State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATION OF
INCORPORATION OF "POWER EFFICIENCY CORPORATION", FILED IN THIS OFFICE ON THE
NINETEENTH DAY OF OCTOBER, A.D. 1994, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY
RECORDED OF DEEDS FOR RECORDING.
[Seal of Delaware]
/s/ Edward J. Freel
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Edward J. Freel, Secretary of State
2445110 81000 AUTHENTICATION: 7274201
944198722 DATE: 10-19-94
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CERTIFICATE OF INCORPORATION
OF
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POWER EFFICIENCY CORPORATION
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(Under Section 101 of the General Corporation Law of the State of Delaware.)
The undersigned, in order to form a corporation for the purposes
hereinafter stated pursuant to the provisions of the General Corporation Law of
the State of Delaware, does HEREBY CERTIFY AS FOLLOWS:
ARTICLE FIRST
NAME
1.1 The name of the corporation (hereinafter called the
"Corporation") is
POWER EFFICIENCY CORPORATION
ARTICLE SECOND
NAME AND ADDRESS OF REGISTERED AGENT
2.1 The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent, zip code 19904. The name of the Corporation's registered agent at such
address is The Prentice-Hall Corporation System, Inc.
ARTICLE THIRD
NATURE OF BUSINESS
3.1 The nature of the business or purposes to be conducted or promoted by
the Corporation 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.
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ARTICLE FOURTH
CAPITAL STOCK
4.1 Authorized Stock. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is ten million (10,000,000)
shares, which are to be divided into two classes as follows:
9,000,000 shares of Common Stock, par value $.001 per share; and
1,000,000 shares of Preferred Stock, par value $.001 per share.
4.2 Designation of Relative Rights, Preferences and Qualifications of
Preferred Stock. The Board of Directors of the Corporation is authorized,
subject to limitations prescribed by law and the provisions of this Article, to
provide for the issuance from time to time in one or more series of any number
of the shares of Preferred Stock, and, by filing a certificate pursuant to the
Delaware Corporation Law, to establish the number of shares to be included in
each such series, and to fix the designation, relative rights, preferences,
qualifications and limitations of the shares of each such series. The authority
of the Board of Directors with respect to each series shall include, but not be
limited to, determination of the following:
(a) The number of shares constituting that series and
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and whether
they shall be payable in preference to, or in another relation to, the dividends
payable on any other class or classes or series of stock;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion or exchange,
including provision for adjustment of the conversion or exchange rate in such
events as the Board of Directors shall determine;
(e) Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the manner of
selecting shares for redemption if less than all shares are to be redeemed, the
date or dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
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(f) Whether that series shall be entitled to the benefit of a
sinking fund to be applied to the purchase or redemption of shares of that
series, and, if so, the terms and amounts of such sinking fund;
(g) The right of the shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of the Corporation
or any subsidiary, upon the issue of any additional stock (including additional
shares of such series or of any other series) and upon the payment of dividends
or the making of other distributions on, and the purchase or redemption or other
acquisition by the Corporation or any subsidiary of any outstanding stock of the
Corporation;
(h) The rights of the shares of that series in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and whether such rights shall be in preference to, or in another
relation to, the comparable rights of any other class or classes or series of
stock; and
(i) Any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions of that series.
4.3 Status of Redeemed Shares of Preferred Stock. Shares of any series of
Preferred Stock which have been redeemed (whether through the operation of a
sinking fund or otherwise) or which, if convertible or exchangeable, have been
converted into or exchanged for shares of stock of any other class or classes
shall have the status of authorized and unissued shares of Preferred Stock of
the same series and may be reissued as a part of the series of which they were
originally a part or may be reclassified and reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to the
conditions and the restrictions on issuance set forth in the resolution or
resolutions adopted by the Board of Directors providing for the issue of any
series of Preferred Stock.
4.4 Common Stock Voting Rights. Subject to the provisions of any
applicable law, or except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, the holders of
outstanding shares of Common Stock shall exclusively possess voting power for
the election of directors and for all other purposes, each holder of record of
shares of Common Stock being entitled to one vote for each share of Common Stock
standing in his name on the books of the Corporation.
4.5 Common Stock Dividends. Except as otherwise provided by the resolution
or resolutions providing for the issue of any series of Preferred Stock, after
payment shall have been made to the holders of Preferred Stock of the full
amount of dividends to which they shall be entitled pursuant to the .resolution
or resolutions providing for the issue of any series of Preferred Stock; the
holders of Common Stock shall be entitled, to the exclusion of the holders of
preferred stock of any and all series, to receive such dividends as from time to
time may be declared by the Board of Directors.
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4.6 Rights of Common Stock Upon Liquidation, Etc. Except as otherwise
provided by the resolution or resolutions providing for the issue of any series
of Preferred Stock, in the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, after payment shall have
been made to the holders of Preferred Stock of the full amount to which they
shall be entitled pursuant to the resolution or resolutions providing for the
issue of any series of Preferred Stock, the holders of Common Stock shall be
entitled, to the exclusion of the holders of Preferred Stock of any and all
series, to share, ratably according to the number of shares of Common Stock held
by them, in all remaining assets of the Corporation available for distribution
to its stockholders.
4.7 Changes in Authorized Capital Stock. The number of authorized
shares of any class may be increased or decreased by the affirmative vote of
the holders of a majority of the stock of the Corporation entitled to vote.
ARTICLE FIFTH
MANAGEMENT
5.1 The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The Board of Directors of
the Corporation shall have at all times at least one (1) director. The number of
directors shall be determined in the manner provided in the By-Laws.
ARTICLE SIXTH
DURATION OF EXISTENCE
6.1 The Corporation is to have perpetual existence.
ARTICLE SEVENTH
POWERS OF THE BOARD OF DIRECTORS
7.1 In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation without the assent or vote of the
stockholders.
ARTICLE EIGHTH
ELECTION OF DIRECTORS
8.1 Elections of directors need not be by written ballot unless the
By-Laws of the Corporation shall so provide.
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8.2 Meetings of stockholders may be held within or without the State of
Delaware, as the By-laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
ARTICLE NINTH
LIABILITY OF DIRECTORS
9.1 A director of the Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability:
(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 or the law,
(iii) under Section 174 of the General Corporation Law of
Delaware, or
(iv) for any transaction from which the director derived an
improper personal benefit.
9.2 If the General Corporation Law of Delaware is amended, changed or
modified to authorize corporate action further eliminating or limiting the
personal liability of directors to the Corporation, its stockholders or third
parties, then the liability of the director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the General Corporation
Law of Delaware, as so amended, changed or modified. Any repeal, amendment or
modification of the provisions of this Article Ninth by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation relating to claims arising in connection with events which took
place prior to the date of such repeal, amendment or modification.
ARTICLE TENTH
INDEMNIFICATION
10.1 The Corporation shall indemnify any person who was or is a party or
witness, or is threatened to be made a party or witness, to any threatened,
pending or completed action, suit or proceeding (including, without limitation,
an action, suit or proceeding by or in the right of the Corporation), whether
civil, criminal, administrative or investigative (including a grand jury
proceeding), by reason of the fact that he or she (i) is or was a director or
officer of the Corporation or, (ii) as, a director or officer of the
Corporation, is or was serving at the request
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of the Corporation as a director, officer, employee, agent, partner or trustee
(or in any similar position) of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, to the fullest extent
permitted by the General Corporation Law of Delaware and any other applicable
law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding, or in connection with any appeal thereof; provided, however, that,
except as provided in Section 10.2 of this Article with respect to proceedings
to enforce rights to indemnification, the Corporation shall indemnify any such
person in connection with an action, suit or proceeding (or part thereof)
initiated by such person only if the initiation of such action, suit or
proceeding (or part thereof) was authorized by the Board of Directors. Such
right to indemnification shall include the right to payment by the Corporation
of expenses incurred in connection with any such action, suit or proceeding in
advance of its final disposition; provided, however, that the payment of such
expenses incurred by a director or officer in advance of the final disposition
of such action, suit or proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Article or
otherwise.
10.2 Any indemnification or advancement of expenses required under this
Article shall be made promptly, and in any event within sixty (60) days, upon
the written request of the person entitled thereto. If a determination by the
Corporation that the person is entitled to indemnification pursuant to this
Article is required, and the Corporation fails to respond within sixty (60) days
to a written request for indemnity, the Corporation shall be deemed to have
approved such request. If the Corporation denies a written request for indemnity
or advancement of expenses, in whole or in part, of if payment in full pursuant
to such request is not made within sixty (60) days, the right to indemnification
and advancement of expenses as granted by this Article shall be enforceable by
the person in any court of competent jurisdiction. Such person's costs and
expenses incurred in connection with successfully establishing his or her right
to indemnification, in whole or in part, in any such action or proceeding shall
also be indemnified by the Corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for advancement of expenses
pursuant to this Article where the required undertaking has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
the General Corporation Law of Delaware, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
the Board of Directors, independent legal counsel or the stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the General Corporation
Law of Delaware, nor the fact that there has been an actual determination by the
Corporation (including the Board of Directors, independent legal counsel or the
stockholders) that the claimant has not met such applicable standard of conduct,
shall be
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a defense to the action or create a presumption that the claimant has not met
the applicable standard of conduct.
10.3 The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any by-law, 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, and shall continue as
to 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. Any repeal or modification of the provisions of this Article Tenth shall
not affect any obligations of the Corporation or any rights regarding
indemnification and advancement of expenses of a director, officer, employee or
agent with respect to any threatened, pending or completed action, suit or
proceeding for which indemnification or the advancement of expenses is
requested, in which the alleged cause of action accrued at any time prior to
such repeal or modification.
10.4 The Corporation may purchase and maintain insurance, at its expense,
to protect itself and 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, employee benefit plan or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article, the General Corporation Law of Delaware or
otherwise.
10.5 If this Article or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director and officer of the Corporation as to
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including, without limitation, a
grand jury proceeding and an action, suit or proceeding by or in the right of
the Corporation, to the fullest extent permitted by any applicable portion of
this Article that shall not have been invalidated, by the General Corporation
Law of Delaware or by any other applicable law.
ARTICLE ELEVENTH
COMPROMISE WITH CREDITORS
11.1 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, in a summary fashion, upon the
application 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
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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 a
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
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 a 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 this
Corporation.
ARTICLE TWELFTH
CERTAIN BUSINESS COMBINATIONS
12.1 The Corporation expressly elects not to be governed by Section 203 of
the General Corporation Law of the State of Delaware, as amended from time to
time, relating to business combinations with interested stockholders.
IN WITNESS WHEREOF, I have hereunto signed my name and affirm that the
statements made herein are true under penalties of perjury, this 18th day of
October 1994.
/s/ Gerard S. DiFiore
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Gerard S. DiFiore, Incorporator
Robinson, St. John & Wayne
Two Penn Plaza East, 10th Floor
Newark, New Jersey 07105
