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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
UNISPHERE SOLUTIONS, INC.
I, THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, DO HEREBY CERTIFY as follows:
FIRST: The name of the Corporation is Unisphere Solutions, Inc.
SECOND: The registered office of the Corporation is to be located at
1209 Orange Street, in the City of Wilmington, in the County of New Castle, in
the State of Delaware. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to exercise any lawful purpose
or power and to engage in any lawful act or activity for which a corporation may
be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation is
authorized to issue is 1,000 shares of Common Stock of the par value of $1.00
per share.
FIFTH: The name and address of the incorporator is as follows:
NAME ADDRESS
---- -------
Jill F. Teich c/o Siemens Corporation
1301 Avenue of the Americas
New York, NY 10019
SIXTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(1) The number of directors of the Corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the Bylaws.
Election of directors need not be by ballot unless the Bylaws so provide.
(2) The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the Corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid
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and as binding upon the Corporation and upon the stockholders as though it had
been approved or ratified by every stockholder of the Corporation, whether or
not the contract or act would otherwise be open to legal attack because of
directors' interest, or for any other reason.
(3) The directors shall have the power to make, alter or repeal by the
Bylaws of the Corporation.
(4) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the provisions of the
Statutes of Delaware, of this Certificate, and of any Bylaws from time to time
adopted by the stockholders; provided, however, that no Bylaws so adopted shall
invalidate any prior act of the directors which would have been valid if such
Bylaws had not been adopted.
SEVENTH: The Corporation shall, to the full extent permitted by Section
145 of the Delaware General Corporation Law, as amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
EIGHTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of his or her
fiduciary duty as a director, provided that nothing contained in this Article
shall 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 the law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit.
NINTH: 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 291 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 manner as the said court directs. If a majority in number
representing at least three-fourths 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 consequence of such compromise or
arrangement, the said 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 the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
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TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred
herein on stockholders, directors and officers are subject to this reserved
power.
ELEVENTH: The Corporation is to have perpetual existence.
IN WITNESS WHEREOF, I have set my hand and seal this 12th day of
January, 1999.
/s/ Jill F. Teich
------------------------
Jill F. Teich
Sole Incorporator
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
UNISPHERE SOLUTIONS, INC.
The undersigned, George Donahue, being a Vice President and Chief
Financial Officer of Unisphere Solutions, Inc., a corporation organized and
existing under the laws of the State of Delaware (the "Corporation") DOES HEREBY
CERTIFY:
FIRST: That Article FOURTH of the Certificate of Incorporation of the
Corporation is hereby amended to read in its entirety as follows:
"FOURTH: The total number of shares of stock which the
Corporation is authorized to issue is two hundred seventy-two
million (272,000,000) shares of Common Stock of the par value
of $1.00 per share."
SECOND: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware by the written consent of the holder of
all outstanding shares entitled to vote.
IN WITNESS WHEREOF, the undersigned has affixed his signature as Vice
President and has caused the corporate seal of this Corporation to be affixed,
this 24 day of June, 1999.
/s/ George Donahue
-------------------------
George Donahue
Vice President and Chief
Financial Officer
ATTEST:
By: /s/ E. Robert Lupone
-----------------------
E. Robert Lupone
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
UNISPHERE SOLUTIONS, INC.
Unisphere Solutions, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: That the Board of Directors of the Corporation acting pursuant
to Section 242 of the General Corporation Law of the State of Delaware, by
Unanimous Written Consent of the Board of Directors dated April 21, 2000, duly
adopted the following resolutions:
RESOLVED: That Article FOURTH of the Corporation's Certificate of
Incorporation, be and hereby is deleted and the following be
and hereby is inserted in lieu thereof:
"FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 90,666,667 shares
of Common Stock, $1.00 par value per share ("Common Stock").
FURTHER
RESOLVED: That, upon the effective date of the filing of this
Certificate of Amendment (the "Effective Date"), each three
issued and outstanding shares of Common Stock, $1.00 par value
per share, on such Effective Date shall be combined and
changed into one share of Common Stock, $1.00 par value per
share, so that, from and after the Effective Date, each three
shares of Common Stock, $1.00 par value per share, outstanding
and held of record by each stockholder of the Corporation
immediately prior to the Effective Date shall represent one
share of Common Stock, $1.00 par value per share.
FURTHER
RESOLVED: That if any stockholder would be entitled to a fractional
share of Common Stock as a result of the foregoing resolution
(aggregating all of the shares of Common Stock held by such
stockholder immediately prior to the Effective Date), such
fractional share shall be rounded to the nearest whole share
(with any half share rounded up).
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SECOND: That pursuant to a Consent of Stockholders, the holders of at
least a majority of the outstanding shares of the Corporation's Common Stock
consented to the adoption of the foregoing resolutions and the amendments
contained therein; that written notice of such consent has been delivered to all
stockholders not executing such Consent of Stockholders; and that such
amendments were duly adopted in accordance with the applicable provisions of
Sections 228 and 242 of the General Corporation law of the State of Delaware.
[Signature Page to Follow]
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IN WITNESS WHEREOF, this Certificate has been signed by the President
of the Corporation this 9th day of June, 2000.
UNISPHERE SOLUTIONS, INC.
By: /s/ James A. Dolce, Jr.
---------------------------
James A. Dolce, Jr.
President
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
UNISPHERE SOLUTIONS, INC.
Unisphere Solutions, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: That the Board of Directors of the Corporation acting pursuant
to Section 242 of the General Corporation Law of the State of Delaware, by
Unanimous Written Consent of the Board of Directors dated April 21, 2000, duly
adopted the following resolutions:
RESOLVED: That Article FOURTH of the Corporation's Certificate of
Incorporation, be and hereby is deleted and the following be
and hereby is inserted in lieu thereof:
"FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 104,404,040
shares of Common Stock, $1.00 par value per share ("Common
Stock).
SECOND: That pursuant to a Consent of Stockholders, the holders of at
least a majority of the outstanding shares of the Corporation's Common Stock
consented to the adoption of the foregoing resolutions and the amendments
contained therein; that written notice of such consent has been delivered to all
stockholders not executing such Consent of Stockholders; and that such
amendments were duly adopted in accordance with the applicable provisions of
Sections 228 and 242 of the General Corporation law of the State of Delaware.
[Signature Page to Follow]
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IN WITNESS WHEREOF, this Certificate has been signed by the President
of the Corporation this 9th day of June, 2000.
UNISPHERE SOLUTIONS, INC.
By: /s/ James A. Dolce, Jr.
---------------------------
James A. Dolce, Jr.
President
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
UNISPHERE SOLUTIONS, INC.
Unisphere Solutions, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: That the Board of Directors of the Corporation acting pursuant
to Section 242 of the General Corporation Law of the State of Delaware, at a
meeting thereof duly called and held on July 27, 2000, duly adopted the
following resolution:
RESOLVED: That Article FOURTH of the Corporation's Certificate of
Incorporation, be and hereby is deleted and the following
be and hereby is inserted in lieu thereof:
"FOURTH: The total number of shares of capital stock which
the Corporation shall have authority to issue is 105,824,172
shares of Common Stock, $0.01 par value per share ("Common
Stock")."
SECOND: That pursuant to a Consent of Stockholders, the holders of at
least a majority of the outstanding shares of the Corporation's Common Stock
consented to the adoption of the foregoing resolutions and the amendments
contained therein; that written notice of such consent has been delivered to
all stockholders not executing such Consent of Stockholders; and that such
amendments were duly adopted in accordance with the applicable provisions of
Sections 228 and 242 of the General Corporation law of the State of Delaware.
[Signature Page to Follow]
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IN WITNESS WHEREOF, this Certificate has been signed by the President of
the Corporation this 28th day of July, 2000.
UNISPHERE SOLUTIONS, INC.
By: /s/ James A. Dolce, Jr.
_____________________________
James A. Dolce, Jr.
President and CEO
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