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EXHIBIT 3.1
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
TELLIUM, INC.
Tellium, Inc., a Delaware corporation, the original certificate of
incorporation of which was filed with the Secretary of State of the State of
Delaware on April 21, 1997 under the name MWD, Inc., HEREBY CERTIFIES that this
Restated Certificate of Incorporation, restating, integrating and amending its
Certificate of Incorporation, was duly adopted by its Board of Directors and its
stockholders in accordance with Sections 228, 242 and 245 of the Delaware
General Corporation Law (the "DGCL"). The Certificate of Incorporation of
Tellium, Inc., is hereby amended and restated in its entirety to read as
follows:
ARTICLE I
NAME
The name of the Corporation is Tellium, Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, City of Wilmington, New Castle County, Delaware. The
name of its registered agent at such address is Corporation Trust Center.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is Nine Hundred Twenty-Five Million
(925,000,000) shares, of which:
Nine Hundred Million (900,000,000) shares, par value $.001 per share,
shall be shares of common stock (the "Common Stock"); and
Twenty-Five Million (25,000,000) shares, par value $.001 per share,
shall be shares of preferred stock (the "Preferred Stock").
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(A) Common Stock. Except as (1) otherwise required by law or (2) expressly
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provided in this Restated Certificate of Incorporation (as amended from time to
time), each share of Common Stock shall have the same powers, rights and
privileges and shall rank equally, share ratably and be identical in all
respects as to all matters.
(1) Dividends. Subject to the rights of the holders of Preferred
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Stock, and to the other provisions of this Restated Certificate of Incorporation
(as amended from time to time), holders of Common Stock shall be entitled to
receive equally, on a per share basis, such dividends and other distributions in
cash, securities or other property of the Corporation as may be declared thereon
by the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefore.
(2) Voting Rights. At every annual or special meeting of stockholders
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of the Corporation, each holder of Common Stock shall be entitled to cast one
(1) vote for each share of Common Stock standing in such holder's name on the
stock transfer records of the Corporation.
(3) Liquidation Rights. In the event of any liquidation, dissolution
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or winding up of the affairs of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the Corporation's debts
and amounts payable upon shares of Preferred Stock entitled to a preference, if
any, over holders of Common Stock upon such dissolution, liquidation or winding
up, the remaining net assets of the Corporation shall be distributed among
holders of shares of Common Stock equally on a per share basis. A merger or
consolidation of the Corporation with or into any other corporation or other
entity, or a sale or conveyance of all or any part of the assets of the
Corporation (which shall not in fact result in the liquidation of the
Corporation and the distribution of assets to its stockholders) shall not be
deemed to be a voluntary or involuntary liquidation or dissolution or winding up
of the Corporation within the meaning of this Paragraph (A)(3).
(B) Preferred Stock. The Board of Directors is authorized, subject to
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limitations prescribed by law, to provide by resolution or resolutions for the
issuance of shares of Preferred Stock in one or more series, to establish the
number of shares to be included in each such series, and to fix the voting
powers (if any), designations, powers, preferences, and relative, participating,
optional or other rights, if any, of the shares of each such series, and any
qualifications, limitations or restrictions thereof. Irrespective of the
provisions of Section 242(b)(2) of the DGCL, 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 in voting power of the stock of the Corporation entitled to vote,
without the separate vote of the holders of the Preferred Stock as a class.
ARTICLE V
BOARD OF DIRECTORS
(A) Management. The business and affairs of the Corporation shall be
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managed by or under the direction of the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful acts and things as are not by
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statute or this Restated Certificate of Incorporation directed or required to be
exercised or done by the stockholders.
(B) Number of Directors. The number of directors of the Corporation shall
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be fixed from time to time by, or in the manner provided in, the Bylaws;
provided, however, that the number of directors shall not be less than three (3)
nor more than eleven (11).
(C) Classes and Terms of Directors. The directors shall be divided into
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three classes, as nearly equal in number as possible, and no class shall include
less than one director. The initial term of office for members of the first
class shall expire at the annual meeting of stockholders in 2001; the initial
term of office for members of the second class shall expire at the annual
meeting of stockholders in 2002; and the initial term of office for members of
the third class shall expire at the annual meeting of stockholders in 2003. At
each annual meeting of stockholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding annual meeting
of stockholders after their election, and shall continue to hold office until
their respective successors are elected and qualified. In the event of any
increase in the number of directors fixed by the Board of Directors, the
additional directors shall be classified so that all classes of directors have
as nearly equal numbers of directors as may be possible. In the event of any
decrease in the number of directors, all classes of directors shall be decreased
equally as nearly as may be possible.
(D) Newly-Created Directorships and Vacancies. Subject to the rights of
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the holders of any class of Common Stock or series of Preferred Stock then
outstanding, newly created directorships resulting from any increase in the
number of directors or any vacancies in the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office or any
other cause may be filled by the Board of Directors, provided that a quorum is
then in office and present, or by a majority of the directors then in office, if
less than a quorum is then in office, or by the sole remaining director.
Directors elected to fill a newly created directorship or other vacancies 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 has been elected and has qualified.
(E) Removal of Directors. Subject to the rights of the holders of any
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series of Preferred Stock then outstanding, any director may be removed from
office at any time, but only for cause, at a meeting called for that purpose,
and only by the affirmative vote of the holders of at least 66-2/3% of the
voting power of all shares of Common Stock entitled to vote generally in the
election of directors, voting together as a single class.
(F) Rights of Holders of Preferred Stock. Notwithstanding the foregoing
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provisions of this Article V, whenever the holders of one or more series of
Preferred Stock issued by the Corporation shall have the right, voting
separately or together by series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorship shall be governed by the rights of such
Preferred Stock as set forth in the certificate of designations governing such
series.
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(G) Written Ballot Not Required. Elections of directors need not be by
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written ballot unless the Bylaws of the Corporation shall otherwise provide.
(H) Bylaws. The Board of Directors is expressly authorized to adopt, amend
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or repeal the bylaws of the Corporation. Any bylaws made by the directors under
the powers conferred hereby may be amended or repealed by the directors or by
the stockholders. Notwithstanding the foregoing and anything contained in this
Restated Certificate of Incorporation to the contrary, the bylaws of the
Corporation shall not be amended or repealed by the stockholders, and no
provision inconsistent therewith shall be adopted by the stockholders, without
the affirmative vote of the holders of 66-2/3% of the voting power of all shares
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class.
ARTICLE VI
LIMITATION OF LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that the foregoing shall not eliminate or
limit the liability of a director (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 DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit. If the DGCL is hereafter
amended to permit further elimination or limitation of the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the DGCL as so amended.
Any repeal or modification of this Article VI by the stockholders of the
Corporation or otherwise shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
ARTICLE VII
INDEMNIFICATION
Each person who was or is made a party or is threatened to be made a party
to or is involved (including, without limitation, as a witness) in any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he is
or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another corporation or of
a partnership, limited liability company, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "Indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while so serving, shall be indemnified and held harmless by the Corporation to
the full extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such amendment), or by
other applicable law as then in effect, against all expense, liability and loss
(including attorneys' fees and related disbursements, judgments, fines, excise
taxes or penalties under the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA"), penalties and amounts paid or to be paid in
settlement) actually and reasonably
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incurred or suffered by such Indemnitee in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer, partner, member or trustee and shall inure to the benefit of his or her
heirs, executors and administrators. Each person who is or was serving as a
director or officer of a subsidiary of the Corporation shall be deemed to be
serving, or have served, at the request of the Corporation.
(A) Procedure. Any indemnification (but not advancement of expenses) under
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this Article VII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in the DGCL, as
the same exists or hereafter may be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment). Such determination shall be made with
respect to a person who is a director or officer at the time of such
determination (a) by a majority vote of the directors who were not parties to
such proceeding (the "Disinterested Directors"), even though less than a quorum,
(b) by a committee of Disinterested Directors designated by a majority vote of
Disinterested Directors, even though less than a quorum, (c) if there are no
such Disinterested Directors, or if such Disinterested Directors so direct, by
independent legal counsel in a written opinion, or (d) by the stockholders.
(B) Advances for Expenses. Expenses (including attorneys' fees, costs and
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charges) incurred by a director or officer of the Corporation in defending a
proceeding shall be paid by the Corporation in advance of the final disposition
of such proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay all amounts so advanced in the event that it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article VII. The majority
of the Disinterested Directors may, in the manner set forth above, and upon
approval of such director or officer of the Corporation, authorize the
Corporation's counsel to represent such person, in any proceeding, whether or
not the Corporation is a party to such proceeding.
(C) Procedure for Indemnification. Any indemnification or advance of
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expenses (including attorney's fees, costs and charges) under this Article VII
shall be made promptly, and in any event within 60 days upon the written request
of the director or officer (and, in the case of advance of expenses, receipt of
a written undertaking by or on behalf of Indemnitee to repay such amount if it
shall ultimately be determined that Indemnitee is not entitled to be indemnified
therefor pursuant to the terms of this Article VII). The right to
indemnification or advances as granted by this Article VII shall be enforceable
by the director or officer 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 60 days. Such person's costs and expenses incurred in
connection with successfully establishing his/her right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of expenses (including attorney's
fees, costs and charges) under this Article VII where the required undertaking,
if any, has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in the DGCL, as the same exists or hereafter may
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such
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amendment), but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he/she has met the applicable standard of
conduct set forth in the DGCL, as the same exists or hereafter may be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), nor the fact that
there has been an actual determination by the Corporation (including its Board
of Directors, its independent legal counsel and 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.
(D) Other Rights; Continuation of Right to Indemnification. The
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indemnification and advancement of expenses provided by this Article VII shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law (common
or statutory), bylaw, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his/her official capacity and as to action in
another capacity while holding office or while employed by or acting as agent
for the Corporation, and shall continue as to a person who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administers of such person. All rights to indemnification under
this Article VII shall be deemed to be a contract between the Corporation and
each director or officer of the Corporation who serves or served in such
capacity at any time while this Article VII is in effect. Any repeal or
modification of this Article VII or any repeal or modification of relevant
provisions of the DGCL or any other applicable laws shall not in any way
diminish any rights to indemnification of such director or officer or the
obligations of the Corporation arising hereunder with respect to any proceeding
arising out of, or relating to, any actions, transactions or facts occurring
prior to the final adoption of such modification or repeal. For the purposes of
this Article VII, references to "the Corporation" include all constituent
corporations absorbed in a consolidation or merger as well as the resulting or
surviving corporation, so that any person who is or was a director or officer of
such a constituent corporation or is or was serving at the request of such
constituent corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article VII, with respect to the resulting
or surviving corporation, as he would if he/she had served the resulting or
surviving corporation in the same capacity.
(E) Insurance. The Corporation shall have power to purchase and maintain
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insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article VII;
provided, however, that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the Board of Directors.
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(F) Savings Clause. If this Article VII or any portion hereof shall be
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invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each person entitled to indemnification
under the first paragraph of this Article VII as to all expense, liability and
loss (including attorneys' fees and related disbursements, judgments, fines,
ERISA excise taxes and penalties, penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such person and for
which indemnification is available to such person pursuant to this Article VII
to the full extent permitted by any applicable portion of this Article VII that
shall not have been invalidated and to the full extent permitted by applicable
law.
ARTICLE VIII
STOCKHOLDER ACTION
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.
ARTICLE IX
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Restated 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. Notwithstanding
any other provision of this Certificate of Incorporation or the Bylaws of the
Corporation, and notwithstanding the fact that a lesser percentage or separate
class vote may be specified by law, this Certificate of Incorporation, the
Bylaws of the Corporation or otherwise, but in addition to any affirmative vote
of the holders of any particular class or series of the capital stock required
by law, this Certificate of Incorporation, the Bylaws of the Corporation or
otherwise, the affirmative vote of the holders of at least 66-2/3% of the voting
power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
adopt any provision inconsistent with, to amend or repeal any provision of, or
to adopt a bylaw inconsistent with, Articles V, VI, VII, VIII or IX of this
Certificate of Incorporation.
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation which
restates, integrates and amends the provisions of the Certificate of
Incorporation of the Corporation, and which has been duly adopted in accordance
with the provisions of Sections 228, 242 and 245 of the DGCL, has been executed
by the undersigned on this ____ day of __________, 2000.
TELLIUM, INC.
By: ________________________
Name: Harry J. Carr
Title: Chief Executive Officer
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