Attached files
file | filename |
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8-K - FORM 8-K - RAE SYSTEMS INC | f59471e8vk.htm |
EX-3.2 - EX-3.2 - RAE SYSTEMS INC | f59471exv3w2.htm |
EX-99.1 - EX-99.1 - RAE SYSTEMS INC | f59471exv99w1.htm |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RAE SYSTEMS INC.
ARTICLE I
Name
The name of the corporation is RAE Systems Inc. (the Corporation).
ARTICLE II
Registered Office and Registered Agent
The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801. The name of the registered agent of the Corporation at such address is The
Corporation Trust Company.
ARTICLE III
Corporate Purpose
The purpose of 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 (the
General Corporation Law).
ARTICLE IV
Capital Stock
The total number of shares of all classes of stock that the Corporation shall have authority
to issue is 100, all of which shall be shares of Common Stock, par value $0.01 per share.
ARTICLE V
Directors
(1) Elections of directors of the Corporation need not be by written ballot, except and to the
extent provided in the By-laws of the Corporation.
(2) To the fullest extent permitted by the General Corporation Law as it now exists and as it
may hereafter be amended, no director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
ARTICLE VI
Indemnification of Directors, Officers and Others
(1) The Corporation shall indemnify any 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 (other than an action by or in the right of the
Corporation) by reason of the fact that the 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), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action, suit or proceeding
if the person acted in good faith and in a manner the person 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 the persons 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 the person 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 reasonable cause to believe that the persons conduct was unlawful.
(2) The Corporation shall indemnify any person 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 reason of the fact that the 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 the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter 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 of the State
of Delaware 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.
(3) To the extent that a present or former director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred to in
Sections (1) and (2) of this Article VI, 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.
(4) Any indemnification under Sections (1) and (2) of this Article VI (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director, officer, employee or agent is
proper in the circumstances because the person has met the applicable standard of conduct set forth
in such Sections (1) and (2). Such determination shall be made, with respect to a person who is a
director or officer at the time of such determination, (a) by a majority vote of the directors who
are not parties to such action, suit or proceeding, even though less than a quorum, or (b) by a
committee of such directors designated by majority vote of such directors, even though less than a
quorum, or (c) if there are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (d) by the stockholders of the Corporation.
(5) Expenses (including attorneys fees) incurred by an officer or director in defending any
civil, criminal, administrative or investigative 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
authorized in this Article VI. Such expenses (including attorneys fees) incurred by former
directors and officers or other employees and agents may be so paid upon such terms and conditions,
if any, as the Corporation deems appropriate.
(6) The indemnification and advancement of expenses provided by, or granted pursuant to, the
other sections of this Article VI shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any law, by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such
persons official capacity and as to action in another capacity while holding such office.
(7) 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 and incurred by
him in any such capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the provisions of Section 145 of
the General Corporation Law.
(8) For purposes of this Article VI, 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 had power and authority to indemnify its directors, officers, and employees or agents so
that any person 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 the provisions of this Article VI with respect
to the resulting or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
(9) For purposes of this Article VI, 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 which
imposes duties on, or involves service 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 VI.
(10) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Article VI shall, unless otherwise provided when authorized or ratified, 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.
ARTICLE VII
By-Laws
The directors of the Corporation shall have the power to adopt, amend or repeal by-laws.
ARTICLE VIII
Reorganization
Whenever a compromise or arrangement is proposed between this Corporation and its creditors or
any class of them and/or between this Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the application of any
receiver or receivers appointed for this Corporation under the provisions of section 291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for this 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
class of stockholders of this 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 this Corporation, as
the case may be, agree to any compromise or arrangement and to any reorganization of this
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 this Corporation, as the case may be, and also on this Corporation.
ARTICLE IX
Amendment
The Corporation reserves the right to amend, alter, change or repeal any provisions contained
in this Certificate of Incorporation in the manner now or hereafter prescribed by law, and all the
provisions of this Certificate of Incorporation and all rights conferred on stockholders, directors
and officers in this Certificate of Incorporation are subject to this reserved power.