<PAGE> 1
EXHIBIT 3.4
SEVENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VIRAGE, INC.
Pursuant to Sections 242 and 245
of the General Corporation Law of
the State of Delaware
Virage, Inc. (hereinafter called the "Corporation"), organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify as follows:
At a meeting of the Board of Directors of the Corporation, a resolution
was duly adopted, pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, setting forth a Seventh Amended and Restated
Certificate of Incorporation of the Corporation and declaring said Seventh
Amended and Restated Certificate of Incorporation to be advisable. The
stockholders of the Corporation duly approved said proposed Seventh Amended and
Restated Certificate of Incorporation by written consent in accordance with
Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware, and written notice of such consent has been given to all stockholders
who have not consented in writing to said amendment. The resolution setting
forth the Seventh Amended and Restated Certificate of Incorporation is as
follows:
RESOLVED: That this Certificate of Incorporation, which was originally filed
with the Secretary of State of the State of Delaware on March 9, 1995, be and
hereby is amended and restated in its entirety so that the same shall read as
follows:
FIRST: The name of the Corporation is Virage, Inc.
SECOND: The address of its registered office in the State of Delaware is 15
East North Street in the City of Dover, County of Kent. The name of
its registered agent at such address is Incorporating Services, Ltd.
THIRD: The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
<PAGE> 2
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is (i) 100,000,000 shares
of Common Stock, $0.001 par value per share ("Common Stock"), and
(ii) 2,000,000 shares of Preferred Stock, $0.001 par value per share
("Preferred Stock"). The Board of Directors is authorized, subject
to any limitations prescribed by law, to provide for the issuance of
shares of Preferred Stock in series and, by filing a certificate
pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in
each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and any qualifications,
limitations or restrictions thereon. The number of authorized shares
of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote
of the holders of a majority of the Common Stock without a vote of
the holders of the Preferred Stock, or of any series thereof, unless
a vote of any such holders is required pursuant to the certificate
or certificates establishing the series of Preferred Stock.
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:
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 Bylaws 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.
The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
Effective upon the closing of the Corporation's initial public
offering of its common stock, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a
duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing by
such stockholders. At all times prior to the closing of the
Corporation's initial public offering of its common stock, any
action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting and without prior
notice, if a consent in writing, setting forth the actions so taken,
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. All such consents shall be filed
with the Secretary of the Corporation and shall be maintained in the
corporate records. Prompt notice of the taking of a corporate action
without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
Special meetings of stockholders of the Corporation may be called
only by either the Board of Directors, the Chairman of the Board of
Directors or the President and Chief Executive Officer.
SIXTH: The number of directors shall initially be seven (7) 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 of Directors for
adoption). Effective upon the closing of the closing of the
Corporation's initial public offering of its common stock, the Board
of Directors shall be divided into three classes with the term of
office of the first class to expire at the first annual meeting of
the stockholders following the Effective Date, the term of office of
the second class to expire at the second annual meeting of
stockholders held following the Effective Date, the term of office
of the third class to expire at the third annual
<PAGE> 3
meeting of stockholders following the Effective Date, and thereafter
for each such term to expire at each third succeeding annual meeting
of stockholders after such election. 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.
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 (including 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, or by the sole remaining
director, 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.
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, but only for
cause and 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.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. The stockholders shall also have
power to adopt, amend or repeal the Bylaws of the Corporation. Any
adoption, amendment or repeal of Bylaws 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 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,
<PAGE> 4
shall be required to amend or repeal this Article NINTH, Article
FIFTH, Article SIXTH, Article SEVENTH or Article EIGHTH.
[THE REST OF THIS PAGE LEFT INTENTIONALLY BLANK]
<PAGE> 5
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Seventh Amended and Restated Certificate of
Incorporation to be signed by its President and attested by its Secretary this
5th day of July, 2000.
VIRAGE, INC.
By: /s/ Paul Lego
--------------------------------
Paul Lego, President
ATTEST:
/s/ Frank Pao
-------------------------------------
Frank Pao, Secretary
