EXHIBIT 3.9
CERTIFICATE OF INCORPORATION
OF
NEN LIFE SCIENCES. INC.
FIRST The name of the Corporation is: NEN Life Sciences, Inc.
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 stock which the
Corporation shall have authority to issue is 1000 shares of Common Stock, $0.01
par value per share.
The number of authorized shares of Common 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 stock
of the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the General Corporation Law of Delaware.
FIFTH The name and mailing address of the sole incorporator
are as follows:
Megan Ainsworth Sherman and Sterling
555 California Avenue
San Francisco, CA 94014
SIXTH 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.
2. The Board of Directors is expressly authorized to
adopt, amend or repeal the By-Laws of the
Corporation.
SEVENTH 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.
EIGHTH The Corporation shall, to the fullest extent permitted
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 (i) 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, or (ii) with respect to any criminal
action or proceeding, the Indemnitee had reasonable cause to believe his conduct
was unlawful.
The Corporation shall not indemnify an Indemnitee seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such Indemnitee unless the initiation
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thereof was approved by the Board of Directors of the Corporation. In addition,
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.
NINTH The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute and this Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
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