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Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
At Road, Inc.
The undersigned, Krish Panu and Tae Hea Nahm, hereby certify that:
1. They are the duly elected President and Secretary, respectively,
of At Road, Inc., a Delaware corporation.
2. The Certificate of Incorporation of this corporation was
originally filed with the Secretary of State of Delaware on February 17, 2000.
3. As of the date hereof, At Road, Inc. has issued 1,000 shares of
Common Stock and has received payment therefor, and the directors of At Road,
Inc. are Krish Panu, Rodric Fan, Kris Chellam, Stuart Phillips, Andrew Sheehan,
and T. Peter Thomas.
4. The Certificate of Incorporation of this corporation shall be
amended and restated to read in full as follows:
"ARTICLE I
The name of this corporation is At Road, Inc. (the "Corporation").
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ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Company, 1209 Orange Street, in the City of
Wilmington, County of New Castle. 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 General Corporation Law of
Delaware.
ARTICLE IV
(A) Classes of Stock. The Corporation is authorized to issue two classes
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of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
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The total number of shares which the Corporation is authorized to issue is
Seventy-Nine Million Seven Hundred Eighty-Nine Thousand Eight Hundred Seventy-
Nine (79,789,879) shares, each with a par value of
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$0.0001 per share. Forty-Nine Million (49,000,000) shares shall be Common Stock
and Thirty Million Seven Hundred Eighty-Nine Thousand Eight Hundred Seventy-Nine
(30,789,879) shares shall be Preferred Stock.
(B) Rights, Preferences and Restrictions of Preferred Stock. The Preferred
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Stock authorized by this Amended and Restated Certificate of Incorporation may
be issued from time to time in one or more series. The first series of
Preferred Stock shall be designated "Series A Preferred Stock" and shall consist
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of Three Million Seven Hundred Fifty Thousand (3,750,000) shares. The second
series of Preferred Stock shall be designated "Series B Preferred Stock" and
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shall consist of Twelve Million Four Hundred Thirteen Thousand Seven Hundred
Ninety-Three (12,413,793) shares. The third series of Preferred Stock shall be
designated "Series C Preferred Stock" and shall consist of Six Million Nine
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Hundred Fifty-Six Thousand Four Hundred (6,956,400) shares. The fourth series
of Preferred Stock shall be designated "Series D Preferred Stock" and shall
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consist of Three Million Six Hundred Sixty-Nine Thousand Six Hundred Eighty-Six
(3,669,686) shares. The fifth series of Preferred Stock shall be designated
"Series E Preferred Stock" and shall consist of Three Million (3,000,000)
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shares. The sixth series of Preferred Stock shall be designated "Series E-1
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Preferred Stock" and shall consist of One Million (1,000,000) shares. The
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rights, preferences, privileges, and restrictions granted to and imposed on the
Series A, Series B, Series C, Series D, Series E and Series E-1 Preferred Stock
are as set forth below in this Article IV(B). The rights, preferences,
privileges, and restrictions granted to and imposed on the Series E-1 Preferred
Stock shall be identical to those of the Series E Preferred Stock, and each
reference to the Series E Preferred Stock shall also be deemed to be a reference
to the Series E-1 Preferred Stock, except for the rights, preferences,
privileges, restrictions and references set forth in Section 5 below.
1. Dividend Provisions. Subject to the rights of series of Preferred
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Stock which may from time to time come into existence, the holders of shares of
Series A, Series B, Series C, Series D, or Series E Preferred Stock shall be
entitled to receive dividends, out of any assets legally available therefor,
prior and in preference to any declaration or payment of any dividend (payable
other than in Common Stock or other securities and rights convertible into or
entitling the holder thereof to receive, directly or indirectly, additional
shares of Common Stock of the Corporation) on the Common Stock of the
Corporation, at the rate of (a) $0.06 per share per annum on each outstanding
share of Series A Preferred Stock, (b) $0.043 per share per annum on each
outstanding share of Series B Preferred Stock, (c) $0.30 per share per annum on
each outstanding share of Series C Preferred Stock, (d) $0.78 per share per
annum on each outstanding share of Series D Preferred Stock, and (e) $0.90 per
share per annum on each outstanding share of Series E Preferred Stock, payable
quarterly when, as and if declared by the Board of Directors. Such dividends
shall not be cumulative.
2. Liquidation.
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(a) Preference. In the event of any liquidation, dissolution or
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winding up of the Corporation, either voluntary or involuntary, subject to the
rights of series of Preferred Stock that may from time to time come into
existence, the holders of the Series A, Series B,
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Series C, Series D and Series E Preferred Stock shall be entitled to receive,
prior and in preference to any distribution of any of the assets of the
Corporation to the holders of Common Stock by reason of their ownership thereof,
an amount per share equal to (i) $0.67 per share for each share of Series A
Preferred Stock then held by them, (ii) $0.48 per share for each share of Series
B Preferred Stock then held by them, (iii) $3.33 per share for each share of
Series C Preferred Stock then held by them, (iv) $8.67 per share for each share
of Series D Preferred Stock then held by them, and (v) $10.00 per share for each
share of Series E Preferred Stock then held by them, plus declared but unpaid
dividends. If, upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Series A, Series B, Series C, Series D and
Series E Preferred Stock shall be insufficient to permit the payment to such
holders of the full aforesaid preferential amounts, then, subject to the rights
of series of Preferred Stock that may from time to time come into existence, the
entire assets and funds of the Corporation legally available for distribution
shall be distributed ratably among the holders of the Series A, Series B, Series
C, Series D and Series E Preferred Stock in proportion to the preferential
amount each such holder is otherwise entitled to receive.
(b) Remaining Assets. Upon the completion of the distribution
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required by Section 2(a) above and any other distribution that may be required
with respect to series of Preferred Stock that may from time to time come into
existence, the remaining assets of the Corporation available for distribution to
shareholders shall be distributed among the holders of the Series A, Series B,
Series C, Series D and Series E Preferred Stock and the Common Stock pro rata
based on the number of shares of Common Stock held by each (assuming conversion
of all such Series A, Series B, Series C, Series D and Series E Preferred Stock)
until (i) with respect to the holders of Series A Preferred Stock, such holders
shall have received an aggregate of $2.00 per share (including amounts paid
pursuant to Section 2(a) above), (ii) with respect to the holders of Series B
Preferred Stock, such holders shall have received an aggregate of $1.45 per
share (including amounts paid pursuant to Section 2(a) above), (iii) with
respect to the holders of Series C Preferred Stock, such holders shall have
received an aggregate of $10.00 per share (including amounts paid pursuant to
Section 2(a) above), (iv) with respect to the holders of Series D Preferred
Stock, such holders shall have received an aggregate of $26.00 per share
(including amounts paid pursuant to Section 2(a) above), and (v) with respect to
the holders of Series E Preferred Stock, such holders shall have received an
aggregate of $30.00 per share (including amounts paid pursuant to Section 2(a)
above); thereafter, subject to the rights of series of Preferred Stock that may
from time to time come into existence, if assets remain in the Corporation, the
holders of the Common Stock of the Corporation shall receive all of the
remaining assets of the Corporation pro rata based on the number of shares of
Common Stock held by each.
(c) Certain Acquisitions.
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(i) Deemed Liquidation. For purposes of this Section 2, a
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liquidation, dissolution or winding up of the Corporation shall be deemed to
occur if the Corporation shall sell, convey, or otherwise dispose of or encumber
all or substantially all of its property or business or merge into or
consolidate with any other corporation (other than a
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wholly-owned subsidiary corporation) or effect any other transaction or series
of related transactions in which more than fifty percent (50%) of the voting
power of the Corporation is disposed of, provided that this Section 2(c)(i)
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shall not apply to a merger effected exclusively for the purpose of changing the
domicile of the Corporation.
(ii) Valuation of Consideration. In the event of a deemed
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liquidation as described in Section 2(c)(i) above, if the consideration received
by the Corporation is other than cash, its value will be deemed its fair market
value. Any securities shall be valued as follows:
(A) Securities not subject to investment letter or
other similar restrictions on free marketability:
(1) If traded on a securities exchange or The Nasdaq
Stock Market, the value shall be deemed to be the average of the closing prices
of the securities on such exchange over the thirty-day period ending three (3)
days prior to the closing;
(2) If actively traded over-the-counter, the value
shall be deemed to be the average of the closing bid or sale prices (whichever
is applicable) over the thirty-day period ending three (3) days prior to the
closing; and
(3) If there is no active public market, the value
shall be the fair market value thereof, as determined by the Corporation's Board
of Directors.
(B) The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a shareholder's status as an affiliate
or former affiliate) shall be to make an appropriate discount from the market
value determined as above in Section 2(c)(ii)(A) to reflect the approximate fair
market value thereof, as mutually determined by the Corporation's Board of
Directors.
(iii) Notice of Transaction. The Corporation shall give
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each holder of record of Preferred Stock written notice of such impending
transaction not later than ten (10) days prior to the shareholders' meeting
called to approve such transaction, or ten (10) days prior to the closing of
such transaction, whichever is earlier, and shall also notify such holders in
writing of the final approval of such transaction. The first of such notices
shall describe the material terms and conditions of the impending transaction
and the provisions of this Section 2, and the Corporation shall thereafter give
such holders prompt notice of any material changes. The transaction shall in no
event take place sooner than ten (10) days after the Corporation has given the
first notice provided for herein or sooner than ten (10) days after the
Corporation has given notice of any material changes provided for herein;
provided, however, that such periods may be shortened upon the written consent
of the holders of Preferred Stock that are entitled to such notice rights or
similar notice rights and that represent at least a majority of the voting power
of all then outstanding shares of such Preferred Stock.
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(iv) Effect of Noncompliance. In the event the
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requirements of this Section 2(c) are not complied with, the Corporation shall
forthwith either cause the closing of the transaction to be postponed until such
time as the requirements of this Section 2 have been complied with, or cancel
such transaction, in which event the rights, preferences and privileges of the
holders of each series of Preferred Stock shall revert to and be the same as
such rights, preferences and privileges existing immediately prior to the date
of the first notice referred to in Section 2(c)(iii) hereof.
3. Redemption. The Preferred Stock is not redeemable.
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4. Conversion. The holders of the Series A, Series B, Series C,
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Series D and Series E Preferred Stock shall have conversion rights as follows
(the "Conversion Rights"):
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(a) Right to Convert. Subject to Section 4(c), each share of
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Series A, Series B, Series C, Series D and Series E Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share, at the office of the Corporation or any transfer agent
for such stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing (i) $0.67 in the case of the Series A
Preferred Stock, (ii) $0.48 in the case of the Series B Preferred Stock, (iii)
$3.33 in the case of the Series C Preferred Stock, (iv) $8.67 in the case of the
Series D Preferred Stock, and (v) $10.00 in the case of the Series E Preferred
Stock, by the Conversion Price applicable to such share, determined as hereafter
provided, in effect on the date the certificate is surrendered for conversion.
The initial Conversion Price per share shall be $0.67 for shares of Series A
Preferred Stock, $0.48 for shares of Series B Preferred Stock, $3.33 for shares
of Series C Preferred Stock, $8.67 for shares of Series D Preferred Stock, and
$10.00 for shares of Series E Preferred Stock. Such initial Conversion Price
shall be subject to adjustment as set forth in Section 4(d) below.
(b) Automatic Conversion. Each share of Series A, Series B,
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Series C, Series D or Series E Preferred Stock shall automatically be converted
into shares of Common Stock at the Conversion Price at the time in effect for
such share immediately upon the earlier of (i) except as provided below in
Section 4(c), the Corporation's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), which results in
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aggregate cash proceeds to the Corporation of $15,000,000 (net of underwriting
discounts and commissions) or (ii) the date specified by written consent or
agreement of the holders of seventy-five percent (75%) of the then outstanding
shares of Preferred Stock, voting as a class.
(c) Mechanics of Conversion. Before any holder of Series A,
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Series B, Series C, Series D or Series E Preferred Stock shall be entitled to
convert the same into shares of Common Stock, he or she shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
Corporation or of any transfer agent for such series of Preferred Stock, and
shall give written notice to the Corporation at its principal corporate office,
of the election to convert the same and shall state therein the name or names in
which the certificate or certificates for shares of Common Stock are to be
issued. The Corporation shall, as soon as
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practicable thereafter, issue and deliver at such office to such holder of
Preferred Stock, or to the nominee or nominees of such holder, a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled as aforesaid. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
shares of such series of Preferred Stock to be converted, and the person or
persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock as of such date. If the conversion is in connection
with an underwritten offering of securities registered pursuant to the
Securities Act, the conversion may, at the option of any holder tendering such
Preferred Stock for conversion, be conditioned upon the closing with the
underwriters of the sale of securities pursuant to such offering, in which event
the person(s) entitled to receive Common Stock upon conversion of such Preferred
Stock shall not be deemed to have converted such Preferred Stock until
immediately prior to the closing of such sale of securities.
(d) Conversion Price Adjustments of Preferred Stock for Certain
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Splits and Combinations. The Conversion Price of the Series A, Series B,
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Series C, Series D and Series E Preferred Stock shall be subject to adjustment
from time to time as follows:
(i) Stock Splits and Dividends. In the event the
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Corporation should at any time or from time to time after the date of the
purchase of the Series E Preferred Stock (the "Purchase Date") fix a record date
for the effectuation of a split or subdivision of the outstanding shares of
Common Stock or the determination of holders of Common Stock entitled to receive
a dividend or other distribution payable in additional shares of Common Stock or
other securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any consideration
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by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the Conversion Price of each of the Series A, Series B, Series C, Series D and
Series E Preferred Stock shall be appropriately decreased so that the number of
shares of Common Stock issuable on conversion of each share of such series shall
be increased in proportion to such increase of the aggregate of shares of Common
Stock outstanding and those issuable with respect to such Common Stock
Equivalents with the number of shares issuable with respect to Common Stock
Equivalents.
(ii) Reverse Stock Splits. If the number of shares of
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Common Stock outstanding at any time after the Purchase Date is decreased by a
combination of the outstanding shares of Common Stock, then, following the
record date of such combination, the Conversion Price for each of the Series A,
Series B, Series C, Series D and Series E Preferred Stock shall be appropriately
increased so that the number of shares of Common Stock issuable on conversion of
each share of such series shall be decreased in proportion to such decrease in
outstanding shares.
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(e) Other Distributions. In the event the Corporation shall declare a
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distribution payable in securities of other persons, evidences of indebtedness
issued by the Corporation or other persons, assets (excluding cash dividends) or
options or rights not referred to in Section 4(d)(i), then, in each such case
for the purpose of this Section 4(e), the holders of Series A, Series B, Series
C, Series D and Series E Preferred Stock shall be entitled to a proportionate
share of any such distribution as though they were the holders of the number of
shares of Common Stock of the Corporation into which their shares of Preferred
Stock are convertible as of the record date fixed for the determination of the
holders of Common Stock of the Corporation entitled to receive such
distribution.
(f) Recapitalizations. If at any time or from time to time there
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shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or sale of assets transaction provided for elsewhere in
this Section 4 or Section 2) provision shall be made so that the holders of the
Series A, Series B, Series C, Series D and Series E Preferred Stock shall
thereafter be entitled to receive upon conversion of such Preferred Stock the
number of shares of stock or other securities or property of the Corporation or
otherwise, to which a holder of Common Stock deliverable upon conversion would
have been entitled on such recapitalization. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Section 4
with respect to the rights of the holders of such Preferred Stock after the
recapitalization to the end that the provisions of this Section 4 (including
adjustment of the Conversion Price then in effect and the number of shares
purchasable upon conversion of such Preferred Stock) shall be applicable after
that event and be as nearly equivalent as practicable.
(g) No Fractional Shares and Certificate as to Adjustments.
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(i) No fractional shares shall be issued upon the conversion of
any share or shares of Preferred Stock, and the number of shares of Common Stock
to be issued shall be rounded to the nearest whole share. The number of shares
issuable upon such conversion shall be determined on the basis of the total
number of shares of Series A, Series B, Series C, Series D or Series E Preferred
Stock the holder is at the time converting into Common Stock and the number of
shares of Common Stock issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or readjustment of
the Conversion Price of Series A, Series B, Series C, Series D or Series E
Preferred Stock pursuant to this Section 4, the Corporation, at its expense,
shall promptly compute such adjustment or readjustment in accordance with the
terms hereof and prepare and furnish to each holder of such Preferred Stock a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Corporation
shall, upon the written request at any reasonable time of any holder of Series
A, Series B, Series C, Series D or Series E Preferred Stock, furnish or cause to
be furnished to such holder a like certificate setting forth (A) such adjustment
and readjustment, (B) the Conversion Price for such series of Preferred Stock at
the time in effect, and (C) the number of shares of Common Stock and the amount,
if any, of other property which at the time would be received upon the
conversion of a share of such series of Preferred Stock.
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(h) Notices of Record Date. In the event of any taking by the
----------------------
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall mail to each holder of Series A, Series B, Series C, Series D or Series E
Preferred Stock, at least ten (10) days prior to the date specified therein, a
notice specifying the date on which any such record is to be taken for the
purpose of such dividend, distribution or right, and the amount and character of
such dividend, distribution or right.
(i) Reservation of Stock Issuable Upon Conversion. The Corporation
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shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Preferred Stock, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of such series of Preferred Stock; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of such series of
Preferred Stock, in addition to such other remedies as shall be available to the
holder of such Preferred Stock, the Corporation will take such corporate action
as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes, including, without limitation, engaging in best
efforts to obtain the requisite shareholder approval of any necessary amendment
to these articles.
(j) Notices. Any notice required by the provisions of this Section 4
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to be given to the holders of shares of Series A, Series B, Series C, Series D
or Series E Preferred Stock shall be deemed given if deposited in the United
States mail, postage prepaid, and addressed to each holder of record at his
address appearing on the books of the Corporation.
5. Voting Rights. The holder of each share of Series A, Series B,
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Series C, Series D, Series E and Series E-1 Preferred Stock shall have the
right to one vote for each share of Common Stock into which such Preferred Stock
could then be converted, and with respect to such vote, such holder shall have
full voting rights and powers equal to the voting rights and powers of the
holders of Common Stock, and shall be entitled, notwithstanding any provision
hereof, to notice of any shareholders' meeting in accordance with the bylaws of
the Corporation, and shall be entitled to vote, together with holders of Common
Stock, with respect to any question upon which holders of Common Stock have the
right to vote; provided, however that the holders of Series E-1 Preferred Stock,
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prior to its conversion in accordance with Article III(B)(4)(a) or (b) above,
shall not be entitled to vote for the election of directors of the Corporation.
Fractional votes shall not, however, be permitted and any fractional voting
rights available on an as-converted basis (after aggregating all shares into
which shares of Series A, Series B, Series C, Series D, Series E or Series E-1
Preferred Stock held by each holder could be converted) shall be rounded to the
nearest whole number (with one-half being rounded upward).
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6. Protective Provisions. So long as at least 5,000,000 shares of
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Preferred Stock are outstanding (as adjusted for stock splits, stock dividends
or recapitalizations), except as otherwise required by applicable law, the
Corporation shall not without first obtaining the approval (by vote or written
consent, as provided by law) of the holders of at least seventy percent (70%) of
the then outstanding shares of Preferred Stock, voting together as a class:
(a) effect a transaction described in Section 2(c)(i) above;
(b) alter or change the rights, preferences or privileges of the
shares of Series A, Series B, Series C, Series D or Series E Preferred Stock so
as to affect adversely the shares of such series;
(c) increase the total number of authorized shares of Series A,
Series B, Series C, Series D or Series E Preferred Stock;
(d) authorize or issue, or obligate itself to issue, any other
equity security, including any other security convertible into or exercisable
for any equity security, having a preference over, or being on a parity with,
the Series A, Series B, Series C, Series D or Series E Preferred Stock with
respect to voting, dividends, conversion or upon liquidation;
(e) effect a reclassification or recapitalization of the
outstanding, capital stock of the Company; or
(f) amend Section 4(b)(ii) above.
7. Status of Converted Stock. In the event any shares of Preferred
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Stock shall be converted pursuant to Section 4 hereof, the shares so converted
shall be cancelled and shall not be issuable by the Corporation. The
Certificate of Incorporation of the Corporation shall be appropriately amended
to effect the corresponding reduction in the Corporation's authorized capital
stock.
8. Repurchase of Shares. In connection with repurchases by the
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Corporation of its Common Stock pursuant to its agreements with certain of the
holders thereof, Section 170 of the Delaware General Corporation Law shall not
apply in whole or in part with respect to such repurchases.
(C) Common Stock.
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1. Dividend Rights. Subject to the prior rights of holders of all
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classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of the Corporation legally
available therefor, such dividends as may be declared from time to time by the
Board of Directors.
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2. Liquidation Rights. Upon the liquidation, dissolution or winding
------------------
up of the Corporation, the assets of the Corporation shall be distributed as
provided in Section 2 of Division (B) of this Article IV.
3. Redemption. The Common Stock is not redeemable, except pursuant
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to contractual arrangements.
4. Voting Rights. The holder of each share of Common Stock shall
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have the right to one vote, and shall be entitled to notice of any shareholders'
meeting in accordance with the bylaws of the Corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law.
ARTICLE V
The Board of Directors of the Corporation is expressly authorized to make,
alter or repeal Bylaws of the Corporation.
ARTICLE VI
Elections of directors need not be by written ballot unless otherwise
provided in the Bylaws of the Corporation.
ARTICLE VII
(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 or officer of the
Corporation or any predecessor of the Corporation, or serves or served at any
other enterprise as a director or officer at the request of the Corporation or
any predecessor to the Corporation.
(C) Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of the Corporation's Certificate of Incorporation inconsistent
with this Article VII, shall eliminate or reduce the effect of this Article VII
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article VII, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision."
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The foregoing Amended and Restated Certificate of Incorporation has been
duly adopted by this Corporation's Board of Directors and stockholders in
accordance with the applicable provisions of Sections 141, 228, 242, and 245 of
the General Corporation Law of the State of Delaware.
Executed at Fremont, California this ___ day of July, 2000.
________________________________
Krish Panu, President
________________________________
Tae Hea Nahm, Secretary
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