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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ADVANCED THERMAL TECHNOLOGIES, INC.
A DELAWARE CORPORATION
Advanced Thermal Technologies, Inc. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "Delaware General Corporation Law"), DOES HEREBY CERTIFY
THAT:
1. The name of the corporation is Advanced Thermal Technologies,
Inc. The original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on December 12, 1997 pursuant to
the Delaware General Corporation Law. The name of the Corporation in such
original Certificate of Incorporation was B/E Advanced Thermal Technologies,
Inc. A subsequent Certificate of Amendment to Certificate of Incorporation of
the Corporation was filed on July 7, 2000.
2. This Amended and Restated Certificate of Incorporation restates
and integrates and further amends the provisions of the Certificate of
Incorporation of the Corporation and has been duly approved by the Board of
Directors of the Corporation and adopted by the stockholders of the Corporation
in accordance with Sections 141, 228, 242 and 245 of the Delaware General
Corporation Law.
3. The text of the Certificate of Incorporation of the Corporation
as heretofore amended, supplemented or restated is hereby restated and further
amended to read in its entirety as follows:
"ARTICLE I
Section 1.1. Name. The name of this corporation is Advanced Thermal
Technologies, Inc. (the "Corporation").
ARTICLE II
Section 2.1. Registered Office and Registered Agent. The registered
office of the Corporation in the State of Delaware is located at 1013 Centre
Road, in the City of Wilmington, County of New Castle. The name of its
registered agent of such address is Corporation Service Company.
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ARTICLE III
Section 3.1. Corporate Purpose. The purpose of this 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 (the "Delaware
General Corporation Law").
ARTICLE IV
Section 4.1. Authorized Capital. The total number of shares of all
classes of capital stock that this corporation shall have the authority to issue
is 51,000,000 shares, consisting of 40,000,000 shares of Class A Common Stock
(the "Class A Common Stock"), $0.01 par value per share, 10,000,000 shares of
Class B Common Stock (the "Class B Common Stock" and together with the Class A
Common Stock, the "Common Stock"), $0.01 par value per share, and 1,000,000
shares of Preferred Stock (the "Preferred Stock"), $0.01 par value per share.
Except as otherwise provided in the provisions establishing a class of stock,
the number of authorized shares of any class or series of stock may be increased
or decreased (but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the voting power of the
corporation entitled to vote in accordance with the provisions of Section
242(b)(2) of the Delaware General Corporation Law. Subject to the powers,
preferences and rights of any Preferred Stock, including any series thereof,
having any preference or priority over, or rights superior to, the Common Stock,
and except as otherwise provided by law, the holders of the Common Stock shall
have and possess all powers and voting and other rights pertaining to the stock
of this corporation.
Upon the effective date of the filing of this Amended and Restated
Certificate of Incorporation, each share of the Corporation's outstanding
capital stock shall be converted and reconstituted into 10,000,000 shares of
Class B Common Stock (the "Stock Split"). No further adjustment of any
preference or price set forth in this Article IV shall be made as a result of
this Stock Split.
Section 4.2. Common Stock.
a. Class A Common Stock
(1) Dividends. The holders of the Class A Common Stock shall be entitled
to receive, share for share with the holders of shares of Class B Common
Stock, such dividends if, as and when declared from time to time by the
Board of Directors. In the event that such dividend is paid in the form of
shares of Common Stock, holders of Class A Common Stock shall receive Class
A Common Stock and holders of Class B Common Stock shall receive Class B
Common Stock.
(2) Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, the holders of the
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Class A Common Stock shall be entitled to receive, share for share with the
holders of shares of Class B Common Stock, all the assets of the Corporation
of whatever kind available for distribution to stockholders, after the
rights of the holders of the Preferred Stock have been satisfied.
(3) Voting. Each holder of Class A Common Stock shall be entitled to one
vote for each share of Class A Common Stock held as of the applicable date
on any matter that is submitted to a vote or for the consent of the
stockholders of the Corporation. Except as otherwise provided herein or by
the General Corporation Law of the State of Delaware, the holders of Class A
Common Stock and the holders of Class B Common Stock shall at all times vote
on all matters (including the election of directors) together as one class.
b. Class B Common Stock
(1) Dividends. The holders of the Class B Common Stock shall be entitled
to receive, share for share with the holders of shares of Class A Common
Stock, such dividends if, as and when declared from time to time by the
Board of Directors. In the event that such dividend is paid in the form of
shares of Common Stock, holders of Class A Common Stock shall receive Class
A Common Stock and holders of Class B Common Stock shall receive Class B
Common Stock.
(2) Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, the holders of the Class B Common Stock shall be entitled to
receive, share for share with the holders of shares of Class A Common Stock,
all the assets of the Corporation of whatever kind available for
distribution to stockholders, after the rights of the holders of the
Preferred Stock have been satisfied.
(3) Voting. Each holder of Class B Common Stock shall be entitled to
three votes for each share of Class B Common Stock held as of the applicable
date on any matter that is submitted to a vote or for the consent of the
stockholders of the Corporation. Except as otherwise provided herein or by
the General Corporation Law of the State of Delaware, the holders of Class A
Common Stock and the holders of Class B Common Stock shall at all times vote
on all matters (including the election of directors) together as one class.
(4) Conversion.
(a) Each share of Class B Common Stock shall be convertible into one
fully paid and nonassessable share of Class A Common Stock at the option
of the holder thereof at any time.
(b) Each share of Class B Common Stock shall automatically be
converted into one fully paid and nonassessable share of Class A Common
Stock upon the earlier of (x) December 31, 2005 and (y) any sale,
pledge,
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conveyance, hypothecation, assignment or other transfer (a "Transfer")
of such share, whether or not for value, by the initial registered
holder (the "Initial Holder") thereof, other than any such Transfer by
such holder to (i) a nominee of such holder (without any change in
beneficial ownership, as such term is defined under Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")); (ii)
another person that, at the time of such Transfer, beneficially owns
shares of Class B Common Stock or a nominee thereof; (iii) any
controlled affiliate of such Initial Holder which remains such; (iv) a
parent corporation or subsidiary of such Initial Holder or a subsidiary
of such parent which remains such; or (v) any bona fide pledge by the
Initial Holder to any financial institution in connection with a
borrowing.
(c) The one-to-one conversion ratio for the conversion of the Class
B Common Stock into Class A Common Stock in accordance with Sections
(4)(a) and (4)(b) of this Article IV shall in all events be equitably
adjusted in the event of any recapitalization of the Corporation by
means of a stock dividend on, or a stock split or combination of,
outstanding Class A Common Stock or Class B Common Stock, or in the
event of any merger, consolidation or other reorganization of the
Corporation with another corporation.
(d) The Corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Class A Common Stock,
solely for the purpose of effecting the conversion of the shares of
Class B Common Stock, such number of its shares of Class A Common Stock
as shall from time to time be sufficient to effect the conversion of all
outstanding shares of Class B Common Stock.
(e) If any shares of Class B Common Stock shall be converted
pursuant to this Section (4), the shares so converted shall be retired
and returned to the authorized but unissued shares of Class B Common
Stock.
c. Other Matters Affecting Shareholders of Class A Common Stock and Class B
Common Stock
In no event shall any stock dividends or stock splits or combinations of
stock be declared or made on Class A Common Stock or Class B Common Stock unless
the shares of Class A Common Stock and Class B Common Stock at the time
outstanding are treated equally and identically, except that such dividends or
stock splits or combinations shall be made in respect of shares of Class A
Common Stock and Class B Common Stock in the form of shares of Class A Common
Stock or Class B Common Stock, respectively.
Section 4.3. Preferred Stock. Subject to the limitations prescribed by
law and the provisions of this certificate of incorporation, the board of
directors of this corporation is authorized to issue the Preferred Stock from
time to time in one or more series, each of such series to have such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative, participating, optional or other special rights, and such
qualifications,
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limitations or restriction, as shall be determined by the board of directors in
a resolution or resolutions providing for the issuance of such Preferred Stock.
Each share of Preferred Stock issued by the Corporation, if reacquired by the
Corporation (whether by redemption, repurchase, conversion to Common Stock or
other means), shall upon such reacquisition resume the status of authorized and
unissued shares of Preferred Stock, undesignated as to series and available for
designation and issuance by the Corporation.
ARTICLE V
Section 5.1. Management of the Affairs of the Corporation.
a. The business and affairs of the Corporation shall be managed by
its Board of Directors, which may exercise all the powers of the Corporation and
so all such lawful acts and things that are not conferred upon or reserved to
the stockholders by law, by this Amended and Restated Certificate of
Incorporation or by the Bylaws of the Corporation (the "Bylaws").
b. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, alter, amend
or repeal the Bylaws of the Corporation, including any Bylaws adopted, amended,
altered or repealed by the stockholders of the Corporation. The affirmative vote
of at least a majority of the Board of Directors then in office shall be
required to adopt, amend, alter or repeal the Corporation's Bylaws. The
Corporation's Bylaws also may be adopted, amended, altered or repealed by the
affirmative vote of not less than two-thirds of the total number of votes of the
then outstanding shares of capital stock of the Corporation entitled to vote
generally in an election of directors, voting together as a single class. No
Bylaws hereafter legally adopted, amended, altered or repealed by the
stockholders of the Corporation shall invalidate any prior act of the directors
or officers of the Corporation which would have been valid if such Bylaw had not
been adopted, amended, altered or repealed. Notice of any such proposed
alteration or amendment shall be contained in the notice of the meeting at which
it is to be considered.
c. The Corporation reserves the right to adopt, amend, alter or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by the Delaware General
Corporation Law, and all rights conferred upon stockholders herein are granted
subject to this reservation except that under no circumstances may such
amendment be adopted except by the affirmative vote of not less than two-thirds
of the total number of votes of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in an election of directors, voting
together as a single class, and provided further that the rights of the Class B
Common Stock may not be amended, altered or repealed without the approval of the
holders of the requisite number of said shares of Class B Common Stock.
d. Unless otherwise required by law, special meetings of the
stockholders of the Corporation, for any purpose or purposes, may be called only
by either (i) the Board of Directors of the Corporation, (ii) the Chairman of
the Board of Directors of the Corporation, (iii) the Chief Executive Officer of
the Corporation or (iv) the President of the Corporation. Special
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meetings of the stockholders of the Corporation may not be called by any other
person or persons.
e. Notwithstanding any other provisions of this Amended and
Restated Certificate of Incorporation or the Bylaws of this Corporation, the
affirmative vote, at any regular meeting or special meeting of the stockholders,
of not less than two-thirds of the total number of votes 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, shall be required to
amend, alter or repeal any provision inconsistent with the purpose or intent of
the provisions relating to the Classification of Directors as set forth in
Section 5.2. herein and the Removal of Directors as set forth in Section 5.4.
herein. Notice of any such proposed alteration or amendment shall be contained
in the notice of the meeting at which it is to be considered.
f. The Corporation may in its Bylaws confer powers upon the Board
of Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
Section 5.2. Classification of Directors.
a. The Board of Directors shall be divided into three classes
designated as Class I, Class II and Class III, respectively. Directors shall be
assigned to each class in accordance with a resolution or resolutions adopted by
the Board of Directors. Each class shall consist, as nearly as may be possible,
of one-third of the total number of directors constituting the entire Board of
Directors. At the first annual meeting of stockholders following the date
hereof, the term of office of the Class I directors shall expire and Class I
directors shall be elected for a full term of three years. At the second annual
meeting of stockholders following the date hereof, the term of office of the
Class II directors shall expire and Class II directors shall be elected for a
full term of three years. At the third annual meeting of stockholders following
the date hereof, the term of office of the Class III directors shall expire and
Class III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose term expire at
such annual meeting. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly as equal as possible, and any additional
director of any class elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall coincide with the remaining
term of that class, but in no case will a decrease in the number of directors
shorten the term of any incumbent director.
b. The Board of Directors of the Corporation shall consist of not
less than three nor more than nine directors. The exact number shall be
determined from time to time by the affirmative vote of a majority of the
directors in office at the time of adoption of such resolution. Except in
connection with the election of directors at the annual meeting of stockholders,
the number of directors may be decreased only to eliminate vacancies by reason
of death, resignation or removal of one or more directors.
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Section 5.3. Election of Directors. The election of directors need not
be by written ballot unless the Bylaws shall so require. No stockholder will be
permitted to cumulate votes at any election of directors.
Section 5.4. Removal of Directors. Except as otherwise provided pursuant
to the provisions of this Amended and Restated Certificate of Incorporation or
the Bylaws relating to the rights of the holders of any class or series of stock
to elect directors under specified circumstances, any or all directors of the
Corporation may be removed from office at any time by the stockholders of the
Corporation at any regular meeting or special meeting, but only for cause and
only by the affirmative vote of not less than two-thirds of the total number of
votes 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, and only if notice of such proposal was contained in the notice of
such meeting.
Section 5.5. Filling Vacancies. Any vacancy due to the removal of a
director by the affirmative vote of not less than two-thirds of the total number
of votes 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, may be filled by a vote of the majority of the directors then in
office, although less than a quorum, and any directors so chosen shall hold
office until the next election of the class for which such directors shall have
been chosen and until their successor shall be elected and qualified or until
their earlier death, resignation, or removal.
ARTICLE VI
Section 6.1. Advance Notice Requirement. Advance notice of new business
and stockholder nominations for the election of directors shall be given in the
manner and to the extent provided in the Bylaws of the Corporation.
ARTICLE VII
Section 7.1. Liability of Directors. A director of this corporation
shall not be liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent that
exculpation from liability is not permitted under the Delaware General
Corporation Law as in effect at the time such liability is determined. No
amendment or repeal of this Article VII 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 or repeal.
ARTICLE VIII
Section 8.1. Indemnification of Directors, Officers, and Others. This
corporation shall, to the maximum extent permitted from time to time under the
law of the State
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of Delaware, indemnify and upon request advance expenses to any person who is or
was a party or is threatened to be made a party to any threatened, pending or
completed action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was or has agreed to be a director or officer of this corporation or while a
director or officer is or was serving at the request of this corporation as a
director, officer, partner, trustee, employee or agent of any corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including attorney's fees
and expenses), judgments, fines, penalties and amounts paid in settlement
incurred (and not otherwise recovered) in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim;
provided, however, that the foregoing shall not require this corporation to
indemnify or advance expenses to any person in connection with any action, suit,
proceeding, claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights arising
under any by-law, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the heirs and legal representatives of such
person. Any person seeking indemnification under this Article VIII shall be
deemed to have met the standard of conduct required for such indemnification
unless the contrary shall be established. Any repeal or modification of the
foregoing provisions of this Article VIII shall not adversely affect any right
or protection of a director or officer of this corporation with respect to any
acts or omissions of such director or officer occurring prior to such repeal or
modification.
ARTICLE IX
Section 9.1. Location of Meetings and Corporate Books and Records.
Meetings of stockholders may be held within or without the State of Delaware, as
the Bylaws may provide. The books of this Corporation may (subject to any
statutory requirements) be kept 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 Bylaws of this Corporation.
ARTICLE X
Section 10.1. Written Consent of the Stockholders. If at any time this
Corporation shall have a class of stock registered pursuant to the provisions of
the Securities Exchange Act of 1934, for so long as such class is so registered,
any action by the stockholders of such class must be taken at an annual or
special meeting of stockholders and may not be taken by written consent."
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IN WITNESS WHEREOF, Advanced Thermal Technologies, Inc. has caused this
Amended and Restated Certificate of Incorporation to be signed by its Chairman
and Chief Executive Officer and attested to by its Secretary this 14th day of
July, 2000.
/s/AMIN J. KHOURY
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Amin J. Khoury
ATTEST:
/s/ CAMERON H.ADAMSON
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Cameron H. Adamson
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