THIRD AMENDED AND RESTATED

                          CERTIFICATE OF INCORPORATION

 

                                       OF

 

                             AVID TECHNOLOGY, INC.

                             a Delaware corporation

 

 

                         Incorporated September 4, 1987

 

 

                     Pursuant to Sections 242 and 245 of the

                General Corporation Law of the State of Delaware

 

 

        The undersigned, Curt A. Rawley and Jonathan Cook are President and

Secretary, respectively, of Avid Technology, Inc., a corporation organized and

existing under the General Corporation Law of the State of Delaware (the

"Corporation"). The Corporation's Certificate of Incorporation was initially

filed in the Office of the Secretary of State of the State of Delaware on

September 4, 1987. Certificate of Amendment to the Certificate of Incorporation

were filed with the Office of the Secretary of State of the State of Delaware on

August 25, 1988, May 19, 1989, January 22, 1990, February 22, 1991, May 17, 1991

and May 21, 1991. Restated Certificates of Incorporation were filed with the

Office of the Secretary of State of the State of Delaware on September 23, 1992,

and February 2, 1993. The undersigned, as President and Secretary of the

Corporation, do hereby certify that (a) the Board of Directors duly adopted a

resolution pursuant to Sections 242 and 245 of the General Corporation Law of

the State of Delaware proposing that this Third Amended Restated Certificate of

Incorporation (the "Restated Certificate") be approved and declaring the

adoption of such Restated Certificate to be advisable; and (b) the stockholders

of the Corporation duly approved this Restated Certificate by written consent in

accordance with Sections 228 and 242 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 this Restated Certificate.

 

        FIRST:   The name of the Corporation is: Avid Technology, Inc.

 

 

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        SECOND:  The address of the Corporation's registered office in the State

of Delaware is The Corporation Trust Center, 1209 Orange Street, in the city of

Wilmington, County of New Castle. The name of the registered agent of the

Corporation at such address is The Corporation Trust Company.

 

        THIRD:   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.

 

        FOURTH:  The total number of shares of all classes of stock which the

Corporation shall have authority to issue is 31,000,000 shares, consisting of

(i) 30,000,000 shares of Common Stock, $.01 par value per share ("Common

Stock"), and (ii) 1,000,000 shares of Preferred Stock, $.01 par value per share

("Preferred Stock").

 

        The following is a statement of the designations and the powers,

privileges and rights, and the qualifications, limitations or restrictions

thereof in respect of each class of capital stock of the Corporation.

 

A. COMMON STOCK.

   -------------

 

        1. General. The voting, dividend and liquidation rights of the holders

of the Common Stock are subject to and qualified by the rights of the holders of

the Preferred Stock of any series as may be designated by the Board of Directors

upon any issuance of the Preferred Stock of any series.

 

        2. Voting. The holders of the Common Stock are entitles to one vote for

each share held at all meeting of stockholders (and written actions in lieu of

meetings). There shall be no cumulative voting.

 

           The number of authorized shares of Common 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 stock of the Corporation

entitled to vote, irrespective of the provisions of Section 242(b) (2) of the

General Corporation Law of Delaware.

 

        3. Dividends. Dividends may be declared and paid on the Common Stock

from funds lawfully available therefore as and when determined by the Board of

Directors and subject to any preferential dividend rights of any then

outstanding Preferred Stock.

 

 

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        4. Liquidation. Upon the dissolution or liquidation of the Corporation,

whether voluntary or involuntary, holders of Common Stock will be entitled to

receive all assets of the Corporation available for distribution to its

stockholders, subject to any preferential rights of any then outstanding

Preferred Stock.

 

B. PREFERRED STOCK.

   ----------------

 

        Preferred Stock may be issued from time to time in one or more series,

each of such series to have such terms as stated or expressed herein and in the

resolution or resolutions providing for the issue of such series adopted by the

Board of Directors of the Corporation as hereinafter provided. Any shares or

Preferred Stock which may be redeemed, purchased or acquired by the Corporation

may be reissued except as otherwise provided by law. Different series of

Preferred Stock shall not be construed to constitute different classes of shares

for the purposes of voting by classes unless expressly provided.

 

        Authority is hereby expressly granted to the Board of Directors from

time to time to issue the Preferred Stock in one or more series, and in

connection with the creation of any such series, by resolution or resolutions

providing for the issue of the shares thereof, to determine and fix such voting

powers, full or limited, or no voting powers, and such designations, preferences

and relative participating, optional or other special rights, and

qualifications, limitations or restrictions thereof, including without

limitation thereof, dividend rights, conversion rights, redemption privileges

and liquidation preferences, as shall be stated and expressed in such

resolutions, all to the full extent now or hereafter permitted by the General

Corporation Law of Delaware. Without limiting the generality of the foregoing,

the resolutions providing for issuance of any series of Preferred Stock may

provide that such series shall be superior or rank equally or be junior to the

Preferred Stock of any other series to the extent permitted by law. Except as

otherwise provided in this Certificate of Incorporation, no vote of the holders

of the Preferred Stock or Common Stock shall be a prerequisite to the

designation or issuance of any shares of the Preferred Stock authorized by and

complying with the conditions of this Certificate of Incorporation, the right to

have such vote being expressly waived by all present and future holders of the

capital stock of the Corporation.

 

        FIFTH:  The Corporation is to have perpetual existence.

 

 

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        SIXTH:   To the maximum extent permitted by Section 102 (b) (7) of the

General Corporation Law of Delaware, a director of this 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 involve 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.

 

        SEVENTH: In furtherance and not in limitation of the powers conferred

by statute, the board of directors is expressly authorized:

 

                A. To make, alter or repeal the by-laws of the Corporation.

 

                B. To authorize and cause to be executed mortgages and liens

upon the real and personal property of the Corporation.

 

                C. To set apart out of any of the funds of the Corporation

available for dividends a reserve or reserves for any proper purpose and to

abolish any such reserve in the manner in which it was created.

 

                D. By a majority of the whole board, to designate one or more

committees, each committee to consist of one or more of the directors of the

Corporation. The board may designate one or more directors as alternate members

of any committee, who may replace any absent or disqualified member at any

meeting of the committee. The by-laws may provide that in the absence or

disqualification of a member of a committee, the member or members thereof

present at any meeting and not disqualified from voting, whether or not he or

they constitute a quorum, may unanimously appoint another member of the board of

directors to act at the meeting in the place of such any agent or disqualified

member. Any such committee, to the extent provided in the resolution of the

Board of Directors, or in the by-laws of the Corporation, shall have and may

exercise all the powers and authority of the Board of Directors in the

management of the business and affairs of the Corporation, and may authorize the

seal of the Corporation to be affixed to all papers which may require it; but no

such committee shall have the power or authority in reference to amending the

Restated Certificate, adopting an agreement of merger or consolidation,

recommending to the stockholders the sale,

 

 

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lease, or exchange of all or substantially all of the Corporation's property and

assets, recommending to the stockholders a dissolution of the corporation or a

revocation of a dissolution, or amending the by-laws of the Corporation; and,

unless the resolution or by-laws expressly so provide, no such committee shall

have the power or authority to declare a dividend or to authorize the issuance

of stock.

 

                E. When and as authorized by the stockholders in accordance with

statute, to sell, lease or exchange all or substantially all of the property and

assets of the Corporation, including its goodwill and its corporate franchises,

upon such terms and conditions and for such consideration, which may consist in

whole or in part of money or property, including shares of stock in, and/or

other securities of, any other corporation or corporations, as its Board of

Directors shall deem expedient and for the best interests of the Corporation.

 

        EIGHTH:  Whenever a compromise or arrangement is proposed between this

Corporation and its creditors or any class of them and/or between this

Corporation and its stockholders or any class of them, any court of equitable

jurisdiction within the State of Delaware may, on the application in a summary

way of this Corporation or of any creditor or stockholder thereof, or on the

application of any receiver or receivers appointed for this Corporation under

the provisions of Section 291 of Title 8 of the Delaware Code or on the

application of trustees in dissolution or of any receiver or receivers appointed

for this Corporation under the provisions of Section 279 of Title 8 of the

Delaware code, order a meeting of the creditors or class of creditors , and/or

of the stockholders or class of stockholders of this Corporation, as the case

may be, to be summoned in such manner as the said court directs. If a majority

in number representing three-fourths in value of the creditors or class of

creditors, and/or of the stockholders or class of stockholders or class of

stockholders of this Corporation, as the case may be, agree to any compromise as

consequences of such compromise or arrangement, the said compromise or

arrangement and the said reorganization shall, if sanctioned by the court to

which the said application has been made, be binding on all the creditors or

class of creditors, and/or all the stockholders or class of stockholders of this

Corporation, as the case may be, and also on this Corporation.

 

        NINTH:  Meetings of the stockholders may be held within or without the

State of Delaware, as the by-laws 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

 

 

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place or places as may be designated from time to time by the Board of Directors

or in the by-laws of the Corporation. Elections of directors need not be by

written ballot unless the by-laws of the Corporation shall so provide.

 

        TENTH: 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; no action by the stockholders may be taken

by a written action in lieu of a meeting.

 

        ELEVENTH:

 

        A. Actions, Suits and Proceedings Other than by or in the Right of the

Corporation. The Corporation shall indemnify each person who was or is a party

or is a threatened to be made a party to any threatened, pending or completed

action, suit or proceeding, whether civil, criminal, administrative or

investigative (other than an action by or in the right of the corporation), by

reason of the fact that he is or was, or has agreed to become, a director or

officer of the Corporation, or is or was serving, or has agreed to serve, at the

request of the Corporation, as a director, officer or trustee of, or in a

similar capacity with, another corporation, partnership, joint venture, trust or

other enterprise (including any employee benefit plan) (all such persons being

referred to hereafter as an "Indemnitee"), or by reason of any action alleged to

have been taken or omitted in such capacity, against all expenses (including

attorneys' fees), judgments, fines and amounts paid in settlement actually and

reasonably incurred by him or on his behalf in connection with such action,

suite or proceeding and any appeal therefrom, if he acted in good faith and in a

manner he reasonably believed to be in, or not opposed to, the best interests of

the Corporation, and, with respect to any criminal action or proceeding, had no

reasonable cause to believe his conduct was unlawful. The termination of any

action, suit or proceeding by judgment, order, settlement, conviction or upon a

plea or nolo contendere or its equivalent, shall not, of itself, create a

presumption that the person did not act in good faith and in a manner which be

reasonably believed to be in, or not opposed to, the best interests of the

Corporation, and, with respect to any criminal action or proceeding, had

reasonable cause to believe that his conduct was unlawful. Notwithstanding

anything to the contrary in this Article, except as set forth in Paragraph F

below, the Corporation shall not indemnify an Indemnitee seeking indemnification

in connection with a proceeding (or part thereof) initiated by the Indemnitee

unless the initiation thereof was approved by the Board of Directors of the

Corporation.

 

 

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        B. Actions or Suits by or in the Right of the Corporation. The

Corporation shall indemnify any Indemnitee who was or is a party or is

threatened to be made a party to any threatened, pending or completed action or

suit by or in the right of the Corporation to procure a judgment in its favor by

reason of the fact that he is or was, or has agreed to become, a director or

officer of the Corporation, or is or was serving, or has agreed to serve, at the

request of the Corporation, as a director, officer or trustee of, or in a

similar capacity with, another corporation, partnership, joint venture, trust or

other enterprise (including any employee benefit plan), or by reason of any

action alleged to have been taken or omitted in such capacity, against all

expenses (including attorneys' fees) and amounts paid in settlement actually and

reasonably incurred by him or on his behalf in connection with such action, suit

or proceeding and any appeal therefrom, if he acted in good faith and in a

manner he reasonably believed to be in, or not opposed to, the best interests of

the Corporation, except that no indemnification shall be made in respect of any

claim, issue or matter as to which such person shall have been adjudged to be

liable to the Corporation unless and only to the extent that the Court of

Chancery of Delaware or the court in which such action or suit was brought shall

determine upon application that, despite the adjudication of such liability but

in view of all the circumstances of the case, such person is fairly and

reasonably entitled to indemnity for such expenses (including attorneys' fees)

which the Court of Chancery of Delaware or such other court shall deem proper.

 

        C. Indemnification for Expenses of Successful Party. Notwithstanding the

other provisions of this Article, to the extent that an Indemnitee has been

successful, on the merits or otherwise, in defense of any action, suit or

proceeding referred to in Paragraphs A and B of this Article, or in defense of

any claim, issue or matter therein, or on appeal from any such action, suit or

proceeding, he shall be indemnified against all expenses (including attorneys'

fees) actually and reasonable incurred by him or on his behalf in connection

therewith. Without limiting the foregoing, if any action, suit or proceeding is

disposed of, on the merits or otherwise (including a disposition without

prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an

adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of

guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the

Indemnitee did not act in good faith and in a manner he reasonably believe to be

in or not opposed to the best interests of the Corporation, and (v) with respect

to any criminal proceeding, an adjudication that the Indemnitee had reasonable

cause to believe his conduct was unlawful, the Indemnitee shall be considered

for the purposes hereof to have been wholly successful with respect thereto.

 

 

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        D. Notification and Defense of Claim. As a condition precedent to his

right to be indemnified, the Indemnitee must notify the Corporation in writing

as soon as practicable of any action, suit, proceeding or investigation

involving him for which indemnity will or could be sought. With respect to any

action, suit, proceeding or invesitgation of which the Corporation is so

notified, the Corporation will be entitled to participate therein at its own

expense and/or to assume the defense thereof at its own expense, with legal

counsel reasonably acceptable to the Indemnitee. After notice from the

Corporation to the Indemnitee of its election so to assume such defense, the

Corporation shall not be liable to the Indemnitee for any legal or other

expenses subsequently incurred by the Indemnitee in connection with such claim,

other than as provided below in this Paragraph D. The Indemnitee shall have the

right to employ his own counsel in connection with such claim, but the fees and

expenses of such counsel incurred after notice from the Corporation of its

assumption of the defense thereof shall be at the expense of the Indemnitee

unless (i) the employment of counsel by the Indemnitee has been authorized by

the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded

that there may be a conflict of interest or position on any significant issue

between the Corporation and the Indemnitee in the conduct of the defense of such

action or (iii) the Corporation shall not in fact have employed counsel to

assume the defense of such action, in each of which cases the fees and expenses

of counsel for the Indemnitee shall be at the expense of the Corporation, except

as otherwise expressly provided by this Article. The Corporation shall not be

entitled, without the consent of the Indemnitee, to assume the defense of any

claim brought by or in the right of the Corporation or as to which counsel for

the Indemnitee shall have reasonably made the conclusion provided for in clause

(ii) above.

 

        E. Advance of Expenses. Subject to the provisions of Paragraph F below,

in the event that the Corporation does not assume the defense pursuant to

Paragraph D of this Article of any action, suit, proceeding or investigation of

which the Corporation receives notice under the Article, any expenses (including

attorneys' fees) incurred by an Indemnitee in defending a civil or criminal

action, suit, proceeding or investigation or any appeal therefrom shall be paid

by the Corporation in advance of the final disposition of such matter, provided,

however, that the payment of such expenses, incurred by an Indemnitee in advance

of the final disposition of such matter shall be made only upon receipt of an

undertaking by or on behalf of the Indemnitee to repay all amounts so advanced

in the event that it shall ultimately be determined

 

 

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that the Indemnitee is not entitled to be indemnified by the Corporation as

authorized in this Article. Such undertaking may be accepted without reference

to the financial ability of such person to make such repayment.

 

        F. Procedure for Indemnification. In order to obtain indemnification or

advancement of expenses pursuant to Paragraph A, B, C or E of this Article, the

Indemnitee shall submit to the Corporation a written request, including in such

request documentation and information as is reasonably available to the

Indemnitee and is reasonably necessary to determine whether and to what extent

the Indemnitee is entitled to indemnification or advancement of expenses. Any

such indemnification or advancement of expenses shall be made promptly, and in

any event within 60 days after receipt by the Corporation of the written request

of the Indemnitee, unless with respect to requests under Paragraph A, B, or E

the Corporation determines within such 60-day period that the Indemnitee did not

meet the applicable standard of conduct set forth in Paragraph A or B, as the

case may be. Such determination shall be made in each instance by (i) a majority

vote of a quorum of the directors of the Corporation consisting of persons who

are not at that time parties to the action, suit or proceeding in question

("disinterested directors"), (ii) if no such quorum is obtainable, a majority

vote of a committee of two or more disinterested directors, (iii) a majority

vote of a quorum of the outstanding shares of stock of all classes entitled to

vote for directors, voting as a single class, which quorum shall consist of

stockholders who are not at the time parties to the action, suit or proceeding

in question, (iv) independent legal counsel (who may be regular legal counsel to

the Corporation), or (v) a court of competent jurisdiction.

 

        G. Remedies. The right to indemnification or advances as granted by this

Article shall be enforceable by the Indemnitee in any court of competent

jurisdiction if the Corporation denies such request, in whole or in part, or if

no disposition thereof is made within the 60-day period referred to above in

Paragraph F. Unless otherwise provided by law, the burden of proving that the

Indemnitee is not entitled to indemnification or advancement of expenses under

this Article shall be on the Corporation. Neither the failure of the Corporation

to have made a determination prior to the commencement of such action that

indemnification is proper in the circumstances because the Indemnitee has met

the applicable standard of conduct, nor an actual determination by the

Corporation pursuance to Paragraph F that the Indemnitee has not met such

applicable standard of conduct, shall be a defense to the action

 

 

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or create a presumption that the Indemnitee has not met the applicable standard

of conduct. The Indemnitee's expenses (including attorneys' fees) incurred in

connection with successfully establishing his right to indemnification, in whole

or in part, in any such proceeding shall also be indemnified by the Corporation.

 

        H. Subsequent Amendment.  No amendment, termination or repeal of this

Article or of the relevant provisions of the General Corporation Law of Delaware

or any other applicable laws shall affect or diminish in any way the rights of

any Indemnitee to indemnification under the provisions hereof with respect to

any action, suit, proceeding or investigation arising out of or relating to any

actions, transactions or facts occurring prior to the final adoption of such

amendment, termination or repeal.

 

        I. Other Rights. The indemnification and advancement of expenses

provided by the Article shall not be deemed exclusive of any other rights to

which an Indemnitee seeking indemnification or advancement of expenses may be

entitled under any law (common or statutory), agreement or vote of stockholders

or disinterested directors or otherwise, both as to action in his official

capacity and as to action in any other capacity while holding office for the

Corporation, and shall continue as to an Indemnitee who has ceased to be a

director or officer, and shall inure to the benefit of the estate, heirs,

executors and administrators of the Indemnitee. Nothing contained in this

Article shall be deemed to prohibit, and the Corporation is specifically

authorized to enter into, agreements with officers and directors providing

indemnification rights and procedures different from those set forth in this

Article. In addition, the Corporation may, to the extent authorized from time to

time by its Board of Directors, grant indemnification rights to other employees

or agents of the Corporation or other persons serving the Corporation and such

rights may be equivalent to, or greater or less than, those set forth in this

Article.

 

        J. Partial Indemnification. If an Indemnitee is entitled under any

provision of this Article to indemnification by the Corporation for some or a

portion of the expenses (including attorneys' fees), judgments, fines or amounts

paid in settlement actually and reasonably incurred by him or on his behalf in

connection with any action, suit, proceeding or investigation and any appeal

therefrom but not, however, for the total amount thereof, the Corporation shall

nevertheless indemnify the Indemnitee for the portion of such expenses

(including attorneys' fees), judgments, fines or amounts paid in settlement to

which the Indemnitee is entitled.

 

 

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        K. Insurance. The Corporation may purchase and maintain insurance, at

its expense, to protect itself and any director, officer, employee or agent of

the Corporation or another corporation, partnership, joint venture, trust or

other enterprise (including any employee benefit plan) against any expense,

liability or loss incurred by him in any such capacity, or arising out of his

status as such, whether or not the Corporation would have the power to indemnify

such person against such expense, liability or loss under the General

Corporation Law of Delaware.

 

        L. Merger or Consolidation. If the Corporation is merged into or

consolidated with another corporation and the Corporation is not the surviving

corporation, the surviving corporation shall assume the obligations of the

Corporation under this Article with respect to any action, suit, proceeding or

investigation arising out of or relating to any actions, transactions or facts

occurring prior to the date of such merger or consolidation.

 

        M. Savings Clause. If this Article or any portion hereof shall be

invalidated on any ground by court of competent jurisdiction, then the

Corporation shall nevertheless indemnify each Indemnitee as to any expenses

(including attorneys' fees), judgments, fines and amounts paid in settlement in

connection with any action, suit, proceeding or investigation, whether civil,

criminal or administrative, including an action by or in the right of the

Corporation, to the fullest extent permitted by any applicable portion of this

Article that shall not have been invalidated and to the fullest extent permitted

by applicable law.

 

        N. Definitions. Terms used herein and defined in Section 145(h) and

Section 145(i) of the General Corporation Law of Delaware shall have the

respective meanings assigned to such terms in such Section 145(h) and Section

145(i).

 

        O. Subsequent Legislation. If the General Corporation Law of Delaware is

amended after adoption of the Article to expand further the indemnification

permitted to Indemnitees, then the Corporation shall indemnify such person to

the fullest extent permitted by the General Corporation Law of Delaware, as so

amended.

 

 

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        TWELFTH: 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.

 

 

        EXECUTED at Tewksbury, Massachusetts, as of the 18th day of March, 1993.

 

 

 

                                    /S/ Curt A. Rawley

                                    ------------------

                                    Curt A. Rawley

                                    President

 

 

 

 

ATTEST:

 

 

 

/S/ Jonathan Cook

-----------------

Jonathan Cook

Secretary

 

 

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                            CERTIFICATE OF AMENDMENT

 

                                     OF THE

 

                           THIRD AMENDED AND RESTATED

                         CERTIFICATION OF INCORPORATION

 

                                       OF

 

                              AVID TECHNOLOGY, INC.

 

 

                         Pursuant to Sections 242 of the

                General Corporation Law of the State of Delaware

                ------------------------------------------------

 

 

        AVID TECHNOLOGY, INC. (hereinafter referred to as the "Corporation"),

organized and existing under and by virtue of the General Corporation Law of

the State of Delaware, does hereby certify as follows:

 

        That at a meeting of the Board of Directors of the Corporation, the

Board of Directors duly adopted resolutions pursuant to Section 242 of the

General Corporation Law of the State of Delaware, setting forth an amendment to

the Third Amended and Restated Certificate of Incorporation of the Corporation

and declaring said amendment to be advisable. The stockholders of the

Corporation duly approved said proposed amendment at a Special Meeting of the

Stockholders conducted pursuant to notice duly given in accordance with Sections

211 and 242 of the General Corporation Law of the State of Delaware. The

resolution setting forth the amendment is as follows:

 

 

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        RESOLVED: That the Board of Directors hereby deems it advisable and in

                  the best interests of the Corporation to amend

                  (the "Amendment") Article FOURTH of the Corporation's Third

                  Amended and Restated Certificate of Incorporation by deleting

                  the first paragraph of Article FOURTH in its entirety and

                  substituting in lieu thereof a new Article FOURTH which shall

                  read in its entirety as follows:

 

                  FOURTH:  The total number of shares of all classes of stock

                  which the Corporation shall have authority to issue is

                  51,000,000 shares, consisting of (i) 50,000,000 shares of

                  Common Stock, $.01 par value per share (the "Common Stock"),

                  and (ii) 1,000,000 shares of Preferred Stock, $.01 par value

                  per share (the "Preferred Stock").

 

        IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be

affixed hereto and this Certificate of Amendment to the Third Amended and

Restated Certificate of Incorporation of the Corporation to be duly executed on

its behalf by its President and attested by its Secretary this 5th day of

January, 1995.

 

 

                                                AVID TECHNOLOGY, INC.

 

                                                By: /S/ Curt A. Rawley

                                                    ------------------

                                                    Curt A. Rawley

                                                    President

 

 

 

 

ATTEST:

 

 

 

By: /S/ Jonathan H. Cook

    --------------------

    Jonathan H. Cook

    Secretary

 

 

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                   CERTIFICATE OF CORRECTION FILED TO CORRECT

                      A CERTAIN ERROR IN THE CERTIFICATE OF

                      DESIGNATIONS OF AVID TECHNOLOGY, INC.

                  FILED IN THE OFFICE OF THE SECRETARY OF STATE

                          OF DELAWARE ON MARCH 6, 1996.

 

                  -------------------------------------------

 

        Avid Technology, Inc.,  a corporation organized and existing under and

by virtue of the General Corporation Law of the State of Delaware,

 

        DOES HEREBY CERTIFY:

 

               The name of the corporation is Avid Technology, Inc.

 

               That a Certificate of Designations was filed by the Secretary of

State of Delaware on March 6, 1996 and that said Certificate requires correction

as permitted by Section 103 of the General Corporation Law of the State of

Delaware.

 

               The inaccuracies or defects of said Certificate to be corrected

are as follows:

               (1) That the IN WITNESS WHEREOF paragraph incorrectly states

that the certificate is executed on behalf of the President.

 

               (2) That Section 6, Paragraph (A) incorrectly states that Series

A Preferred Stock is entitled to a minimum preferential liquidation payment of

$10 Per Share.

 

               That the IN WITNESS WHEREOF paragraph is corrected to read as

               follows:

 

        IN WITNESS WHEREOF, this certificate of Designations is executed on

behalf of the Corporation by its Vice Chairman of the Board of Directors and

attested by its Assistant Secretary this 4th day of March, 1996.

 

        Section 6, Paragraph (A) of the Certificate is corrected to read as

        follows:

 

Section 6. Liquidation Dissolution or Winding Up.

           --------------------------------------

 

        (A) Upon any liquidation, dissolution or winding up of the Corporation,

no distribution shall be made (1) to the holders of shares of stock ranking

junior (either as to dividends or upon

 

 

                                       1

<PAGE>

 

liquidation, dissolution or winding up) to the Series A Preferred Stock unless,

prior thereto, the holders of shares of Series A Preferred Stock shall have

received $1,000 per share, plus an amount equal to accrued and unpaid dividends

and distributions thereon, whether or not declared, to the date of such payment,

provided that the holders of the shares of Series A Preferred Stock shall be

entitled to receive an aggregate amount per share, subject to the provision for

adjustment hereinafter set forth, equal to 1,000 times the aggregated amount to

be distributed per share to holders of shares of Common Stock, or (2) to the

holders of shares of stock ranking on a parity (either as to dividends or upon

liquidation, dissolution or winding up) with the Series A Preferred Stock,

except distributions made ratably on the Series A Preferred Stock and all such

parity stock in proportion to the total amounts to which the holders of all such

shares are entitled upon such liquidation, dissolution or winding up.

 

 

        IN WITNESS WHEREOF, said Avid Technology, Inc. has caused this

Certificate to be signed by Curt A. Rawley, Vice-Chairman of the Board of

Directors and attested by Mark G. Borden, its Assistant Secretary, this 28th day

of March, 1996.

 

 

                                             AVID TECHNOLOGY, INC.

 

                                             By: /S/ Curt A. Rawley

                                                 ------------------------------

                                                 Its Vice-Chairman of the Board

                                                 of Directors

 

 

 

 

ATTEST:

 

 

 

By: /S/ Mark G. Borden

    ------------------

    Assistant Secretary

 

 

                                       2

<PAGE>

 

 

                           CERTIFICATE OF DESIGNATIONS

 

                                       OF

 

                              AVID TECHNOLOGY, INC.

 

                   -------------------------------------------

 

        Avid Technology, Inc., a corporation organized and existing under the

laws of the State of Delaware (hereinafter called the "Corporation"), hereby

certifies that the following resolution was adopted by the Board of Directors of

the Corporation at a meeting duly called and held on February 29, 1996:

 

        RESOLVED: That pursuant to the authority granted to and vested in the

Board of Directors of this Corporation (hereinafter called the "Board of

Directors" or the "Board") in accordance with the provisions of the Certificate

of Incorporation, as amended, the Board of Directors hereby creates a series of

Preferred Stock, $.01 par value (the "Preferred Stock"), of the Corporation and

hereby states the designation and number of shares, and fixes the relative

rights, preferences and limitations thereof as follows:

 

        Series A Junior Participating Preferred Stock:

 

        Section 1. Designation and Amount. The shares of such series shall be

designated as "Series A Junior Participating Preferred Stock" (the "Series A

Preferred Stock") and the number of shares constituting the Series A Preferred

Stock shall be Five Hundred Thousand (500,000). Such number of shares may be

increased or decreased by resolution of the Board of Directors; provided, that

no decrease shall reduce the number of shares of Series A Preferred Stock to a

number less than the number of shares then outstanding plus the number of shares

reserved for issuance upon the exercise of outstanding options, rights or

warrants or upon the conversion of any outstanding securities issued by the

Corporation convertible into Series A Preferred Stock.

 

 

                                       1

<PAGE>

 

Section 2.     Dividends and Distributions.

               ----------------------------

 

           (A) Subject to the rights of the holders of any shares of any series

of Preferred Stock (or any similar stock) ranking prior and superior to the

Series A Preferred Stock with respect to dividends, the holders of shares of

Series A Preferred Stock, in preference to the holders of Common Stock, par

value $.01 per share (the "Common Stock"), of the Corporation, and of any other

junior stock, shall be entitled to receive, when, as and if declared by the

Board of Directors out of funds of the Corporation legally available for the

payment of dividends, quarterly dividends payable in cash on the last day of

each fiscal quarter of the Corporation in each year (each such date being

referred to herein as a "Quarterly Dividend Payment Date"), commencing on the

first Quarterly Dividend Payment Date after the first issuance of a share or

fraction of a share of Series A Preferred Stock, in an amount per share (rounded

to the nearest cent) equal to the greater of (a) $10 or (b) subject to the

provision for adjustment hereinafter set forth, 1,000 times the aggregate per

share amount of all cash dividends, and 1,000 times the aggregate per share

amount of all cash dividends, and 1,000 times the aggregate per share amount

(payable in kind) of all non-cash dividends or other distributions, other than a

dividend payable in shares of Common Stock or a subdivision of the outstanding

shares of Common Stock (by reclassification or otherwise), declared on the

Common Stock since the immediately preceding Quarterly Dividend Payment Date or,

with respect to the first Quarterly Dividend Payment Date, since the first

issuance of any share or fraction of a share of Series A Preferred Stock. In the

event the Corporation shall at any time declare or pay any dividend on the

Common Stock payable in shares of Common Stock, or effect a subdivision,

combination or consolidation of the outstanding shares of Common Stock (by

reclassification or otherwise than by payment of a dividend in shares of Common

Stock) into a greater or lesser number of shares of Common Stock, then in each

such case the amount to which holders of shares of Series A Preferred Stock were

entitled immediately prior to such event under clause (b) of the preceding

sentence shall be adjusted by multiplying such amount by a fraction, the

numerator of which is the number of shares of Common Stock outstanding

immediately after such event and the

 

 

                                       2

<PAGE>

 

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event. In the event the Corporation shall

at any time declare or pay any dividend on the Series A Preferred Stock payable

in shares of Series A Preferred Stock, or effect a subdivision, combination or

consolidation of the outstanding shares of Series A Preferred Stock (by

reclassification or otherwise than by payment of a dividend in shares of Series

A Preferred Stock) into a greater or lesser number of shares of Series A

Preferred Stock, then in each such case the amount to which holders of shares of

Series A Preferred Stock were entitled immediately prior to such event under

clause (b) of the first sentence of this Section 2 (A) shall be adjusted by

multiplying such amount by a fraction, the numerator of which is the number of

shares of Series A Preferred Stock that were outstanding immediately prior to

such event and the denominator of which is the number of shares of Series A

Preferred Stock outstanding immediately after such event.

 

           (B) The Corporation shall declare a dividend or distribution on the

Series A Preferred Stock as provided in paragraph (A) of this Section

immediately after it declares a dividend or distribution on the Common Stock

(other than a dividend payable in shares of Common Stock) and the Corporation

shall pay such dividend or distribution on the Series A Preferred Stock before

the dividend or distribution declared on the Common Stock is paid or set apart;

provided that, in the event no dividend or distribution shall have been declared

on the Common Stock during the period between any Quarterly Dividend Payment

Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $10

per share on the Series A Preferred Stock shall nevertheless be payable on such

subsequent Quarterly Dividend Payment Date.

 

           (C) Dividends shall begin to accrue and be cumulative on outstanding

shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next

preceding the date of issue of such shares, unless the date of issue of such

shares is prior to the record date for the first Quarterly Dividend Payment

Date, in which case dividends on such shares shall begin to accrue from the date

of issue of such shares, or unless the date of

 

 

                                       3

<PAGE>

 

issue is a Quarterly Dividend Payment Date or is a date after the record

date for the determination of holders of shares of Series A Preferred Stock

entitled to receive a quarterly dividend and before such Quarterly Dividend

Payment Date, in either of which events such dividends shall begin to accrue and

be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid

dividends shall not bear interest. Dividends paid on the shares of Series A

Preferred Stock in an amount less than the total amount of such dividends at the

time accrued and payable on such shares shall be allocated pro rata on a

share-by-share basis among all such shares at the time outstanding. The Board of

Directors may fix a record date for the determination of holders of shares of

Series A Preferred Stock entitled to receive payment of a dividend or

distribution declared thereon, which record date shall be not more than 60 days

prior to the date fixed for the payment thereof.

 

      Section 3.  Voting Rights.  The holders of shares of Series A Preferred

Stock shall have the following voting rights:

 

                  (A) Subject to the provision for adjustment hereinafter set

forth, each share of Series A Preferred Stock shall entitle the holder thereof

to 1,000 votes on all matters submitted to a vote of the stockholders of the

Corporation. In the event the Corporation shall at any time declare or pay any

dividend on the Common Stock payable in shares of Common Stock, or effect a

subdivision, combination or consolidation of the outstanding shares of Common

Stock (by reclassification or otherwise than by payment of a dividend in shares

of Common Stock) into a greater or lesser number of shares of Common Stock, then

in each such case the number of votes per share to which holders of shares of

Series A Preferred Stock were entitled immediately prior to such event shall be

adjusted by multiplying such number by a fraction, the numerator of which is the

number of shares of Common Stock outstanding immediately after such event and

the denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event. In the event the Corporation shall

at any time declare or pay any dividend on the Series A Preferred Stock payable

in shares of Series A Preferred Stock, or affect a subdivision, combination or

 

 

                                       4

<PAGE>

 

consolidation of the outstanding shares of Series A Preferred Stock (by

reclassification or otherwise than by payment of a dividend in shares of Series

A Preferred Stock) into a greater or lesser number of shares of Series A

Preferred Stock, then in each such case the number of votes per share to which

holders of shares of Series A Preferred Stock were entitled immediately prior to

such event shall be adjusted by multiplying such amount by a fraction, the

numerator of which is the number of shares of Series A Preferred Stock that were

outstanding immediately prior to such event and the denominator of which is the

number of shares of Series A Preferred Stock outstanding immediately after such

event.

 

                  (B) Except as otherwise provided herein, in the Certificate of

Incorporation or by law, the holders of shares of Series A Preferred Stock and

the holders of shares of Common Stock and any other capital stock of the

Corporation having general voting rights shall vote together as one class on all

matters submitted to a vote of stockholders of the Corporation.

 

                  (C) (i)  If at any time dividends on any Series A Preferred

Stock shall be in arrears in an amount equal to six quarterly dividends thereon,

the holders of the Series A Preferred Stock, voting as a separate series from

all other series of Preferred Stock and classes of capital stock, shall be

entitled to elect two members of the Board of Directors in addition to any

Directors elected by any other series, class or classes of securities and the

authorized number of Directors will automatically be increased by two. Promptly

thereafter, the Board of Directors of this Corporation shall, as soon as may be

practicable, call a special meeting of holders of Series A Preferred Stock for

the purpose of electing such members of the Board of Directors. Said special

meeting shall in any event be held within 45 days of the occurrence of such

arrearage.

 

                      (ii) During any period when the holders of Series A

Preferred Stock, voting as a separate series, shall be entitled and shall have

exercised their right to elect two Directors, then and during such time as such

right continues (a) the then authorized number of Directors shall be increased

by two, and the holders of

 

 

                                       5

<PAGE>

 

Series A Preferred Stock, voting as a separate series, shall be entitled

to elect the additional Directors so provided for, and (b) each such additional

Director shall not be a member of any existing class of the Board of Directors,

but shall serve until the next annual meeting of stockholders of the election of

Directors, or until his successor shall be elected and shall qualify, or until

his right to hold such office terminates pursuant to the provisions of this

Section 3 (C).

 

                        (iii) A Director elected pursuant to the terms hereof

may be removed with or without cause by the holders of Series A Preferred Stock

entitled to vote in an election of such Director.

 

                         (iv) If, during any interval between annual meetings of

stockholders for the

election of Directors and while the holders of Series A Preferred Stock shall be

entitled to elect two Directors, there is no Director in office by reason of

resignation, death or removal, then, promptly thereafter, the Board of Directors

shall call a special meeting of the holders of Series A Preferred Stock for the

purpose of filing such vacancy and such vacancy shall be filled at such special

meeting. Such special meeting shall in any event be held within 45 days of the

occurrence of such vacancy.

 

                          (v) At such time as the arrearage is fully cured, and

all dividends accumulated

and unpaid on any shares of Series A Preferred Stock outstanding are paid, and,

in addition thereto, at least one regular dividend has been paid subsequent to

curing such arrearage, the term of office of any Director elected pursuant to

this Section 3 (C), or his successor, shall automatically terminate, and the

authorized number of Directors shall automatically decrease by two, the rights

of the holders of the shares of the Series A Preferred Stock to vote as provided

in this Section 3 (C) shall cease, subject to renewal from time to time upon the

same terms and conditions, and the holders of shares of the Series A Preferred

Stock shall have only the limited voting rights elsewhere herein set forth.

 

                  (D) Except as set forth herein, or as otherwise provided by

law, holders of Series A Preferred Stock

 

 

                                       6

<PAGE>

 

shall have no special voting rights and their consent shall not be

required (except to the extent they are entitled to vote with holders of Common

Stock as set forth herein) for taking any corporate action.

 

Section 4.     Certain Restrictions.

               --------------------

 

                  (A) Whenever quarterly dividends or other dividends or

distributions payable on the Series A Preferred Stock as provided in Section 2

are in arrears, thereafter and until all accrued and unpaid dividends and

distributions, whether or not declared, on shares of Series A Preferred Stock

outstanding shall have been paid in full, the Corporation shall not:

 

                        (i)   declare or pay dividends, or make any other

distributions, on any shares of stock ranking junior (either as to dividends or

upon liquidation, dissolution or winding up) to the Series A Preferred Stock;

 

                        (ii)  declare or pay dividends, or make any other

distributions, on any shares of stock ranking on a parity (either as to

dividends or upon liquidation, dissolution or winding up) with the Series A

Preferred Stock, except dividends paid ratably on the Series A Preferred Stock

and all such parity stock on which dividends are payable or in arrears in

proportion to the total amounts to which the holders of all such shares are

then entitled;

 

                        (iii) redeem or purchase or otherwise acquire for

consideration shares of any stock ranking junior (either as to dividends or upon

liquidation, dissolution or winding up) to the Series A Preferred Stock,

provided that the Corporation may at any time redeem, purchase or otherwise

acquire shares of any such junior stock in exchange for shares of any stock of

the Corporation ranking junior (either as to dividends or upon dissolution,

liquidation or winding up) to the Series A Preferred Stock; or

 

                        (iv)  redeem or purchase or otherwise acquire for

consideration any shares of Series A Preferred Stock, or any shares of stock

ranking on a parity with the Series A Preferred Stock, except in accordance with

 

 

                                       7

<PAGE>

 

a purchase offer made in writing or by publication (as determined by the

Board of Directors) to all holders of such chares upon such terms as the Board

of Directors, after consideration of the respective annual dividend rates and

other relative rights and preferences of the respective series and classes,

shall determine in good faith will result in fair and equitable treatment among

the respective series or classes.

 

                  (B) The Corporation shall not permit any subsidiary of the

Corporation to purchase or otherwise acquire for consideration any shares of

stock of the Corporation unless the Corporation could, under paragraph (A) of

this Section 4, purchase or otherwise acquire such shares at such time and in

such manner.

 

      Section 5. Reacquired Shares. Any shares of Series A Preferred Stock

purchased or otherwise acquired by the Corporation in any manner whatsoever

shall be retired and cancelled promptly after the acquisition thereof. All such

shares shall upon their cancellation become authorized but unissued shares of

Preferred Stock and may be reissued as part of a new series of Preferred Stock

subject to the conditions and restrictions on issuance set forth herein, in the

Certificate of Incorporation, or in any other Certificate of Designations

creating a series of Preferred Stock or any similar stock or as otherwise

required by law.

 

      Section 6. Liquidation, Dissolution or Winding Up.

 

                  (A) Upon any liquidation, dissolution or winding up of the

Corporation, no distribution shall be made (1) to the holders of shares of stock

ranking junior (either as to dividends or upon liquidation, dissolution or

winding up) to the Series A Preferred Stock unless, prior thereto, the holders

of shares of Series A Preferred Stock shall have received $10 per share, plus an

amount equal to accrued and unpaid dividends and distributions thereon, whether

or not declared, to the date of such payment, provided that the holders of

shares of Series A Preferred Stock shall be entitled to receive an aggregate

amount per share, subject to the provision for adjustment hereinafter set forth,

equal to 1,000 times the aggregate amount to be distributed per share to holders

of shares of Common Stock, or (2) to the holders of shares of stock ranking on a

parity (either as to dividends or upon liquidation, dissolution

 

 

                                       8

<PAGE>

 

or winding up) with the Series A Preferred Stock, except distributions made

ratably on the Series A Preferred Stock and all such parity stock in proportion

to the total amounts to which the holders of all such shares are entitled upon

such liquidation, dissolution or winding up.

 

                  (B) Neither the consolidation, merger or other business

combination of the Corporation with or into any other corporation nor the sale,

lease, exchange or conveyance of all or any part of the property, assets or

business of the Corporation shall be deemed to be a liquidation, dissolution or

winding up of the Corporation for purposes of this Section 6.

 

                  (C) In the event the Corporation shall at any time declare or

pay any dividend on the Common Stock payable in shares of Common Stock, or

effect a subdivision, combination or consolidation of the outstanding shares of

Common Stock (by reclassification or otherwise than by payment of a dividend in

shares of Common Stock) into a greater or lesser number of shares of Common

Stock, then in each such case the aggregate amount to which holders of shares of

Series A Preferred Stock were entitled immediately prior to such event under the

proviso in clause (1) of paragraph (A) of this Section 6 shall be adjusted by

multiplying such amount by a fraction the numerator of which is the number of

shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event. In the event the Corporation shall

at any time declare or pay any dividend on the Series A Preferred Stock payable

in shares of Series A Preferred Stock, or effect a subdivision, combination or

consolidation of the outstanding shares of Series A Preferred Stock (by

reclassification or otherwise then by payment of a dividend in shares of Series

A Preferred Stock) into a greater or lesser number of shares of Series A

Preferred Stock, then in each such case the aggregate amount to which holders of

shares of Series A Preferred Stock were entitled immediately prior to such event

under the proviso in clause (1) of paragraph (A) of this Section 4 shall be

adjusted by multiplying such amount by a fraction, the numerator of which is the

number of shares of Series A Preferred Stock that were

 

 

                                       9

<PAGE>

 

outstanding immediately prior to such event and the denominator of which is the

number of shares of Series A Preferred Stock outstanding immediately after such

event.

 

        Section 7.  Consolidation, Merger, etc. Notwithstanding anything to the

contrary contained herein, in case the Corporation shall enter into any

consolidation, merger, combination or other transaction in which the shares of

Common Stock are exchanged for or changed into other stock or securities, cash

and/or any other property, then in any such case each share of Series A

Preferred Stock shall at the same time be similarly exchanged or changed into an

amount per share, subject to the provision for adjustment hereinafter set forth,

equal to 1,000 times the aggregate amount of stock, securities, cash and/or any

other property (payable in kind), as the case may be, into which or for which

each share of Common Stock is changed or exchanged. In the event the Corporation

shall at any time declare or pay any dividend on the Common Stock payable in

shares of Common Stock, or effect a subdivision, combination or consolidation of

the outstanding shares of Common Stock (by reclassification or otherwise than by

payment of a dividend in shares of Common Stock) into a greater or lesser number

of shares of Common Stock, then in each such case the amount set forth in the

preceding sentence with respect to the exchange or change of shares of Series A

Preferred Stock shall be adjusted by multiplying such amount by a fraction, the

numerator of which is the number of shares of Common Stock outstanding

immediately after such event and the denominator of which is the number of

shares of Common Stock that were outstanding immediately prior to such event. In

the event the Corporation shall at any time declare or pay any dividend on the

Series A Preferred Stock payable in shares of Series A Preferred Stock, or

effect a subdivision, combination or consolidation of the outstanding shares of

Series A Preferred Stock (by reclassification or otherwise than by payment of a

dividend in shares of Series A Preferred Stock) into a greater or lesser number

of shares of Series A Preferred Stock, then in each such case the amount set

forth in the first sentence of this Section 7 with respect to the exchange or

change of shares of Series A Preferred Stock shall be adjusted by multiplying

such amount by a fraction, the numerator of which is the number of shares of

Series A Preferred Stock that were outstanding immediately prior to such event

and the denominator of which is the number of shares of Series A Preferred Stock

outstanding immediately after such event.

 

 

 

                                       10

<PAGE>

 

        Section 8.  No Redemption.The shares of Series A Preferred Stock shall

not be redeemable.

 

        Section 9.  Rank. The Series A Preferred Stock shall rank, with respect

to the payment of dividends and the distribution of assets, junior to all series

of any other class of the Preferred Stock issued either before or after the

issuance of the Series A Preferred Stock, unless the terms of any such series

shall provide otherwise.

 

        Section 10. Amendment. The Certificate of Incorporation, as amended, of

the Corporation shall be not amended in any manner which would materially alter

or change the powers, preferences or special rights of the Series A Preferred

Stock so as to affect them adversely without the affirmative vote of the holders

of at least two-thirds of the outstanding shares of Series A Preferred Stock,

voting together as a single class.

 

        Section 11. Fractional Shares. Series A Preferred Stock may be issued in

fractions of a share which shall entitle the holder, in proportion to such

holder's fractional shares, to exercise voting rights, receive dividends,

participate in distributions and have the benefit of all other rights of holders

of Series A Preferred Stock.

 

        IN WITNESS WHEREOF, this Certificate of Designations is executed on

behalf of the Corporation by its President and attested by its Assistant

Secretary this 4th day of March, 1996.

 

 

                                                 AVID TECHNOLOGY, INC.

 

                                                 By: /S/ Curt A. Rawley

                                                     ------------------

                                                     Vice Chairman

 

 

 

 

ATTEST:

 

 

By: /S/ Mark G. Borden

    ------------------

     Assistant Secretary

 

[As Filed: 11-14-2005]