**Exhibit 3.1**

 

**AMENDED AND RESTATED**

 

**CERTIFICATE OF INCORPORATION OF**

 

**REDBACK NETWORKS INC.**

a DelawareCorporation 

 

Redback Networks Inc., a corporation organized andexisting under the laws of the State of Delaware, does hereby certify that: 

 

ONE: The name of the corporation is Redback Networks Inc. and that the corporation was originally incorporated on August 30, 1996 pursuant to the General Corporation Law of the State of Delaware. 

 

TWO: This Amended and Restated Certificate of Incorporation has been adoptedpursuant to that certain Plan of Reorganization of the corporation confirmed by order of the United States Bankruptcy Court for the District of Delaware on December 22, 2003. 

 

THREE: Pursuant to Section 303 of the General Corporation Law of the State of Delaware, this Amended and RestatedCertificate of Incorporation of Redback Networks Inc., restates, integrates and further amends its Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on June 9, 2000 and a Certificate ofDesignation of Series A Junior Participating Preferred Stock of Redback Networks Inc. filed with the Secretary of State of the State of Delaware on June 15, 2001 as follows: 

 

**ARTICLE I**

 

The name of this corporation is Redback Networks Inc. (the “Corporation”). 

 

**ARTICLE II**

 

The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City ofWilmington, 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 

 

**ARTICLE III**

 

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 organizedunder the General Corporation Law of Delaware. 

**ARTICLE IV**

 

A. The Corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “PreferredStock.” The total number of shares that the Corporation is authorized to issue is Seven hundred fifty million one thousand two hundred (750,001,200) shares shall be Common Stock, par value $0.0001 per share, and ten million (10,000,000) sharesshall be Preferred Stock, par value $0.0001 per share. 

 

B. ThePreferred Stock may be issued from time to time in one or more series, without further stockholder approval. The Board of Directors of the Corporation (the “Board of Directors”) is hereby authorized, in the resolution or resolutionsadopted by the Board of Directors providing for the issuance of any wholly unissued series of Preferred Stock, within the limitations and restrictions stated in this Amended and Restated Certificate of Incorporation (the “RestatedCertificate”), 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, and the liquidation preferences of anywholly unissued series of Preferred Stock, and the number of shares constituting any such series and the designation thereof, or any of them, and to increase or decrease the number of shares of any series subsequent to the issue of shares of thatseries, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of theresolution originally fixing the number of shares of such series. 

 

C. A series of Preferred Stock has been created and designated “Series A Junior Participating Preferred Stock” pursuant to Section 151(g) of the General Corporation Law of the State of Delaware. The designations, powers,preferences and relative and other special rights and the qualifications, limitations and restrictions of such Series A Junior Participating Preferred Stock are as follows: 

 

1. Designation and Amount. The shares of such series shall be designated as “Series A Junior ParticipatingPreferred Stock.” The Series A Junior Participating Preferred Stock shall have a par value of $0.0001 per share, and the number of shares constituting such series shall be 250,000. Such number of shares may be increased or decreased byresolution of the Board of Directors; provided, however, that no decrease shall reduce the number of shares of Series A Junior Participating Preferred Stock to less than the number of shares then issued and outstanding plus the number of sharesissuable upon exercise of outstanding rights, options or warrants or upon conversion of outstanding securities issued by the Corporation. 

 

2. Dividends and Distribution. 

 

(A) Subject to the prior and superior rights of the holders of any shares of any class or series of stock of the Corporation ranking prior and superior tothe shares of Series A Junior Participating Preferred Stock with respect to dividends, the holders of shares of Series A Junior Participating Preferred Stock, in preference to the holders of shares of any class or series of stock of the Corporationranking junior to the Series A Junior Participating Preferred Stock in respect thereof, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally 

 

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available for the purpose, quarterly dividends payable in cash on the last day of March, June, September and December, ineach year (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A JuniorParticipating Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) the Adjustment Number (as defined below) times the aggregate per share amount of all cash dividends, and the AdjustmentNumber times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification orotherwise), declared on the Common Stock, par value $0.0001 per share, of the Corporation (the “Common Stock”) since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend PaymentDate, since the first issuance of any share or fraction of a share of Series A Junior Participating Preferred Stock. The “Adjustment Number” shall initially be 1000. In the event the Corporation shall at any time after January 2, 2004 (i)declare and pay any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Numberin effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which isthe number of shares of Common Stock that were outstanding immediately prior to such event. 

 

(B) The Corporation shall declare a dividend or distribution on the Series A Junior Participating Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on theCommon Stock (other than a dividend payable in shares of Common Stock). 

 

(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A JuniorParticipating Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, orunless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Junior Participating Preferred Stock entitled to receive a quarterly dividend and before suchQuarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of SeriesA Junior Participating Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. TheBoard of Directors may fix a record date for the determination of holders of shares of Series A Junior Participating Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than60 days prior to the date fixed for the payment thereof. 

 

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3. Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock shallhave the following voting rights: 

 

(A) Each share of Series AJunior Participating Preferred Stock shall entitle the holder thereof to a number of votes equal to the Adjustment Number on all matters submitted to a vote of the stockholders of the Corporation. 

 

(B) Except as required by law, by Section 3(C) and by Section 10 hereof,holders of Series A Junior Participating Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking anycorporate action. 

 

(C) If, at the time of any annual meeting ofstockholders for the election of directors, the equivalent of six quarterly dividends (whether or not consecutive) payable on any share or shares of Series A Junior Participating Preferred Stock are in default, the number of directors constitutingthe Board of Directors shall be increased by two. In addition to voting together with the holders of Common Stock for the election of other directors of the Corporation, the holders of record of the Series A Junior Participating Preferred Stock,voting separately as a class to the exclusion of the holders of Common Stock, shall be entitled at said meeting of stockholders (and at each subsequent annual meeting of stockholders), unless all dividends in arrears on the Series A JuniorParticipating Preferred Stock have been paid or declared and set apart for payment prior thereto, to vote for the election of two directors of the Corporation, the holders of any Series A Junior Participating Preferred Stock being entitled to cast anumber of votes per share of Series A Junior Participating Preferred Stock as is specified in paragraph (A) of this Section 3. Until the default in payments of all dividends which permitted the election of said directors shall cease to exist, anydirector who shall have been so elected pursuant to the provisions of this Section 3(C) may be removed at any time, without cause, only by the affirmative vote of the holders of the shares of Series A Junior Participating Preferred Stock at the timeentitled to cast a majority of the votes entitled to be cast for the election of any such director at a special meeting of such holders called for that purpose, and any vacancy thereby created may be filled by the vote of such holders. If and whensuch default shall cease to exist, the holders of the Series A Junior Participating Preferred Stock shall be divested of the foregoing special voting rights, subject to revesting in the event of each and every subsequent like default in payments ofdividends. Upon the termination of the foregoing special voting rights, the terms of office of all persons who may have been elected directors pursuant to said special voting rights shall forthwith terminate, and the number of directors constitutingthe Board of Directors shall be reduced by two. The voting rights granted by this Section 3(C) shall be in addition to any other voting rights granted to the holders of the Series A Junior Participating Preferred Stock in this Section 3. 

 

4. Certain Restrictions. 

 

(A) Whenever quarterly dividends or other dividends or distributions payableon the Series A Junior Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series 

 

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A Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation shall not: 

 

(i) declare or pay dividends on, make any other distributions on, orredeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock; 

 

(ii) declare or pay dividends on or make any other distributions on anyshares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A Junior Participating Preferred Stockand all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; or 

 

(iii) purchase or otherwise acquire for consideration any shares of Series A Junior Participating Preferred Stock, or anyshares of stock ranking on a parity with the Series A Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of Series A JuniorParticipating Preferred Stock, or to such holders and holders of any such shares ranking on a parity therewith, upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights andpreferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. 

 

(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for considerationany shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. 

 

5. Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased or otherwise acquired bythe Corporation in any manner whatsoever shall be retired promptly after the acquisition thereof. All such shares shall upon their retirement become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series ofPreferred Stock to be created by resolution or resolutions of the Board of Directors, subject to any conditions and restrictions on issuance set forth herein. 

 

6. Liquidation, Dissolution or Winding Up. 

 

(A) Upon any liquidation, dissolution or winding up of the Corporation, voluntary or otherwise, no distribution shall be made to the holders of shares ofstock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Series A Junior Participating Preferred Stock shallhave received an amount per share (the “Series A Liquidation Preference”) equal to the greater of (i) $1.00 plus an amount equal to accrued and unpaid dividends and distributions thereon, 

 

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whether or not declared, to the date of such payment, or (ii) the Adjustment Number times the per share amount of allcash and other property to be distributed in respect of the Common Stock upon such liquidation, dissolution or winding up of the Corporation. 

 

(B) In the event, however, that there are not sufficient assets available to permit payment in full of the Series A Liquidation Preference and theliquidation preferences of all other classes and series of stock of the Corporation, if any, that rank on a parity with the Series A Junior Participating Preferred Stock in respect thereof, then the assets available for such distribution shall bedistributed ratably to the holders of the Series A Junior Participating Preferred Stock and the holders of such parity shares in proportion to their respective liquidation preferences. 

 

(C) Neither the merger or consolidation of the Corporation into or with another corporation nor the merger or consolidationof any other corporation into or with the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 6. 

 

7. Consolidation, Merger, Etc. In case the Corporation shall enter into any consolidation, merger, combination orother transaction in which the outstanding shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A Junior Participating Preferred Stock shall atthe same time be similarly exchanged or changed in an amount per share equal to the Adjustment Number times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which eachshare of Common Stock is changed or exchanged. 

 

8. NoRedemption. Shares of Series A Junior Participating Preferred Stock shall not be subject to redemption by the Corporation. 

 

9. Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other series of the Preferred Stock as to the payment ofdividends and as to the distribution of assets upon liquidation, dissolution or winding up, unless the terms of any such series shall provide otherwise, and shall rank senior to the Common Stock as to such matters. 

 

10. Amendment. At any time that any shares of Series A JuniorParticipating Preferred Stock are outstanding, the Restated Certificate shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Junior Participating Preferred Stock so as toaffect them adversely without the affirmative vote of the holders of two-thirds of the outstanding shares of Series A Junior Participating Preferred Stock, voting separately as a class. 

 

11. Fractional Shares. Series A Junior Participating Preferred Stock may be issued in fractions of a share that shallentitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A Junior Participating PreferredStock. 

 

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**ARTICLE V**

 

The Corporation shall not issue any non-voting equity securities. All rights to vote and all voting power shall, except as provided in Article IV, bevested in the Common Stock. 

 

**ARTICLE VI**

 

Except as otherwise provided in this Restated Certificate, in furtherance andnot in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind any or all of the Bylaws of the Corporation. 

 

**ARTICLE VII**

 

The number of directors of the Corporation shall be fixed from time to time by a bylaw or amendment thereof duly adopted by the Board of Directors or bythe stockholders. 

 

**ARTICLE VIII**

 

Elections of directors need not be by written ballot unless the Bylaws of theCorporation shall so provide. 

 

**ARTICLE IX**

 

Except as otherwise provided in this Restated Certificate, any actionrequired or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders of the Corporation, and no action required to be taken or that may be taken at any annual or specialmeeting of the stockholders of the Corporation may be taken by written consent. 

 

**ARTICLE X**

 

****Adirector of the Corporation shall, to the full extent permitted by the Delaware General Corporation Law as it now exists or as it may hereafter be amended, not be liable to the Corporation or its stockholders for monetary damages for breach offiduciary duty as a director. Neither any amendment nor repeal of this Article X, nor the adoption of any provision of this Restated Certificate inconsistent with this Article X, shall eliminate or reduce the effect of this Article X in respect ofany matter occurring, or any cause of action, suit or claim that, but for this Article X, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. 

 

**ARTICLE XI**

 

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Restated Certificate, in the manner now or hereafterprescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. 

 

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**ARTICLE XII**

 

To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (andadvancement of expenses to) agents of the Corporation (and any other persons to which General Corporation Law permits the Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote ofstockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law, subject only to limits created by applicable General Corporation Law (statutoryor non-statutory), with respect to actions for breach of duty to the Corporation, its stockholders, and others. 

 

Any amendment, repeal or modification of the foregoing provisions of this Article XII shall not adversely affect any right or protection of a director,officer, agent, or other person existing at the time of, or increase the liability of any director of the Corporation with respect to, any acts or omissions of such director, officer or agent occurring prior to such amendment, repeal ormodification. 

 

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FOUR: By order of the United States Bankruptcy Court for the District ofDelaware (the “Court”), having jurisdiction over this Corporation pursuant to Title 11 of the United States Code (the “Bankruptcy Code”), the Court by order dated December 22, 2003 has authorized the adoption of this Amended andRestated Certificate of Incorporation pursuant to the provisions of Sections 1123 and 1129 of the Bankruptcy Code and Section 303 of the General Corporation Law of the State of Delaware. 

 

FIVE: This Amended and Restated Certificate of Incorporation shall become effective on January 2, 2004 at 8:59 p.m., EasternStandard Time. 

 

*[Remainder of Page Intentionally Left Blank]*

 

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IN WITNESS WHEREOF, the undersigned, being the President and Chief Executive Officer of Reback NetworksInc., has executed this Amended and Restated Certificate of Incorporation on January 2, 2004. 

 

REDBACK NETWORKS INC.

By:
 
/s/ KEVIN A. DENUCCIO
  
Kevin A. DeNuccio
  
President and Chief Executive Officer

 

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