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EXHIBIT 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SONUS NETWORKS, INC.
Sonus Networks, Inc. (the "CORPORATION"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "GENERAL CORPORATION LAW"), hereby certifies as follows:
FIRST: The name of the Corporation is Sonus Networks, Inc. The
original Certificate of Incorporation of the Corporation was filed by the
Corporation with the Secretary of State of Delaware on August 7, 1997. The
original Certificate of Incorporation was subsequently amended and restated on
September 23, 1998, on September 10, 1999 and again on March 9, 2000 (the
original Certificate of Incorporation, as amended and restated, the "ORIGINAL
CERTIFICATE OF INCORPORATION").
SECOND: This Fourth Amended and Restated Certificate of
Incorporation: (i) was duly adopted in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law; and (ii) was approved by
written consent of a majority of the stockholders of the Corporation given in
accordance with the provisions of Section 228 of the General Corporation Law.
THIRD: The text of the Original Certificate of Incorporation
of the Corporation, as heretofore amended, is hereby further restated and
amended to read in its entirety as follows:
FOURTH: This Fourth Amended and Restated Certificate of
Incorporation, in accordance with the provisions of Section 103 of the General
Corporation Laws, shall be effective on May 31, 2000, at 5:00 p.m., Eastern
Time.
ARTICLE I
NAME
The name of the corporation (the "CORPORATION") is Sonus Networks, Inc.
ARTICLE II
REGISTERED AGENT
The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road in the City of Wilmington, County of New
Castle; and the name of its registered agent is Corporation Service Company.
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ARTICLE III
PURPOSE
The nature of the business or purposes to be conducted or promoted by
the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
CAPITAL STOCK
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 305,000,000 shares, consisting
solely of:
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300,000,000 shares of common stock, par value $0.001 per share ("COMMON STOCK"); and
5,000,000 shares of preferred stock, par value $0.01 per share ("PREFERRED STOCK").
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The following is a statement of the powers, designations, preferences,
privileges, and relative rights 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 Common Stock are subject to and qualified by the rights of the
holders of Preferred Stock.
2. VOTING. The holders of Common Stock are entitled to one vote
for each share held at all meetings of stockholders. There shall be no
cumulative voting.
3. DIVIDENDS. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor if, as and when determined by the
Board of Directors and subject to any preferential dividend rights of any then
outstanding shares of Preferred Stock.
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
shares of Preferred Stock.
B. PREFERRED STOCK.
Shares of Preferred Stock may be issued from time to time in one or
more series, each of such series to have such powers, designations, preferences,
and relative, participating, optional, or other special rights, if any, and such
qualifications and restrictions, if any, of such preferences and rights, as are
stated or expressed in the resolution or resolutions of the Board of Directors
providing for such series of Preferred Stock. Different series of Preferred
Stock shall not be
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construed to constitute different classes of shares for the purposes of voting
by classes unless expressly so provided in such resolution or resolutions.
Authority is hereby 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 to determine and fix
the powers, designations, preferences, and relative, participating, optional, or
other special rights, if any, and the qualifications and restrictions, if any,
of such preferences and rights, including without limitation dividend rights,
conversion rights, voting rights (if any), redemption privileges, and
liquidation preferences, of such series of Preferred Stock (which need not be
uniform among series), all to the fullest extent now or hereafter permitted by
the General Corporation Law of Delaware. Without limiting the generality of the
foregoing, the resolution or resolutions providing for the creation or issuance
of any series of Preferred Stock may provide that such series shall be superior
to, rank equally with, or be junior to the Preferred Stock of any other series,
all to the fullest extent permitted by law. No resolution, vote, or consent of
the holders of the capital stock of the Corporation shall be required in
connection with the creation or issuance of any shares of any series of
Preferred Stock authorized by and complying with the conditions of this Amended
and Restated Certificate of Incorporation, the right to any such resolution,
vote, or consent being expressly waived by all present and future holders of the
capital stock of the Corporation.
Any resolution or resolutions adopted by the Board of Directors
pursuant to the authority vested in them by this Article IV shall be set forth
in a certificate of designation along with the number of shares of stock of such
series as to which the resolution or resolutions shall apply and such
certificate shall be executed, acknowledged, filed, recorded, and shall become
effective, in accordance with Section 103 of the General Corporation Law of the
State of Delaware. Unless otherwise provided in any such resolution or
resolutions, the number of shares of stock of any such series to which such
resolution or resolutions apply may be increased (but not above the total number
of authorized shares of the class) or decreased (but not below the number of
shares thereof then outstanding) by a certificate likewise executed,
acknowledged, filed and recorded, setting forth a statement that a specified
increase or decrease therein has been authorized and directed by a resolution or
resolutions likewise adopted by the Board of Directors. In case the number of
such shares shall be decreased, the number of shares so specified in the
certificate shall resume the status which they had prior to the adoption of the
first resolution or resolutions. When no shares of any such class or series are
outstanding, either because none were issued or because none remain outstanding,
a certificate setting forth a resolution or resolutions adopted by the Board of
Directors that none of the authorized shares of such class or series are
outstanding, and that none will be issued subject to the certificate of
designations previously filed with respect to such class or series, may be
executed, acknowledged, filed and recorded in the same manner as previously
described and it shall have the effect of eliminating from this Amended and
Restated Certificate of Incorporation all matters set forth in the certificate
of designations with respect to such class or series of stock. If no shares of
any such class or series established by a resolution or resolutions adopted by
the Board of Directors have been issued, the voting powers, designations,
preferences and relative, participating, optional or other rights, if any, with
the qualifications, limitations or restrictions thereof, may be amended by a
resolution or resolutions adopted by the Board of Directors. In the event of any
such amendment, a certificate which (i) states that no shares of such class or
series have been issued, (ii) sets forth the copy of the amending resolution or
resolutions and (iii) if the designation of such class or series is being
changed, indicates the original designation and the new designation, shall be
executed,
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acknowledged, filed, recorded, and shall become effective, in accordance with
Section 103 of the General Corporation Law of the State of Delaware.
ARTICLE V
BOARD OF DIRECTORS
The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for defining
and regulating the powers of the Corporation and its directors and stockholders
and are in furtherance and not in limitation of the powers conferred upon the
Corporation by statute:
(a) The Board of Directors shall be divided into three
classes of directors, such classes to be as nearly equal in number of
directors as possible, having staggered three-year terms of office, the
term of office of the directors of the first such class to expire as of
the first annual meeting of the Corporation's stockholders following
the closing of the Corporation's first public offering of shares of
Common Stock registered pursuant to the Securities Act of 1933, as
amended, those of the second class to expire as of the second annual
meeting of the Corporation's stockholders following such closing, and
those of the third class as of the third annual meeting of the
Corporation's stockholders following such closing, such that at each
annual meeting of stockholders after such closing, nominees will stand
for election to succeed those directors whose terms are to expire as of
such meeting. Any director serving as such pursuant to this paragraph
(b) of Article V may be removed only for cause and only by the vote of
the holders of 66 2/3% of the shares of the Corporation's stock
entitled to vote for the election of directors.
(b) The Board of Directors shall have the power and
authority: (i) to adopt, amend or repeal By-Laws of the Corporation,
subject only to such limitations, if any, as may be from time to time
imposed by other provisions of this Certificate, by law, or by the
By-Laws; and (ii) to the full extent permitted or not prohibited by
law, and without the consent of or other action by the stockholders, to
authorize or create mortgage, pledges or other liens or encumbrances
upon any or all of the assets, real, personal or mixed, and franchises
of the Corporation, including after-acquired property, and to exercise
all of the powers of the Corporation in connection therewith.
ARTICLE VI
LIMITATION OF LIABILITY
No director of the Corporation shall be personally liable to the
Corporation or to any of its stockholders for monetary damages for breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability; PROVIDED, HOWEVER, that to the extent required from time to time by
applicable law, this Article VI shall not eliminate or limit the liability of a
director, to the extent such liability is provided by applicable law, (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
Title 8 of the Delaware Code, or (iv) for any transactions from which the
director derived an improper personal benefit. No amendment to or repeal of this
Article VI shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any
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acts or omissions of such director occurring prior to the effective date of such
amendment or repeal.
ARTICLE VII
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of Delaware, as amended from time to time,
indemnify each person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, 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), judgements, fines 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.
Indemnification may include payment by the Corporation of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by the person indemnified to
repay such payment if it is ultimately determined that such person is not
entitled to indemnification under this Article VII, which undertaking may be
accepted without reference to the financial ability of such person to make such
repayment.
The Corporation shall not indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person unless the initiation thereof was approved by the Board of
Directors.
The indemnification rights provided in this Article VII (i) shall not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any law, agreement or vote of stockholders or disinterested
directors or otherwise, and (ii) shall inure to the benefit of the heirs,
executors and administrators of such persons. 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 VII.
ARTICLE VIII
COMPROMISES AND ARRANGEMENTS
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
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 the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 391 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
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 the Corporation, as the case may be, to
be summoned in such a
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manner as the said court directs. If a majority of the number representing
three-fourths (3/4ths) in value of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of the Corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the 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 creditors or class
of creditors, and/or stockholders or class of stockholders of the Corporation,
as the case may be, and also on the Corporation.
ARTICLE IX
CERTAIN TRANSACTIONS
The Board of Directors, when considering a tender offer or merger or
acquisition proposal, may take into account factors in addition to potential
economic benefits to stockholders, including without limitation (i) comparison
of the proposed consideration to be received by stockholders in relation to the
then current market price of the Corporation's capital stock, the estimated
current value of the Corporation in a freely negotiated transaction, and the
estimated future value of the Corporation as an independent entity, (ii) the
impact of such a transaction on the employees, suppliers, and customers of the
Corporation and its effect on the communities in which the Corporation operates,
and (iii) the impact of such a transaction on the unique corporate culture and
atmosphere of the Corporation.
ARTICLE X
STOCKHOLDER ACTION
Any action required or permitted to be taken by the stockholders of the
Corporation may be taken only at a duly called annual or special meeting of the
stockholders, and not by written consent in lieu of such a meeting, and special
meetings of stockholders may be called only by the Chairman of the Board of
Directors, the President, or a majority of the Board of Directors.
ARTICLE XI
AMENDMENTS
The affirmative vote of the holders of at least 66 2/3% of the
outstanding voting stock of the Corporation (in addition to any separate class
vote that may in the future be required pursuant to the terms of any outstanding
Preferred Stock) shall be required to amend or repeal the provisions of Articles
IV (to the extent it relates to the authority of the Board of Directors to issue
shares of Preferred Stock in one or more series, the terms of which may be
determined by the Board of Directors), V, VII, IX, X, or XI of this Fourth
Amended and Restated Certificate of Incorporation or to reduce the numbers of
authorized shares of Common Stock or Preferred Stock.
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IN WITNESS WHEREOF, the undersigned has caused this Fourth Amended and
Restated Certificate of Incorporation to be duly executed on its behalf as of
May 30, 2000.
SONUS NETWORKS, INC.
By: /s/ HASSAN AHMED
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Hassan Ahmed
President
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