EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CORTELCO SYSTEMS, INC.
J. MICHAEL O'DELL hereby certifies that:
1. The original name of this corporation is CTC, Inc. and the date of filing
the original Certificate of Incorporation of this corporation with the
Secretary of State of the State of Delaware is July 23, 1991.
2. He is the duly elected and acting President of Cortelco Systems, Inc., a
Delaware corporation.
3. The Certificate of Incorporation of this corporation is hereby amended and
restated to read as follows:
I.
The name of this corporation is Cortelco Systems, Inc. (the "Corporation").
II.
The address of the registered office of the Corporation in the State of
Delaware is:
The Prentice-Hall Corporation System, Inc.
1013 Centre Road
Wilmington, Delaware 19805
County of New Castle
The name of the Corporation's registered agent at said address is The
Prentice-Hall Corporation System, Inc.
III.
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
IV.
A. AUTHORIZED STOCK. This corporation is authorized to issue two classes
of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares which the corporation is authorized to issue is
60,000,000 shares. 50,000,000 shares shall be Common Stock, each having a par
value of one-tenth of one cent ($0.001). 10,000,000 shares shall be Preferred
Stock, each having a par value of one-tenth of one cent ($0.001).
1.
B. PREFERRED STOCK. The Preferred Stock may be issued from time to time
in one or more series. The Board of Directors is hereby authorized, by filing a
certificate (a "Preferred Stock Designation") pursuant to the Delaware General
Corporation Law ("DGCL"), to fix or alter from time to time the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions of any wholly unissued series of
Preferred Stock, and to establish from time to time the number of shares
constituting any such series or any of them; and to increase or decrease the
number of shares of any series subsequent to the issuance of shares of that
series, but not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be decreased in accordance with
the foregoing sentence, the shares constituting such decrease shall resume the
status that they had prior to the adoption of the resolution originally fixing
the number of shares of such series.
V.
For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. BOARD OF DIRECTORS.
1. POWERS. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of Directors.
2. NUMBER OF DIRECTORS. The number of directors which shall
constitute the whole Board of Directors shall be fixed exclusively by one or
more resolutions adopted by the Board of Directors.
3. ELECTION OF DIRECTORS. Subject to the rights of the holders of
any series of Preferred Stock to elect additional directors under specified
circumstances, following the closing of the initial public offering pursuant to
an effective registration statement under the Securities Act of 1933, as amended
(the "1933 Act"), covering the offer and sale of Common Stock to the public (the
"Initial Public Offering"), the directors shall be divided into three classes
designated as Class I, Class II and Class III, respectively. Directors shall be
assigned to each class in accordance with a resolution or resolutions adopted by
the Board of Directors. At the first annual meeting of stockholders following
the closing of the Initial Public Offering, the term of office of the Class I
directors shall expire and Class I directors shall be elected for a full term of
three years. At the second annual meeting of stockholders following the closing
of the Initial Public Offering, the term of office of the Class II directors
shall expire and Class II directors shall be elected for a full term of three
years. At the third annual meeting of stockholders following the closing of the
Initial Public Offering, the term of office of the Class III directors shall
expire and Class III directors shall be elected for a full term of three years.
At each succeeding annual meeting of stockholders, directors shall be elected
for a full term of three years to succeed the directors of the class whose terms
expire at such annual meeting.
2.
Notwithstanding the foregoing provisions of this section, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
4. REMOVAL OF DIRECTORS.
A. Neither the Board of Directors nor any individual director
may be removed without cause.
B. Subject to any limitation imposed by law, any individual
director or directors may be removed with cause by the holders of a majority of
the voting power of the corporation entitled to vote at an election of
directors.
5. VACANCIES.
A. Subject to the rights of the holders of any series of
Preferred Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the stockholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the director for which the vacancy was created or occurred and until such
director's successor shall have been elected and qualified.
B. If at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Delaware Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent (10%) of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in offices as aforesaid, which election shall be governed by Section 211 of the
DGCL.
B.
1. BYLAW AMENDMENTS. Subject to paragraph (h) of Section 43 of the
Bylaws, the Bylaws may be altered or amended or new Bylaws adopted by the
affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the
voting power of all of the then-outstanding shares of the voting stock of the
corporation entitled to vote. The Board of Directors shall also have the power
to adopt, amend, or repeal Bylaws.
2. ELECTION OF DIRECTORS BY WRITTEN BALLOT. The directors of the
corporation need not be elected by written ballot unless the Bylaws so provide.
3.
3. ACTION BY WRITTEN CONSENT OF THE STOCKHOLDERS. No action shall be
taken by the stockholders of the corporation except at an annual or special
meeting of stockholders called in accordance with the Bylaws or by written
consent of stockholders in accordance with the Bylaws prior to the closing of
the Initial Public Offering and following the closing of the Initial Public
Offering no action shall be taken by the stockholders by written consent.
4. NOTICE OF MEETINGS. Advance notice of stockholder nominations for
the election of directors and of business to be brought by stockholders before
any meeting of the stockholders of the corporation shall be given in the manner
provided in the Bylaws of the corporation.
VI.
A. DIRECTOR LIABILITY. The liability of the directors for monetary
damages shall be eliminated to the fullest extent under applicable law.
B. MODIFICATIONS TO INDEMNIFICATION PROVISIONS. Any repeal or
modification of this Article VI shall be prospective and shall not affect the
rights under this Article VI in effect at the time of the alleged occurrence of
any act or omission to act giving rise to liability or indemnification.
VII.
A. 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, except as provided in paragraph B. of this
Article VII, and all rights conferred upon the stockholders herein are granted
subject to this reservation.
B. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the voting stock, voting together
as a single class, shall be required to alter, amend or repeal Articles V, VI,
and VII.
* * *
4. This Amended and Restated Certificate of Incorporation has been duly
approved by the Board of Directors of this Corporation.
5. This Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Sections 228, 242 and 245 of
the General Corporation Law of the State of Delaware by the Board of
Directors and the stockholders of the Corporation. The total number of
outstanding shares entitled to vote or act by written
4.
consent was 9,081,695 shares of Common Stock and 1,463,206 shares of Series
A Preferred stock. The number of shares voting in favor of the amendment
and restatement equaled or exceeded the vote required. Such vote approved
this Amended and Restated Certificate of Incorporation by written consent
in accordance with Section 228 of the General Corporation Law of the State
of Delaware and written notice of such was given by the Corporation in
accordance with said Section 228.
5.
IN WITNESS WHEREOF, Cortelco Systems, Inc. has entered this Amended and
Restated Certificate of Incorporation to be signed by its President in Palo
Alto, California, this _______________, 1999.
CORTELCO SYSTEMS, INC.
By: ____________________________
J. Michael O'Dell
President
6.