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Exhibit 3.1
SIXTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BEACON POWER CORPORATION
The name of the Corporation is Beacon Power Corporation. The
Corporation was originally incorporated on May 8, 1997 pursuant to Sections 242
and 245 of the General Corporation Law of the State of Delaware. This Sixth
Amended and Restated Certificate of Incorporation of Beacon Power Corporation
was proposed and declared advisable by the Board of Directors of the Corporation
on ________, 2000 and was consented to in writing by the Corporation's
stockholders as of ________, 2000, in accordance with Sections 228, 242 and 245
of the General Corporation Law of the State of Delaware. The Corporation's
Amended and Restated Certificate of Incorporation is hereby amended and restated
in its entirety to read as follows:
FIRST: The name of the Corporation is Beacon Power Corporation.
SECOND: The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 110,000,000 shares of common stock,
$0.01 par value per share ("Common Stock") and 10,000,000 shares of preferred
stock, $0.01 par value per share, ("Preferred Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. GENERAL. 110,000,000 shares of Common Stock may be issued from time
to time as determined by the Board of Directors. The voting, dividend and
liquidation rights of the holders of the Common stock are subject to and
qualified by the rights of the holders of the Preferred Stock of any series as
may be designated by the Board of Directors upon any issuance of the Preferred
Stock of any series.
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2. VOTING. The holders of the Common Stock are entitled to one vote for
each share held at all meetings of stockholders (and written actions in lieu of
meetings). There shall be no cumulative voting.
3. DIVIDENDS. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. LIQUIDATION. Upon the dissolution or liquidation of the Corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
B. PREFERRED STOCK.
1. ISSUANCE. 10,000,000 shares of Preferred Stock may be issued from
time to time as determined by the Board of Directors. The Board of Directors is
hereby authorized to designate each series, to establish the number of shares to
be included in each series and to determine or alter the rights, preferences,
privileges, and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock and, within the limits and restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting any such additional series, to increase or decrease (but
not below the number of shares of such series then outstanding) the number of
shares of any such additional series subsequent to the issue of shares of that
series.
2. RIGHTS. Authorized and unissued shares of Preferred Stock may be
issued with such designations, voting powers, preferences, and relative,
participating, option or other special rights, and qualifications, limitations
and restrictions on such rights, as the Board of Directors may authorize by
resolutions duly adopted prior to the issuance of any shares of series of
Preferred Stock, including, but not limited to: (i) the distinctive designation
of each series and the number of shares that will constitute such series; (ii)
the voting rights, if any, of shares of such series and whether the shares of
any such series having voting rights shall have multiple or fractional votes per
share; (iii) the dividend rate on the shares of such series, any restriction,
limitation, or condition upon the payment of such dividends, whether dividends
shall be cumulative, and the dates on which dividends are payable; (iv) the
prices at which, and the terms and conditions on which, the shares of such
series may be redeemed, if such shares are redeemable; (v) the purchase or
sinking fund provisions, if any, for the purchase or redemption of shares of
such series; (vi) any preferential amount payable upon shares of such series in
the event of the liquidation, dissolution, or winding-up of the Corporation, or
the distribution of its assets; and (vii) the prices or rates of conversion at
which, the terms and conditions on which, the shares are convertible.
FIFTH: In furtherance of and not in limitation of powers conferred by
statute, it is further provided:
1. Election of directors need not be by written ballot.
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2. The Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation.
SIXTH: Except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of directors for
breaches of fiduciary duty, no director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for any
breach of fiduciary duty as a director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this provision shall apply
to or have any effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
SEVENTH: The Corporation shall, to the fullest extent not prohibited by
Section 145 of the General Corporation Law of Delaware, as amended from time to
time, indemnify each person 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, by reason of the fact
that he is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan) (all such persons being referred to
hereafter as an "Indemnitee"), or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by or on behalf of an Indemnitee in connection with such action, suit
or proceeding and any appeal therefrom.
As a condition precedent to his right to be indemnified, the Indemnitee
must notify the Corporation in writing as soon as practicable of any action,
suit proceeding or investigation involving him for which indemnity will or could
be sought. With respect to any action, suit, proceeding or investigation of
which the Corporation is so notified, the Corporation will be entitled to
participate therein at its own expense and/or to assume the defense thereof at
its own expense, with legal counsel reasonably acceptable to the Indemnitee.
In the event that the Corporation does not assume the defense of any
action, suit, proceeding or investigation of which the Corporation receives
notice under this Article, the Corporation shall pay in advance of the final
disposition of such matter any expenses (including attorneys' fees) incurred by
an indemnitee in defending a civil or criminal action, suit, proceeding or
investigation or any appeal therefrom; PROVIDED, HOWEVER, that the payment of
such expenses incurred by an Indemnitee in advance of the final disposition of
such matter shall be made only upon receipt of an undertaking by or on behalf of
the Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
by the Corporation as authorized in this Article, which undertaking shall be
accepted without reference to the financial ability of the Indemnitee to make
such repayment; and FURTHER PROVIDED that no such advancement of expenses shall
be made if it is determined that the Indemnitee did not act in good faith and in
a manner he 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 conduct was unlawful.
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If a claim for indemnification or advancement of expenses hereunder is
not paid in full by the Corporation within sixty (60) days after a written claim
has been received by the Corporation, the Indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim,
and if successful in whole or in part, the Indemnitee shall be entitled to be
paid the expenses he incurrred in prosecuting such claim.
The Corporation shall not indemnify an Indemnitee to the extent such
Indemnitee is reimbursed from the proceeds of insurance, and in the event the
Corporation makes any indemnification payments to an Indemnitee and such
Indemnitee is subsequently reimbursed from the proceeds of insurance, such
Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
All determinations hereunder as to the entitlement of an Indemnitee to
indemnification or advancement of expenses shall be made in each instance by (a)
a majority vote of the directors of the Corporation consisting of persons who
are not at that time parties to the action, suit or proceeding in question
("disinterested directors"), whether or not a quorum, (b) a majority vote of a
quorum of the outstanding shares of stock of all classes entitled to vote for
directors, voting as a single class, which quorum shall consist of stockholders
who are not at that time parties to the action, suit or proceeding in question,
(c) independent legal counsel (who may, to the extent permitted by law, be
regular legal counsel to the Corporation), or (d) a court of competent
jurisdiction.
The Indemnification rights provided in this Article (i) shall not be
deemed exclusive of any other rights to which an Indemnitee may be entitled
under any law, agreement or vote of stockholders or disinterested directors or
otherwise, and (ii) shall inure to the benefit of the heirs, executors and
administrators of the Indemnitees. The Corporation may, to the extent authorized
from time to time by its Board of Directors, grant indemnification rights to
other employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article.
EIGHTH: Commencing with the 2001 annual meeting of stockholders of the
Corporation, the directors of the Corporation shall be divided, with respect to
the time for which they severally hold office, into three classes, as nearly
equal in number as possible, with the term of office of the first class to
expire at the 2002 annual meeting of the stockholders of the Corporation, the
term of office of the second class to expire at the 2003 annual meeting of the
stockholders of the Corporation and the term of office of the third class to
expire at the 2004 annual meeting of the stockholders of the Corporation, with
each director to hold office until his or her successor shall have been duly
elected and qualified. At each annual meeting of stockholders of the
Corporation, commencing with the 2002 annual meeting, directors elected to
succeed those directors whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders of the
Corporation after their election.
NINTH: Subject to the approval rights of holders of Common Stock or
Preferred Stock set forth in this Amended and Restated Certificate, the
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of
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Incorporation, in the manner now or hereafter prescribed by statute and this
Amended and Restated Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
EXECUTED at Woburn, Massachusetts, on __________, 2000.
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Maureen Lister, Secretary
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