the Certificate of Incorporation reflected herein have been duly
authorized and adopted by the Company's Board of Directors and stockholders in
accordance with the provisions of Sections 242 and 245 of the Delaware General
Corporation Law.
This Amended and Restated Certificate of Incorporation restates and
integrates and amends the Certificate of Incorporation of the Company. The text
of the Certificate of Incorporation is amended hereby to read as herein set
forth in full:
ARTICLE I
The name of the corporation is Sonic Innovations, Inc.
ARTICLE II
The nature of the business or purpose to be conducted or promoted by the
corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
ARTICLE III
The corporation shall have authority to issue shares as follows:
Seventy million (70,000,000) shares of common stock, par value $0.001 per
share. Each share of common stock shall entitle the holder thereof to one (1)
vote on each matter submitted to a vote at a meeting of shareholders.
Five million (5,000,000) shares of Preferred Stock, par value $0.001 per
share which may be issued from time to time in one or more series. The Board of
Directors is hereby authorized, subject to limitations prescribed by law, to fix
by resolution or resolutions the designations, powers, preferences and rights,
and the qualifications, limitations or restrictions thereof, of any wholly
unissued series of Preferred Stock, including without limitation authority to
fix by resolution or resolutions the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and liquidation
preferences of any such series, and the number of shares constituting any such
series and the designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but not below the
number of shares of any such series then outstanding) the number of shares of
any series, the number of which was fixed by it, subsequent to the issuance of
shares of such series then outstanding, subject to the powers, preferences and
rights, and the qualifications, limitations and restrictions thereof stated in
the Certificate of Incorporation or the resolution of the Board of Directors
originally fixing the number of shares of such series. If the number of shares
of any series is so decreased, then 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.
ARTICLE IV
The number of directors which constitute the entire Board of Directors of
the corporation shall be as specified in the Bylaws of the corporation. At each
annual meeting of stockholders, directors of the corporation shall be elected to
hold office until the expiration of the term for which they are elected and
until their successors have been duly elected and qualified; except that if any
such election shall not be so held, such election shall take place at a
stockholders' meeting called and held in accordance with the General Corporation
Law.
The directors of the corporation shall be divided into three classes as
nearly equal in size as is practicable, hereby designated Class I, Class II and
Class III. The term of office of the initial Class I directors shall expire at
the first regularly-scheduled annual meeting of the stockholders following the
effective date of this corporation's initial public offering (the "Effective
Date"), the term of office of the initial Class II directors shall expire at the
second annual meeting of the stockholders following the Effective Date and the
term of office of the initial Class III directors shall expire at the third
annual meeting of the stockholders following the Effective Date. At each annual
meeting of stockholders, commencing with the first regularly-scheduled annual
meeting of stockholders following the Effective Date, each of the successors
elected to replace the directors of a Class whose term shall have expired at
such annual meeting shall be elected to hold office until the third annual
meeting next succeeding his or her election and until his or her respective
successor shall have been duly elected and qualified.
If the number of directors is hereafter changed, any newly created
directorships or decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal in number as is practicable,
provided that no decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
Any director may be removed from office by the stockholders of the
corporation only for cause. Vacancies occurring on the Board of Directors for
any reason and newly created directorships resulting from an increase in the
authorized number of directors may be filled only by vote of a majority of the
remaining members of the Board of Directors, although less than a quorum, at any
meeting of the Board of Directors. A person so elected by the Board of
Directors to fill a vacancy or
newly created directorship shall hold office until the next election of the
Class for which such director shall have been chosen and until his or her
successor shall have been duly elected and qualified.
ARTICLE V
The address of the corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, zip code 19801. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE VI
The corporation is to have perpetual existence.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the corporation.
ARTICLE VIII
The election of directors need not be by written ballot unless the Bylaws
of the corporation shall so provide.
ARTICLE IX
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 provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the corporation.
ARTICLE X
No action shall be taken by the stockholders of the Corporation except at
an annual or special meeting of the stockholders called in accordance with the
Bylaws and no action shall be taken by the stockholders by written consent.
ARTICLE XI
To the fullest extent permitted by the Delaware General Corporation Law or
any other applicable law as now in effect or as it may hereafter be amended, a
director of the corporation shall not be personally liable to the corporation or
its shareholders for monetary damages for any action taken, or any failure to
take any action, as a director.
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
or she or his or her testator or intestate is or was a director or officer of
the corporation or any predecessor of the corporation or serves or served any
other
enterprise as a director, officer, employee or agent at the request of the
corporation or any predecessor to the corporation.
Neither any amendment nor repeal of this Article XI, nor the adoption of
any provision of this corporation's Certificate of Incorporation inconsistent
with this Article XI, shall eliminate or reduce the effect of this Article XI in
respect of any matter occurring, or any cause of action, suit or claim accruing
or arising or that, but for this Article XI, would accrue or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.
ARTICLE XII
Except as provided in Article XI above, the corporation reserves the right
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
IN WITNESS WHEREOF, the Company has caused this Certificate to be signed by
Andrew G. Raguskus, the President of the Company, and attested by ____________,
the Assistant Secretary of the Corporation. The signatures below shall
constitute the affirmation or acknowledgment, under penalties of perjury, that
the facts herein stated are true.
Dated: ______________, 1999
________________________________
Andrew G. Raguskus
President
ATTEST:
___________________________________
___________________
Assistant Secretary