RESTATED AND AMENDED
CERTIFICATE OF INCORPORATION
OF
NATURAL GAS VEHICLE SYSTEMS, INC.
FIRST
Name of Corporation: The name of the Corporation is NATURAL GAS VEHICLE
SYSTEMS, INC.
SECOND
Registered Office: The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, County of New Castle,
Wilmington, Delaware 19801.
Name of Registered Agent: The name of the registered agent of the
Corporation at such address is THE CORPORATION TRUST COMPANY.
THIRD
Purpose of Corporation: 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.
FOURTH
Authorized Shares of Stock: (a) The total number of shares of stock which
the Corporation shall be authorized to issue is twenty million (20,000,000)
shares of Common Stock which shall have a par value of $0.01 per share, and two
million (2,000,000) shares of Preferred Stock and shall have a par value of
$0.01 per share.
(b) The Board of Directors is authorized, subject to limitations prescribed
by
law and the provisions of this Article FOURTH, to provide for the issuance of
the shares of Preferred Stock in series, and by filing a certificate pursuant to
the applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
(i) The number of shares constituting that series and the distinctive
designation of that series;
(ii) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that
series;
(iii) 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;
(iv) Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(v) Whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or
date 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
2
at different redemption dates;
(vi) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount of
such sinking fund;
(vii) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of payment of
shares of that series;
(viii) Any other relative rights, preferences and limitations of that
series.
Dividends of outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the common shares with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or winding up
of the corporation, the assets available for distribution to holders of shares
of Preferred Stock of all series shall be insufficient to pay such holders the
full preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
(c) Each share of common stock outstanding as of October 10, 1996 shall be
exchanged for one-third (1/3) of a share of common stock pursuant to a
one-for-three reverse stock split. The Corporation shall arrange for the
disposition of fractional interests by those entitled thereto. This reverse
stock split has been approved by the Board of Directors and by the Shareholders
of the Corporation in accordance with
3
Section 242(b)(1) of the General Corporation Law of the State of Delaware.
FIFTH
Management of Corporation: The business and affairs of the Corporation
shall be managed by the Board of Directors. The members of the Board of
Directors need not be elected by ballot unless required by the By-laws of the
Corporation. The qualifications for members of the Board of Directors and the
procedures governing board elections shall be set forth in the By-laws, as
amended from time to time.
SIXTH
By-Laws: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, as amended from time to time, the Board of
Directors is expressly authorized to adopt, amend or repeal the By-laws of the
Corporation.
SEVENTH
Actions of Officers and Directors: No person shall be liable to the
Corporation or its stockholders for any loss or damage suffered by it or them on
account of any action taken or omitted to be taken by him as a director of the
Corporation, except that this provision shall not eliminate or limit the
liability of any director (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 of law,
(iii) under section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Delaware General Corporation Law is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability
4
of the directors of the Company shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation law, as so amended. Any
repeal or modification of this Article by the stockholders of the Company shall
not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
No person shall be liable to the Corporation for any loss or damage
suffered by it on account of any action taken or omitted to be taken by him as
an officer of the Corporation in good faith, if such person (i) exercised or
used the same degree of diligence, care, and skill as an ordinarily prudent
person would have exercised or used under the circumstances in the conduct of
his own affairs, or (ii) took, or omitted to take, such action in reliance upon
advice of counsel for the Corporation or upon statements made or information
furnished by officers or employees of the Corporation, which he had reasonable
grounds to believe to be true, or upon a financial statement of the officer of
the Corporation in charge of its accounts or certified by a public accountant or
a firm of public accountants. If the Delaware General Corporation Law is amended
to authorize corporate action further eliminating or limiting the personal
liability of the officers of the Company, then the liability of the officers of
the Company shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended. Any repeal or modification
of this Article by the stockholders of the Company shall not adversely affect
any right or protection of an officer of the Company existing at the time of
such repeal or modification.
EIGHTH
5
Indemnification: Every person who was or is a party or is threatened to be
made a party to or is involved in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including any action or suit by or in the right of the Corporation) by reason
of the fact that he or a person whom he is the legal representative 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,
shall be indemnified and held harmless by the Corporation to the fullest extent
legally permissible under the General Corporation Law of the State of Delaware,
as amended from time to time, against all expenses, liabilities, and losses
(including attorneys' fees, judgments, fines, and amounts paid in settlement)
actually and reasonably incurred or suffered by him in connection with such
suit, action or proceeding. Such right of indemnification shall be a contract
right, which may be enforced in any manner desired by such person. Such right of
indemnification shall not be exclusive of any other right that such directors,
officers or representatives may have or hereafter acquire and, without limiting
the generality of such statement, they shall be entitled to their respective
rights of indemnification under any By-laws, agreement, vote of stockholders,
provision of the General Corporation Law of the State of Delaware, as amended
from time to time, or otherwise, as well as their rights under this Article
EIGHTH.
The Board of Directors may adopt By-laws from time to time with respect to
indemnification permitted by the General Corporation Law of the State of
Delaware,
6
as amended from time to time, and may cause the Corporation to 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 or another corporation,
partnership, joint venture, trust of other enterprise against any liability
asserted against such person and incurred in any such capacity or arising out of
such status, whether or not the Corporation would have the power to indemnify
such person against such liability.
NINTH
Amendment/Repeal of Certificate of Incorporation: The Corporation reserves
the right to amend and/or repeal any provision contained in this Certificate of
Incorporation in the manner prescribed by the General Corporation Law of the
State of Delaware, as amended from time to time. All rights conferred herein are
granted subject to that reservation of authority.
I, THE UNDERSIGNED, being the Chairman and CEO of the Corporation, for the
purpose of amending and restating the Certificate of Incorporation of the
Corporation, having been adopted pursuant to Section 245(c) of the General
Corporation Law of the State of Delaware, do make, file, and record this Amended
and Restated Certificate of Incorporation, do certify that the facts stated
herein are true and, accordingly, have hereunto set my hand and seal this _____
day of October, 1996.
-----------------------------------
Howard T. Phelan
7