EXHIBIT 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
INTERVIDEO, INC.
InterVideo, Inc. a corporation organized and existing under the laws of
the State of Delaware, hereby certifies as follows:
A. The corporation was originally incorporated under the name of
InterVideo, Inc. and the original Certificate of Incorporation of the
corporation was filed with the Secretary of State of the State of Delaware on
January 15, 2002.
B. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware (the "DGCL"), this Amended and Restated Certificate of
Incorporation restates and amends the provisions of the Amended and Restated
Certificate of Incorporation of the corporation.
C. This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors of the corporation in accordance with
Sections 242 and 245 of the DGCL.
D. This Amended and Restated Certificate of Incorporation has been duly
approved by the written consent of the stockholders of the corporation in
accordance with Sections 228, 242 and 245 of the DGCL.
E. The Certificate of Incorporation of the corporation is hereby
amended and restated in its entirety to read as follows:
ARTICLE I
The name of the corporation is InterVideo, Inc.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
ARTICLE IV
The corporation shall have authority to issue shares as follows:
150,000,000 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 stockholders.
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 pursuant to a resolution
or resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board of Directors).
The Board of Directors is further 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 V
The number of directors that constitutes the entire Board of Directors
of the corporation shall be determined in the manner set forth 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 DGCL.
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 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 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.
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Notwithstanding the foregoing provisions of this Article, each director
shall serve until his or her successor is duly elected and qualified or until
his or her death, resignation, or removal. 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 by vote of a majority of the
remaining members of the Board of Directors, although less than a quorum, or by
a sole remaining director. 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 VI
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the corporation is expressly authorized to
adopt, amend or repeal the Bylaws of the corporation.
ARTICLE VII
The election of directors need not be by written ballot unless the
Bylaws of the corporation shall so provide.
ARTICLE VIII
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 IX
To the fullest extent permitted by the General Corporation Law of
Delaware or any other applicable law as the same exists or may hereafter be
amended, a director of the corporation shall not be personally liable to the
corporation or its stockholders and shall otherwise be indemnified by the
corporation 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 at any other enterprise as a director, officer, employee or agent at the
request of the corporation or any predecessor to the corporation. To the fullest
extent permitted by applicable law, the corporation is authorized to provide
indemnification of, and advancement of expenses to, directors, officers,
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employees, other agents of the corporation and any other persons to which the
General Corporation Law of Delaware permits the corporation to provide
indemnification.
Neither any amendment nor repeal of this Article IX, nor the adoption
of any provision of this corporation's Certificate of Incorporation inconsistent
with this Article IX, shall eliminate or reduce the effect of this Article IX in
respect of any matter occurring, or any cause of action, suit or claim accruing
or arising or that, but for this Article IX, would accrue or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.
ARTICLE X
Except as provided in Article IX 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.
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IN WITNESS WHEREOF, InterVideo, Inc. has caused this Amended and
Restated Certificate of Incorporation to be signed by the President and Chief
Executive Officer of the corporation on this ____ day of _________, 2002.
By:
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Steve Ro
President and Chief Executive Officer
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