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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."
ARTICLE II
Registered Agent
SECTION 2.01. The address of the Corporation's registered
office in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805.
The name of the Corporation's registered agent at such address is The United
States Corporation Company.
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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 Preferred
Stock Designation) increase or decrease (but not below the number of shares
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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;
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(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 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
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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.
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 and,
effective as of the Trigger Date, any power of stockholders to call a special
meeting is specifically denied. No business other than that stated in the notice
shall be transacted at any special meeting. Notwithstanding anything contained
in this 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
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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 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
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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 until the
next succeeding annual meeting of shareholders following his election by the
Directors, and, if elected by the stockholders at such meeting, shall serve 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 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.
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SECTION 7.05. Amendment, repeal, etc. Notwithstanding anything
contained in this 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
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.
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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 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, preferences and privileges of whatsoever nature conferred
upon stockholders, Directors or any other persons whomsoever by and pursuant to
this 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 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.
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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 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
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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
stockholders) to have made a determination prior to the commencement of
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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 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
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(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 [-] day of [-] 2000.
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Name: Pamela F. Craven
Title: Vice President and General Counsel
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Name: Margaret G. Gelsi
Title: Assistant Secretary this [-] day of [-], 2000.
