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Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
AVAYA INC.
The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on February 16, 2000, under
the name "Lucent EN Corp." On June 27, 2000, pursuant to a Certificate of
Ownership and Merger filed with the Secretary of State of the State of Delaware,
Avaya Inc., a Delaware corporation was merged with and into Lucent EN Corp. The
name of the surviving corporation was, as of that date, changed to "Avaya Inc."
This Restated Certificate of Incorporation has been duly proposed by
resolutions adopted and declared advisable by the Board of Directors of the
Corporation, duly adopted by the sole stockholder of the Corporation and duly
executed and acknowledged by the officers of the Corporation in accordance with
Sections 103, 228, 242 and 245 of the General Corporation Law of the State of
Delaware.
The text of the Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
NAME
SECTION 1.01. The name of the Corporation (which is hereinafter
referred to as the "CORPORATION") is "Avaya Inc."
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ARTICLE II
REGISTERED AGENT
SECTION 2.01. The address of the Corporation's registered office in the
State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware
19808. The name of the Corporation's registered agent at such address is The
United States Corporation Company.
ARTICLE III
PURPOSE
SECTION 3.01. The purpose of the Corporation shall be to engage in any
lawful act or activity for which corporations may be organized and incorporated
under the General Corporation Law of the State of Delaware (the "DGCL").
ARTICLE IV
CAPITAL STOCK
SECTION 4.01. The Corporation shall be authorized to issue
1,700,000,000 shares of capital stock, of which 1,500,000,000 shares shall be
shares of common stock, $0.01 par value ("COMMON STOCK"), and 200,000,000 shares
shall be shares of preferred stock, $1.00 par value ("PREFERRED STOCK").
SECTION 4.02. The Preferred Stock may be issued from time to time in
one or more series. The Board of Directors of the Corporation (the "BOARD OF
DIRECTORS" and each member thereof, a "DIRECTOR") is hereby authorized to
provide for the issuance of shares of Preferred Stock in series and, by filing a
certificate pursuant to the DGCL (a "PREFERRED STOCK Designation"), to establish
from time to time the number of shares to be included in each such series, and
to fix the designation, powers, privileges, preferences and rights of the shares
of each such series and the qualifications, limitations and restrictions
thereof. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(a) the designation of the series, which may be by distinguishing
number, letter or title;
(b) the number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the
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Preferred Stock Designation) increase or decrease (but not below the number of
shares thereof then outstanding);
(c) whether dividends, if any, shall be cumulative or noncumulative,
and, in the case of shares of any series having cumulative dividend rights, the
date or dates or method of determining the date or dates from which dividends on
the shares of such series shall be cumulative;
(d) the rate of any dividends (or method of determining such dividends)
payable to the holders of the shares of such series, any conditions upon which
such dividends shall be paid and the date or dates or the method for determining
the date or dates upon which such dividends shall be payable;
(e) the price or prices (or method of determining such price or prices)
at which, the form of payment of such price or prices (which may be cash,
property or rights, including securities of the same or another corporation or
other entity) for which, the period or periods within which and the terms and
conditions upon which the shares of such series may be redeemed, in whole or in
part, at the option of the Corporation or at the option of the holder or holders
thereof or upon the happening of a specified event or events, if any;
(f) the obligation, if any, of the Corporation to purchase or redeem
shares of such series pursuant to a sinking fund or otherwise and the price or
prices at which, the form of payment of such price or prices (which may be cash,
property or rights, including securities of the same or another corporation or
other entity) for which, the period or periods within which and the terms and
conditions upon which the shares of such series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(g) the amount payable out of the assets of the Corporation to the
holders of shares of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation;
(h) provisions, if any, for the conversion or exchange of the shares of
such series, at any time or times at the option of the holder or holders thereof
or at the option of the Corporation or upon the happening of a specified event
or events, into shares of any other class or classes or any other series of the
same or any other class or classes of stock, or any other security, of the
Corporation, or any other corporation or
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other entity, and the price or prices or rate or rates of conversion or exchange
and any adjustments applicable thereto, and all other terms and conditions upon
which such conversion or exchange may be made;
(i) restrictions on the issuance of shares of the same series or of any
other class or series, if any; and
(j) the voting rights, if any, of the holders of shares of the series.
SECTION 4.03. The Common Stock shall be subject to the express terms of
the Preferred Stock and any series thereof. The holders of shares of Common
Stock shall be entitled to one vote for each such share upon all proposals
presented to the stockholders on which the holders of Common Stock are entitled
to vote. Except as otherwise provided by law or by the resolution or resolutions
adopted by the Board of Directors designating the rights, powers and preferences
of any series of Preferred Stock, the Common Stock shall have the exclusive
right to vote for the election of Directors and for all other purposes, and
holders of Preferred Stock shall not be entitled to receive notice of any
meeting of stockholders at which they are not entitled to vote. The number of
authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the outstanding Common Stock, without a vote of the
holders of the Preferred Stock, or of any series thereof, unless a vote of any
such holders is required pursuant to any Preferred Stock Designation. The
Corporation shall be entitled to treat the person in whose name any share of its
stock is registered as the owner thereof for all purposes and shall not be bound
to recognize any equitable or other claim to, or interest in, such share on the
part of any other person, whether or not the Corporation shall have notice
thereof, except as expressly provided by applicable law.
SECTION 4.04. Pursuant to the authority conferred by this Article IV
upon the Board of Directors of the Corporation, the Board of Directors created a
series of 4,000,000 shares of Preferred Stock designated as Series B Convertible
Participating Preferred Stock by filing a Certificate of Designations of the
Corporation with the Secretary of State on September 12, 2000, and the voting
powers, designations, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, of
the Corporation's Series B Convertible Participating Preferred Stock are set
forth in Exhibit A hereto and are incorporated herein by reference.
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ARTICLE V
STOCKHOLDER ACTION
SECTION 5.01. Effective as of the time at which Lucent Technologies
Inc., a Delaware corporation, shall cease to be the beneficial owner of an
aggregate of at least a majority of the then outstanding shares of Common Stock
(the "TRIGGER DATE"), 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 such holders and may not be effected by any consent in
writing by such holders. Effective as of the Trigger Date, except as otherwise
required by law and subject to the rights of the holders of any class or series
of stock having a preference over the Common Stock as to dividends or upon
liquidation, special meetings of stockholders of the Corporation for any purpose
or purposes may be called only by the Board of Directors pursuant to a
resolution stating the purpose or purposes thereof approved by a majority of the
total number of Directors which the Corporation would have if there were no
vacancies (the "WHOLE BOARD") or by the Chairman of the Board of Directors. No
business other than that stated in the notice shall be transacted at any special
meeting. Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of all shares of the Corporation entitled to vote
generally in the election of Directors (the "VOTING Stock") then outstanding,
voting together as a single class, shall be required to alter, amend, adopt any
provision inconsistent with or repeal this Article V.
ARTICLE VI
ELECTION OF DIRECTORS
SECTION 6.01. Unless and except to the extent that the By-laws of the
Corporation (the "By-laws") shall so require, the election of Directors of the
Corporation need not be by written ballot.
ARTICLE VII
BOARD OF DIRECTORS
SECTION 7.01. NUMBER, ELECTION AND TERMS. Except as otherwise fixed by
or pursuant to the provisions of Article IV hereof relating to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect additional Directors under
specified circumstances, the number of the Directors shall be fixed from time to
time exclusively pursuant to a resolution adopted by a majority of the Whole
Board (but shall not be less
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than three). The Directors, other than those who may be elected by the holders
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, one class to be originally elected for a term expiring at the first
annual meeting of stockholders following the effectiveness of this Restated
Certificate of Incorporation, another class to be originally elected for a term
expiring at the second annual meeting of stockholders following the
effectiveness of this Restated Certificate of Incorporation, and another class
to be originally elected for a term expiring at the third annual meeting of
stockholders following the effectiveness of this Restated Certificate of
Incorporation, with each class to hold office until its successor is duly
elected and qualified. At each annual meeting of stockholders, Directors elected
to succeed those Directors whose terms then expire shall be elected for a term
of office to expire at the third succeeding annual meeting of stockholders after
their election, with each Director to hold office until such person's successor
shall have been duly elected and qualified.
SECTION 7.02. STOCKHOLDER NOMINATION OF DIRECTOR CANDIDATES;
STOCKHOLDER PROPOSAL OF BUSINESS. Advance notice of stockholder nominations for
the election of Directors and of the proposal of business by stockholders shall
be given in the manner provided in the By-laws, as amended and in effect from
time to time.
SECTION 7.03. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as
otherwise provided for or fixed by or pursuant to the provisions of Article IV
hereof relating to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect Directors under specified circumstances, newly created directorships
resulting from any increase in the number of Directors and any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal
or other cause shall be filled by the affirmative vote of a majority of the
remaining 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 class of Directors in which the new directorship was created or the
vacancy occurred and until such Director's successor shall have been duly
elected and qualified. No decrease in the number of Directors constituting the
Board of Directors shall shorten the term of any incumbent Director.
SECTION 7.04. REMOVAL. Subject to the rights of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect Directors under specified
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circumstances, any Director may be removed from office only for cause by the
affirmative vote of the holders of at least a majority of the voting power of
all Voting Stock then outstanding, voting together as a single class.
SECTION 7.05. AMENDMENT, REPEAL, etc. Notwithstanding anything
contained in this Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the voting power of all
Voting Stock then outstanding, voting together as a single class, shall be
required to alter, amend, adopt any provision inconsistent with or repeal this
Article VII.
ARTICLE VIII
BY-LAWS
SECTION 8.01. The By-laws may be altered or repealed and new By-laws
may be adopted (a) at any annual or special meeting of stockholders, by the
affirmative vote of the holders of a majority of the voting power of the Voting
Stock then outstanding, voting together as a single class; PROVIDED, HOWEVER,
that any proposed alteration or repeal of, or the adoption of any By-law
inconsistent with, Section 2.02 or 2.07 of the By-laws or this sentence, by the
stockholders shall require the affirmative vote of the holders of at least 80%
of the voting power of all Voting Stock then outstanding, voting together as a
single class; PROVIDED, FURTHER, HOWEVER, that in the case of any such
stockholder action at a special meeting of stockholders, notice of the proposed
alteration, repeal or adoption of the new By-law or By-laws must be contained in
the notice of such special meeting, or (b) by the affirmative vote of a majority
of the Whole Board. Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the voting power of all Voting Stock then
outstanding, voting together as a single class shall be required to alter,
amend, adopt any provision inconsistent with or repeal this Article VIII.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
SECTION 9.01. The Corporation reserves the right at any time from time
to time to amend, alter, change or repeal any provision contained in this
Restated Certificate of Incorporation, and any other provisions authorized by
the laws of the State of Delaware at the time in force may be added or inserted,
in the manner now or hereafter prescribed by law; and, except as set forth in
Article X, all rights,
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preferences and privileges of whatsoever nature conferred upon stockholders,
Directors or any other persons whomsoever by and pursuant to this Restated
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article. Notwithstanding anything
contained in this Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the Voting Stock then
outstanding, voting together as a single class, shall be required to alter,
amend, adopt any provision inconsistent with or repeal Article V, VII, VIII or
this sentence.
ARTICLE X
LIMITED LIABILITY; INDEMNIFICATION
SECTION 10.01. LIMITED LIABILITY OF DIRECTORS. A Director shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except, if required by the DGCL, as
amended from time to time, for liability (a) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the DGCL, or (d) for any transaction
from which the Director derived an improper personal benefit. Neither the
amendment nor repeal of this Section 10.01 shall eliminate or reduce the effect
of this Section 10.01 in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Section 10.01 would accrue or arise,
prior to such amendment or repeal.
SECTION 10.02. INDEMNIFICATION AND INSURANCE. (a) RIGHT TO
INDEMNIFICATION. Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "PROCEEDING"), by
reason of the fact that such person, or a person of whom such person is the
legal representative, is or was a Director or officer of the Corporation or,
while a Director or officer of the Corporation, is or was serving at the request
of the Corporation as a Director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a Director,
officer, employee or agent or in any other capacity while serving as a Director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended, against all expense, liability and loss (including
attorneys' fees, judgments, fines, amounts paid or to be paid in settlement, and
excise taxes or penalties arising under the Employee
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Retirement Income Security Act of 1974, as in effect from time to time)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of such person's
heirs, executors and administrators; PROVIDED, HOWEVER, that, except as provided
in paragraph (b) hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors. The Corporation shall pay the expenses incurred in defending
any such proceeding in advance of its final disposition; any advance payments to
be paid by the Corporation within 20 calendar days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; PROVIDED, HOWEVER, that, if and to the
extent the DGCL requires, the payment of such expenses incurred by a Director or
officer in such person's capacity as a Director or officer (and not in any other
capacity in which service was or is rendered by such person while a Director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such Director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such Director or officer is not entitled to be indemnified under
this Section 10.02 or otherwise. The Corporation may, to the extent authorized
from time to time by the Board of Directors, grant rights to indemnification,
and rights to have the Corporation pay the expenses incurred in defending any
proceeding in advance of its final disposition, to any employee or agent of the
Corporation to the fullest extent of the provisions of this Article with respect
to the indemnification and advancement of expenses of Directors and officers of
the Corporation.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph (a) of
this Section 10.02 is not paid in full by the Corporation within 30 calendar
days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
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stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 10.02 shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Restated Certificate of Incorporation, By-law, agreement, vote
of stockholders or disinterested Directors or otherwise. No repeal or
modification of this Article shall in any way diminish or adversely affect the
rights of any Director, officer, employee or agent of the Corporation hereunder
in respect of any occurrence or matter arising prior to any such repeal or
modification.
(d) INSURANCE. The Corporation may 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 against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
(e) SEVERABILITY. If any provision or provisions of this Article X
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provisions of
this Article X (including, without limitation, each portion of any paragraph of
this Article X containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (ii) to the fullest
extent possible, the provisions of this Article X (including, without
limitation, each such portion of any paragraph of this Article X containing any
such provision held to be invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
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IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of
Incorporation to be signed by its Vice President and General Counsel and
attested by its Assistant Secretary this 28th day of September, 2000.
/s/ Pamela F. Craven
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Name: Pamela F. Craven
Title: Vice President and General Counsel
/s/ Margaret G. Gelsi
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Name: Margaret G. Gelsi
Title: Assistant Secretary this 28th day of September, 2000.