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Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
AVAYA INC.
(formerly known as Lucent EN Corp.)
ARTICLE I
Offices And Records
SECTION 1.01. Delaware Office. The principal office of the
Avaya Inc. (the "Corporation") in the State of Delaware shall be located in the
City of Wilmington, County of New Castle, and the name and address of its
registered agent is The United States Corporation Company.
SECTION 1.02. Other Offices. The Corporation may have such
other offices, either within or without the State of Delaware, as the board of
directors of the Corporation (the "Board of Directors", and each member thereof,
a "Director") may designate or as the business of the Corporation may from time
to time require.
SECTION 1.03. Books and Records. The books and records of the
Corporation may be kept outside the State of Delaware at such place or places as
may from time to time be designated by the Board of Directors.
ARTICLE II
Stockholders
SECTION 2.01. Annual Meeting. The annual meeting
of the stockholders of the Corporation shall be held on such
date and at such time as may be fixed by resolution of the
Board of Directors.
SECTION 2.02. Special Meeting. 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, par value $0.01 per share, of the
Corporation (the "Common Stock") as to dividends or upon liquidation, special
meetings of stockholders of the
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Corporation for any purpose or purposes may be called only by (a) 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 (b) by the
Chairman of the Board of Directors (the "Chairman of the Board"). In addition,
prior to the Trigger Date (as defined in the Restated Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation"), the
Corporation will call a special meeting of stockholders promptly upon request by
Lucent Technologies Inc., a Delaware corporation ("Lucent") if such entity is a
stockholder of the Corporation. No business other than that stated in the notice
shall be transacted at any special meeting.
SECTION 2.03. Place of Meeting. The Board of Directors or the
Chairman of the Board, as the case may be, may designate the place, if any, of
meeting for any annual meeting or for any special meeting of the stockholders.
If no designation is so made, the place of meeting shall be the principal office
of the Corporation.
SECTION 2.04. Notice of Meeting. Notice, stating the place,
day and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be delivered by the Corporation not less than 10 calendar days nor
more than 60 calendar days before the date of the meeting, either personally, by
mail or by other lawful means, to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage thereon prepaid, addressed to
the stockholder at such person's address as it appears on the stock transfer
books of the Corporation. Such further notice shall be given as may be required
by law. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Meetings may be held without notice if all
stockholders entitled to notice are present (except when stockholders entitled
to notice attend the meeting for the express purpose of objecting, at the
beginning of the
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meeting, because the meeting is not lawfully called or convened), or if notice
is waived by those not present in accordance with Section 6.04. Any previously
scheduled meeting of the stockholders may be postponed, and any special meeting
of the stockholders may be canceled, by resolution of the Board of Directors
upon public notice given prior to the date previously scheduled for such meeting
of stockholders.
SECTION 2.05. Quorum and Adjournment; Voting. Except as
otherwise provided by law or by the Certificate of Incorporation, the holders of
a majority of the voting power of all outstanding shares of the Corporation
entitled to vote generally in the election of Directors (the "Voting Stock"),
represented in person or by proxy, shall constitute a quorum at a meeting of
stockholders, except that when specified business is to be voted on by a class
or series of stock voting as a class, the holders of a majority of the shares of
such class or series shall constitute a quorum of such class or series for the
transaction of such business. The chairman of the meeting may adjourn the
meeting from time to time, whether or not there is such a quorum. No notice of
the time and place of adjourned meetings need be given except as required by
law. The stockholders present at a duly called meeting at which a quorum is
present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 2.06. Proxies. At all meetings of stockholders, a
stockholder may vote by proxy executed in writing (or in such manner prescribed
by the General Corporation Law of the State of Delaware (the "DGCL")) by the
stockholder, or by such person's duly authorized attorney in fact.
SECTION 2.07. Notice of Stockholder Business and
Nominations.
(a) Annual Meetings of Stockholders.
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(i) Nominations of persons for election to the Board of Directors and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (A) pursuant to the Corporation's notice of
meeting pursuant to Section 2.04, (B) by or at the direction of the Board of
Directors, (C) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-Law, or (D) prior to the Trigger Date, by Lucent.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(i) of this Section 2.07, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary of the Corporation at
the principal executive offices of the Corporation not later than the close of
business on the 45th calendar day nor earlier than the close of business on the
75th calendar day prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 calendar days before or more than 60 calendar days after
such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 75th calendar day prior
to such annual meeting and not later than the close of business on the later of
the 45th calendar day prior to such annual meeting or the 10th calendar day
following the calendar day on which public announcement of the date of such
meeting is first made by the Corporation. For purposes of determining whether a
stockholder's notice shall have been delivered in a timely manner for the annual
meeting of stockholders in 2001, the first anniversary of the previous year's
meeting shall be deemed to be [March -, 2001]. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice shall set
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forth (A) as to each person whom the stockholder proposes to nominate for
election or reelection as a Director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
Directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
Director if elected); (B) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend these By-Laws, the language of the
proposed amendment), the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (C) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (1) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner, (2) the
class and number of shares of the Corporation which are owned beneficially and
of record by such stockholder and such beneficial owner, (3) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination, and (4) a representation whether
the stockholder or the beneficial owner, if any, intends or is part of a group
which intends (x) to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the Corporation's outstanding capital stock
required to approve or adopt the proposal or elect the nominee and/or (y)
otherwise to solicit proxies from stockholders in support of such proposal or
nomination. The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the Corporation
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of his or her intention to present a proposal at an annual meeting in compliance
with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act
and such stockholder's proposal has been included in a proxy statement that has
been prepared by the Corporation to solicit proxies for such annual meeting. The
Corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a Director.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 2.07 to the contrary, in the event that the
number of Directors to be elected to the Board of Directors is increased and
there is no public announcement by the Corporation naming all of the nominees
for Director or specifying the size of the increased Board of Directors at least
55 calendar days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this By-Law shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 10th
calendar day following the day on which such public announcement is first made
by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting under Section
2.04. Nominations of persons for election to the Board of Directors may be made
at a special meeting of stockholders at which Directors are to be elected
pursuant to the Corporation's notice of meeting (i) by or at the direction of
the Board of Directors, (ii) provided that the Board of Directors has determined
that Directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be
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entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-Law, or prior to the Trigger Date, by Lucent. In the event the
Corporation calls a special meeting of stockholders for the purpose of electing
one or more Directors to the Board of Directors, any stockholder may nominate a
person or persons (as the case may be), for election to such position(s) as
specified in the Corporation's notice of meeting pursuant to such clause (ii),
if the stockholder's notice required by paragraph (a)(ii) of this Section 2.07
shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the 120th calendar day
prior to such special meeting and not later than the close of business on the
later of the 90th calendar day prior to such special meeting or the 10th
calendar day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
(c) General. (i) Only such persons who are nominated in
accordance with the procedures set forth in this Section 2.07 shall be eligible
to serve as Directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-Law. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, the chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 2.07 (including
whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group which solicited)
or did not so solicit, as the case maybe, proxies in support of such
stockholder's nominee or proposal in compliance with such stockholder's
representation as required by clause (a)(ii)(C)(4) of this Section 2.07) and,
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if any proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal or nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 2.07, if the
stockholder (or a qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the Corporation to present a
nomination or business, such nomination shall be disregarded and such proposed
business shall not be transacted, notwithstanding that proxies in respect of
such vote may have been received by the Corporation.
(ii) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15 (d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section
2.07, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.07. Nothing in this Section 2.07 shall be
deemed to affect any rights (a) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (b) of the holders of any series of preferred stock of the
Corporation ("Preferred Stock") to elect Directors under an applicable Preferred
Stock Designation (as defined in the Certificate of Incorporation).
SECTION 2.08. Procedure for Election of Directors; Required
Vote. Election of Directors at all meetings of the stockholders at which
Directors are to be elected shall be by ballot, and, subject to the rights of
the holders of any series of Preferred Stock to elect Directors under an
applicable Preferred Stock Designation, a plurality of the votes cast thereat
shall elect Directors.
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Except as otherwise provided by law, the Certificate of Incorporation, Preferred
Stock Designation, applicable stock exchange rules or other rules and
regulations applicable to the Corporation or these By-Laws, in all matters other
than the election of Directors, the affirmative vote of a majority of the voting
power of the shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the stockholders.
SECTION 2.09. Inspectors of Elections; Opening and Closing the
Polls. (a) The Board of Directors by resolution shall appoint, or shall
authorize an officer of the Corporation to appoint, one or more inspectors,
which inspector or inspectors may include individuals who serve the Corporation
in other capacities, including, without limitation, as officers, employees,
agents or representatives, to act at the meetings of stockholders and make a
written report thereof. One or more persons may be designated as alternate
inspector(s) to replace any inspector who fails to act. If no inspector or
alternate has been appointed to act or is able to act at a meeting of
stockholders, the chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging such person's duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of such person's ability. The
inspector(s) shall have the duties prescribed by law.
(b) The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting by the person presiding over the meeting. The Board
of Directors may adopt by resolution such rules and regulations for the conduct
of the meeting of stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the person presiding over any meeting of stockholders shall have the
right and authority to convene and to adjourn the meeting, to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such presiding officer, are
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appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the
presiding officer of the meeting, may include, without limitation, the
following: (i) an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. The presiding officer at any meeting of stockholders,
in addition to making any other determinations that may be appropriate to the
conduct of the meeting, shall, if the facts warrant, determine and declare to
the meeting that a matter or business was not properly brought before the
meeting and if such presiding officer should so determine, such person shall so
declare to the meeting that any such matter or business not properly brought
before the meeting shall not be transacted or considered. Unless and to the
extent determined by the Board of Directors or the person presiding over the
meeting, meetings of stockholders shall not be required to be held in accordance
with the rules of parliamentary procedure.
ARTICLE III
Board of Directors
SECTION 3.01. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authorities by these By-Laws expressly
conferred upon them, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these By-Laws required to be exercised
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or done by the stockholders.
SECTION 3.02. Regular Meetings. A regular meeting of the Board
of Directors shall be held without other notice than this By-Law in conjunction
with the annual meeting of stockholders. The Board of Directors may, by
resolution, provide the time and place for the holding of additional regular
meetings without other notice than such resolution.
SECTION 3.03. Special Meetings. Special meetings of the Board
of Directors shall be called at the request of the Chairman of the Board, the
President or a majority of the Board of Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.04. Notice. Notice of any special meeting of
Directors shall be given to each Director at such person's business or residence
in writing by hand delivery, first-class or overnight mail or courier service,
telegram or facsimile transmission, orally by telephone or any other lawful
means. If mailed by first-class mail, such notice shall be deemed adequately
delivered when deposited in the United States mails so addressed, with postage
thereon prepaid, at least 5 calendar days before such meeting. If by telegram,
overnight mail or courier service, such notice shall be deemed adequately
delivered when the telegram is delivered to the telegraph company or the notice
is delivered to the overnight mail or courier service company at least 24 hours
before such meeting. If by facsimile transmission, such notice shall be deemed
delivered adequately delivered when the notice is transmitted at least 12 hours
before such meeting. If by telephone, by hand delivery or by other lawful means,
the notice shall be given at least 12 hours prior to the time set for the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting, except for amendments to these By-Laws, as provided
under Section 8.01. A meeting may be held at any time without notice if all the
Directors are present (except when Directors attend for the
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express purpose of objecting, at the beginning of the meeting, because it is not
lawfully called or conveyed) or if those not present waive notice of the meeting
either before or after such meeting.
SECTION 3.05. Action By Consent of Board of Directors. Any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all
members of the Board of Directors or committee, as the case may be, consent
thereto in accordance with applicable law.
SECTION 3.06. Conference Telephone Meetings. Members of the
Board of Directors or any committee thereof may participate in a meeting of the
Board of Directors or such committee by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.07. Quorum. Subject to Article VII of the
Certificate of Incorporation, a whole number of Directors equal to at least a
majority of the Whole Board shall constitute a quorum for the transaction of
business, but if at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of the Directors present may adjourn the
meeting from time to time without further notice. The act of the majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
SECTION 3.08. Executive and Other Committees. (a) The Board of
Directors may designate an Executive Committee to exercise, subject to
applicable provisions of law, all the powers of the Board of Directors in the
management of the business and affairs of the Corporation when the Board of
Directors is not in session, including without limitation the power to declare
dividends, to authorize the issuance of the Corporation's capital stock
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and to adopt a certificate of ownership and merger pursuant to Section 253 of
the DGCL, by resolution similarly adopted, designate one or more other
committees. The Executive Committee and each such other committee shall consist
of one or more Directors. The Board of Directors may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, other
than the Executive Committee (the powers of which are expressly provided for
herein), may to the extent permitted by law exercise such powers and shall have
such responsibilities as shall be specified in the designating resolution. In
the absence or disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such proceedings to the Board of Directors when
required.
(b) A majority of any committee may determine its action and
fix the time and place of its meetings, unless the Board of Directors shall
otherwise provide. Notice of such meetings shall be given to each member of the
committee in the manner provided for in Section 3.05. The Board of Directors
shall have power at any time to fill vacancies in, to change the membership of,
or to dissolve any such committee. Nothing herein shall be deemed to prevent the
Board of Directors from appointing one or more committees consisting in whole or
in part of persons who are not Directors; provided, however, that no such
committee shall have or may exercise any authority of the Board of Directors.
SECTION 3.09. Records. The Board of Directors shall cause to
be kept a record containing the minutes of the proceedings of the meetings of
the Board of Directors and of the stockholders, appropriate stock books and
registers and such books of records and accounts as may be necessary for the
proper conduct of the business of the
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Corporation.
ARTICLE IV
Officers
SECTION 4.01. Elected Officers. The elected officers of the
Corporation shall be a Chairman of the Board, a President, a Secretary, a
Treasurer, and such other officers (including, without limitation, Senior Vice
Presidents and Executive Vice Presidents and Vice Presidents) as the Board of
Directors from time to time may deem proper. The Chairman of the Board shall be
chosen from among the Directors. All officers elected by the Board of Directors
shall each have such powers and duties as generally pertain to their respective
offices, subject to the specific provisions of this Article IV. Such officers
shall also have such powers and duties as from time to time may be conferred by
the Board of Directors or by any committee thereof. The Board of Directors or
any committee thereof may from time to time elect, or the Chairman of the Board
or President may appoint, such other officers (including one or more Vice
Presidents, Controllers, Assistant Secretaries and Assistant Treasurers), as may
be necessary or desirable for the conduct of the business of the Corporation.
Such other officers and agents shall have such duties and shall hold their
offices for such terms as shall be provided in these By-Laws or as may be
prescribed by the Board of Directors or such committee or by the Chairman of the
Board or President, as the case may be.
SECTION 4.02. Election and Term of Office. The elected officers
of the Corporation shall be elected annually by the Board of Directors at the
regular meeting of the Board of Directors held in conjunction with the annual
meeting of the stockholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as convenient. Each
officer shall hold office until such person's successor shall have been duly
elected
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and shall have qualified or until such person's death or until he shall resign
or be removed pursuant to Section 4.08.
SECTION 4.03. Chairman of the Board; Chief Executive Officer.
The Chairman of the Board shall preside at all meetings of the stockholders and
of the Board of Directors and shall be the Chief Executive Officer of the
Corporation. The Chairman of the Board shall be responsible for the general
management of the affairs of the Corporation and shall perform all duties
incidental to such person's office which may be required by law and all such
other duties as are properly required of him by the Board of Directors. He shall
make reports to the Board of Directors and the stockholders, and shall see that
all orders and resolutions of the Board of Directors and of any committee
thereof are carried into effect. The Chairman of the Board may also serve as an
officer of the Corporation, if so elected by the Board of Directors. The
Directors also may elect a Vice-Chairman to act in the place of the Chairman of
the Board upon his or her absence or inability to act.
SECTION 4.04. President. The President shall act in a general
executive capacity and shall assist the Chairman of the Board in the
administration and operation of the Corporation's business and general
supervision of its policies and affairs. The President, if he or she is also a
Director, shall, in the absence of or because of the inability to act of the
Chairman of the Board, perform all duties of the Chairman of the Board and
preside at all meetings of stockholders and of the Board of Directors.
SECTION 4.05. Vice Presidents. Each Senior Vice President and
Executive Vice President and any Vice President shall have such powers and shall
perform such duties as shall be assigned to him by the Board of Directors or by
the President.
SECTION 4.06. (a) Treasurer. The Treasurer shall exercise
general supervision over the receipt, custody and
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disbursement of corporate funds. The Treasurer shall cause the funds of the
Corporation to be deposited in such banks as may be authorized by the Board of
Directors, or in such banks as may be designated as depositories in the manner
provided by resolution of the Board of Directors. The Treasurer shall have such
further powers and duties and shall be subject to such directions as may be
granted or imposed from time to time by the Board of Directors, the Chairman of
the Board or the President.
(b) The Treasurer may designate one or more Assistant
Treasurers who shall have such of the authority and perform such of the duties
of the Treasurer as may be assigned to them by the Board of Directors, the
Chairman of the Board or the Treasurer. During the Treasurer's absence or
inability, the Treasurer's authority and duties shall be possessed by such
Assistant Treasurer(s) as the Board of Directors, the Chairman or Vice Chairman
of the Board or the President may designate.
SECTION 4.07. Secretary. (a) The Secretary shall keep or cause
to be kept in one or more books provided for that purpose, the minutes of all
meetings of the Board of Directors, the committees of the Board of Directors and
the stockholders; the Secretary shall see that all notices are duly given in
accordance with the provisions of these By-Laws and as required by law; shall be
custodian of the records and the seal of the Corporation and affix and attest
the seal to all stock certificates of the Corporation (unless the seal of the
Corporation on such certificates shall be a facsimile, as hereinafter provided)
and affix and attest the seal to all other documents to be executed on behalf of
the Corporation under its seal and shall see that the books, reports,
statements, certificates and other documents and records required by law to be
kept and filed are properly kept and filed; and in general, shall perform all
the duties incident to the office of Secretary and such other duties as from
time to time may be assigned to the Secretary by the Board of Directors, the
Chairman of the Board or the President.
(b) The Secretary may designate one or more Assistant
Secretaries who shall have such of the authority and perform such of the duties
of the Secretary as may be provided in these By-Laws or assigned to them by the
Board of Directors or the Chairman of the Board or by the Secretary. During the
Secretary's absence or inability, the Secretary's authority and duties shall be
possessed by such Assistant Secretary or Assistant Secretaries as the Board of
Directors, the Chairman of the Board, the President or a Vice Chairman of the
Board of Directors may designate.
SECTION 4.08. Removal. Any officer elected, or
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agent appointed, by the Board of Directors may be removed by the affirmative
vote of a majority of the Board of Directors whenever, in their judgment, the
best interests of the Corporation would be served thereby. Any officer or agent
appointed by the Chairman of the Board or the President may he removed by him or
her whenever, in such person's judgment, the best interests of the Corporation
would be served thereby. No elected officer shall have any contractual rights
against the Corporation for compensation by virtue of such election beyond the
date of the election of such person's successor, such person's death, such
person's resignation or such person's removal, whichever event shall first
occur, except as otherwise provided in an employment contract or under an
employee benefit plan.
SECTION 4.09. Vacancies. A newly created elected office and a
vacancy in any elected office because of death, resignation, or removal may be
filled by the Board of Directors for the unexpired portion of the term at any
meeting of the Board of Directors. Any vacancy in an office appointed by the
Chairman of the Board or the President because of death, resignation, or removal
may be filled by the Chairman of the Board or the President.
ARTICLE V
Stock Certificates and Transfers
SECTION 5.01. Stock Certificates and Transfers. The interest
of each stockholder of the Corporation shall be evidenced by certificates for
shares of stock in such form as the Corporation may from time to time prescribe.
The shares of the stock of the Corporation shall be transferred on the books of
the Corporation by the holder thereof in person or by such person's attorney,
upon surrender for cancelation of certificates for at least the same number of
shares, with an assignment and power of transfer endorsed thereon or attached
thereto, duly executed, with such proof
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of the authenticity of the signature as the Corporation or its agents may
reasonably require. The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution prescribe
or as may otherwise be permitted by applicable law, which resolution may permit
all or any of the signatures on such certificates to be in facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue. Notwithstanding the foregoing
provisions regarding share certificates, the Corporation may provide that,
subject to the rights of stockholders under applicable law, some or all of any
or all classes or series of the Corporation's common or any preferred shares may
be uncertificated shares.
SECTION 5.02. Lost, Stolen or Destroyed Certificates. No
certificate for shares of stock in the Corporation shall be issued in place of
any certificate alleged to have been lost, destroyed or stolen, except on
production of such evidence of such loss, destruction or theft and on delivery
to the Corporation of a bond of indemnity in such amount, upon such terms and
secured by such surety, as the Board of Directors or any financial officer may
in its or such person's discretion require.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of October and end on the last day of September of
each year.
SECTION 6.02. Dividends. The Board of Directors may from time
to time declare, and the Corporation may pay, dividends on its outstanding
shares in the manner and upon the terms and conditions provided by law and the
Certificate
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of Incorporation.
SECTION 6.03. Seal. The corporate seal shall have inscribed
thereon the words "Corporate Seal," the year of incorporation and the word
"Delaware."
SECTION 6.04. Waiver of Notice. Whenever any notice is
required to be given to any stockholder or Director under the provisions of the
DGCL or these By-Laws, a waiver thereof given in accordance with applicable law
shall be deemed equivalent to the giving of such notice. Neither the business to
be transacted at, nor the purpose of, any annual or special meeting of the
stockholders or the Board of Directors or committee thereof need be specified in
any waiver of notice of such meeting.
SECTION 6.05. Audits. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board of Directors, and
it shall be the duty of the Board of Directors to cause such audit to be done
annually.
SECTION 6.06. Resignations. Any Director or any officer,
whether elected or appointed, may resign at any time by giving written notice of
such resignation to the Chairman of the Board, the President, or the Secretary,
and such resignation shall be deemed to be effective as of the close of business
on the date said notice is received by the Chairman of the Board, the President,
or the Secretary, or at such later time as is specified therein. No formal
action shall be required of the Board of Directors or the stockholders to make
any such resignation effective.
ARTICLE VII
Contracts, Proxies, Etc.
SECTION 7.01. Contracts. Except as otherwise
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required by law, the Certificate of Incorporation, a Preferred Stock
Designation, or these By-Laws, any contracts or other instruments may be
executed and delivered in the name and on the behalf of the Corporation by such
officer or officers of the Corporation as the Board of Directors may from time
to time direct. Such authority may be general or confined to specific instances
as the Board of Directors may determine. The Chairman of the Board, the
President or any Senior Vice President, Executive Vice President or Vice
President may execute bonds, contracts, deeds, leases and other instruments to
be made or executed or for or on behalf of the Corporation. Subject to any
restrictions imposed by the Board of Directors or the Chairman of the Board, the
President or any Senior Vice President, Executive Vice President or Vice
President of the Corporation may delegate contractual powers to others under
such person's jurisdiction, it being understood, however, that any such
delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
SECTION 7.02. Proxies. Unless otherwise provided by resolution
adopted by the Board of Directors, the Chairman of the Board, the President or
any Senior Vice President, Executive Vice President or Vice President may from
time to time appoint an attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as the holders of stock or other
securities in any other entity, any of whose stock or other securities may be
held by the Corporation, at meetings of the holders of the stock or other
securities of such other entity, or to consent in accordance with applicable
law, in the name of the Corporation as such holder, to any action by such other
entity, and may instruct the person or persons so appointed as to the manner of
casting such votes or giving such consent, and may execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such proxies or other instruments as he may deem
necessary or proper in the premises.
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ARTICLE VIII
Amendments
SECTION 8.01. Amendments. 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 stock issued and outstanding and entitled to vote thereat,
provided, however, that any proposed alteration or repeal of, or the adoption of
any By-Law inconsistent with, Section 2.02 or 2.07 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, and
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.
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I HEREBY CERTIFY that the foregoing is a full, true, and correct copy of the By
Laws of Avaya Inc., a Delaware corporation, as in effect on the date hereof.
Dated: __________, 2000
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Name: Pamela F. Craven
Title: Vice President and Secretary
