Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CIENA CORPORATION
Ciena Corporation, a corporation organized and existing under
the laws of the state of Delaware, hereby certifies as follows:
1. The corporation was originally incorporated under the
name “Hydralite Incorporated”, and the date of filing
of the original Certificate of Incorporation of the corporation
with the Secretary of State of the State of Delaware is
November 2, 1992. A Restated Certificate of Incorporation
was filed on April 8, 1994, a Second Restated Certificate
of Incorporation was filed on December 20, 1994, and a
Third Restated Certificate of Incorporation was filed on
December 20, 1995 (the “Third Restated Certificate of
Incorporation”).
2. Pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware, this Amended and
Restated Certificate of Incorporation restates and integrates
and further amends the provisions of the Third Restated
Certificate of Incorporation of this corporation as heretofore
amended or supplemented.
3. This Amended and Restated Certificate of Incorporation
has been duly adopted by the Board of Directors in accordance
with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware and approved by the
stockholders at the regularly scheduled annual meeting of the
stockholders of said corporation.
4. The text of the Third Restated Certificate of
Incorporation as heretofore amended or supplemented is hereby
restated and further amended to read in its entirety as follows:
FIRST: The name of the corporation is Ciena
Corporation (the “Corporation”).
SECOND: The address of the Corporation’s
registered office in the State of Delaware is
2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle. The name of its registered
agent at such address is Corporation Service Company.
THIRD: The nature of the business or purposes
to be conducted or promoted is to engage in any lawful act or
activity for which corporations may be organized under the
General Corporation Law of the State of Delaware (the
“Delaware General Corporation Law”).
FOURTH: The Corporation shall have the
authority to issue two classes of shares to be designated
respectively “Preferred Stock” and “Common
Stock.” The total number of shares of stock that the
Corporation shall have the authority to issue is
310,000,000 shares of capital stock, par value
$0.01 per share. The total number of shares of
Preferred Stock that the Corporation shall have authority to
issue is 20,000,000, par value $0.01 per share. The total number
of shares of Common Stock which the Corporation shall have the
authority to issue is 290,000,000, par value $0.01 per share.
The Preferred Stock authorized by this Certificate of
Incorporation may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, within the
limitations and restrictions stated in this Restated Certificate
of Incorporation, to fix or alter the dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of
redemption, including sinking fund provisions, the redemption
price or prices, the liquidation preferences and the other
preferences, powers, rights, qualifications, limitations and
restrictions of any wholly unissued class or series of Preferred
Stock and the number of shares constituting any such series and
the designation thereof, or any of them.
The Board of Directors is further authorized to increase or
decrease the number of shares of any series of Preferred Stock,
the number of which was fixed by it, subsequent to the issue of
shares of that series, but not below the number of shares of
such series then outstanding, subject to the limitations and
restrictions stated in the resolutions of the Board of Directors
originally fixing the number of shares of such series. In case
the number of shares of any series shall be so decreased, the
shares constituting such decrease shall resume the status which
they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
FIFTH: RESERVED.
SIXTH: The following provisions are inserted
for purposes of the management of the business and conduct of
the affairs of the Corporation and for creating, defining,
limiting and regulating the powers of the Corporation and its
directors and stockholders:
(a) (1) The number of directors shall initially be set
at nine and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such
resolution is presented to the Board for adoption). The
directors shall be divided into three classes consisting of two
or more directors each, with the term of office of the first
class (Class I) to expire at the 1998 annual meeting
of stockholders; the term of office of the second class
(Class II) to expire at the 1999 annual meeting; the
term of office of the third class (Class III) to
expire at the 2000 annual meeting; and thereafter for each such
term to expire at each third succeeding annual meeting of
stockholders after such election. The initial allocation of
existing directors among the classes shall be made by
determination of the Board of Directors. Subject to the rights
of the holders of any series of Preferred Stock then
outstanding, a vacancy resulting from the removal of a director
by the stockholders as provided in Article SIXTH Section
(a)(iii) below may be filled at a special meeting of the
stockholders held for that purpose. All directors shall hold
office until the expiration of the term for which elected, and
until their respective successors are elected, except in the
case of the death, resignation, or removal of any director.
(2) Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting
from death, resignation or other cause (other than removal from
office by a vote of the stockholders) may be filled only by a
majority vote of the directors then in office, though less than
a quorum, and directors so chosen shall hold office for a term
expiring at the next annual meeting of stockholders at which the
term of office of the class to which they have been elected
expires, and until their respective successors are elected,
except in the case of the death, resignation or removal of any
director. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent
director.
(3) Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directors, or the entire
Board of Directors, may be removed from office at any time, with
or without cause, but only by the affirmative vote of the
holders of at least a majority of the voting power of all of the
then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting
together as a single class. Vacancies in the Board of Directors
resulting from such removal may be filled by a majority of the
directors then in office, though less than a quorum, or by the
stockholders as provided in Article SIXTH, Section (a)(i)
above. Directors so chosen shall hold office for a term expiring
at the next annual meeting of stockholders at which the term of
office of the class to which they have been elected expires, and
until their respective successors are elected, except in the
case of the death, resignation or removal of any director.
(b) The election of directors may be conducted in any
manner approved by the stockholders at the time when the
election is held and need not be by ballot.
(c) All corporate powers and authority of the Corporation
(except as at the time otherwise provided by law, by this
Certificate of Incorporation, as restated from time to time, or
by the bylaws) shall be vested in and exercised by the Board of
Directors.
(d) 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 stockholders of the
Corporation and may not be effected by any consent in writing by
such stockholders.
(e) Special meetings of stockholders of the Corporation may
be called only (1) by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies
in previously authorized directorships at the time any such
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resolution is presented to the Board for adoption) or
(2) by the holders of not less than ten percent of all of
the shares entitled to cast votes at the meeting.
(f) The Board of Directors is expressly empowered to adopt,
amend or repeal bylaws of the Corporation. Any adoption,
amendment or repeal of bylaws of the Corporation by the Board of
Directors shall require the approval of a majority of the total
number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any
resolution providing for adoption, amendment or repeal is
presented to the Board). The stockholders shall also have power
to adopt, amend or repeal the bylaws of the Corporation. Any
adoption, amendment or repeal of bylaws of the Corporation by
the stockholders shall require, in addition to any vote of the
holders of any class or series of stock of the Corporation
required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least sixty-six and
two-thirds percent of the voting power of all of the then
outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors voting
together as a single class.
SEVENTH: The Corporation reserves the right to
amend or repeal any provision contained in this Certificate of
Incorporation in the manner prescribed by the laws of the State
of Delaware and all rights conferred upon stockholders are
granted subject to this reservation; provided, however, that,
notwithstanding any other provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any vote
required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least
662/3%
of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class,
shall be required to amend or repeal Articles SIXTH,
SEVENTH, EIGHTH and NINTH.
EIGHTH: To the fullest extent permitted by the
Delaware General Corporation Law, no director of the Corporation
shall have personal liability to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty
as a director, provided that nothing 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 law, (iii) under § 174 of the
Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit. In the event the Delaware General Corporation Law is
amended after the date hereof so as to authorize corporate
action further eliminating or limiting the liability of
directors of the Corporation, the liability of the directors
shall thereupon be eliminated or limited to the maximum extent
permitted by the Delaware General Corporation Law, as so amended
from time to time.
NINTH: The Corporation shall indemnify any
person:
(a) 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 (other than an action by or in the right of the
Corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorney’s fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best
interests of the Corporation, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good-faith
and in a manner which such person reasonably believed to be in
or not opposed to the best interests of the Corporation or, with
respect to any criminal action or proceeding, that the person
had reasonable cause to believe such person’s action was
unlawful, or
(b) who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by
or in the right of the Corporation to procure a judgment in its
favor by
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reason of the fact that such person is or was a director,
officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses
(including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good
faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation, except
that no indemnification shall be made in respect of any claim,
issue or matters as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
paragraphs (a) and (b), or in defense of any claim, issue
or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection therewith. The
rights conferred on any director of the Corporation under this
Article NINTH shall inure to the benefit of any entity that
is affiliated with such director and that is a stockholder of
the Corporation.
Any indemnification under paragraphs (a) and (b) (unless
ordered by a court) shall be made by the Corporation only as
authorized in the specified case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because such person has met the
applicable standard of conduct set forth in paragraphs
(a) and (b). Such determination shall be made (1) by
the board of directors of a majority vote of the quorum
consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such quorum is not
obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
Expenses incurred by an officer or director in defending a civil
or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled
to be indemnified by the Corporation as authorized in this
Article NINTH. Such expenses incurred by other employees
and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
The indemnification and advancement of expenses provided by or
granted pursuant to, this Article NINTH shall not be deemed
exclusive of any other rights to which one seeking
indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such
office.
The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and
incurred by him or her in such capacity or arising our of his or
her status as such, whether or not the Corporation would have
the power to indemnify such person against such liability under
the provisions of this Article NINTH.
For purposes of this Article NINTH, references to “the
Corporation” shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have the power and authority to indemnify its directors,
officers, and employees or agents, so that any person
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who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise, shall stand in the same position under this
Article NINTH with respect to the resulting or surviving
corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
For purpose of this Article NINTH, references to
“other enterprises” shall include employee benefit
plans; references to “fines” shall include any excise
taxes assessed on a person with respect to an employee benefit
plan; and references to “serving at the request of the
Corporation” shall include any service as a director,
officer, employee or agent of the Corporation that imposes
duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in
the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner
“not opposed to the best interests of the Corporation”
as referred to in this Article NINTH.
The indemnification and advancement of expenses provided by, or
granted pursuant to this Article NINTH shall continue as to
a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
IN WITNESS WHEREOF, the undersigned do execute this Certificate
and affirm and acknowledge, under penalties of perjury, that
this Certificate are their act and deed and that the facts
stated herein are true,
this 27th
day
of March, 2008.
Gary B. Smith
President and Chief Executive Officer
Attest:
/s/ Russell B. Stevenson, Jr.
Russell B. Stevenson, Jr.
Senior Vice President, General Counsel
and Secretary
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