EXHIBIT 10.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EMRISE CORPORATION
A DELAWARE CORPORATION
The undersigned, Carmine T. Oliva, hereby certifies that:
ONE: He is the duly elected and acting Chief Executive Officer of
EMRISE CORPORATION (hereinafter, the "corporation").
TWO: The corporation's present name is EMRISE CORPORATION. The name
under which the original certificate of incorporation of the corporation was
filed with the Secretary of State of Delaware on July 14, 1989 is CXR CORP.
THREE: This Amended and Restated Certificate of Incorporation has been
duly adopted in accordance with the provisions of Sections 245 and 242 of the
General Corporation Law of the State of Delaware by the directors and
stockholders of the corporation.
FIVE: The certificate of incorporation of the corporation shall be
amended and restated to read in full as follows:
ARTICLE I
The name of the corporation is EMRISE CORPORATION.
ARTICLE II
The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, State of Delaware. The name of the registered
agent of the corporation at such location is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by
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.
ARTICLE IV
The corporation is authorized to issue one class of capital stock to be
designated "Common Stock" and another class of capital stock to be designated
"Preferred Stock." The total number of shares of Common Stock that the
corporation is authorized to issue is one hundred fifty million (150,000,000),
with a par value of $.0033 per share. The total number of shares of Preferred
Stock that the corporation is authorized to issue is ten million (10,000,000),
with a par value of $.01 per share.
Except as otherwise provided by law, the shares of stock of the
corporation, regardless of class, may be issued by the corporation from time to
time in such amounts, for such consideration and for such corporate purposes as
the board of directors may from time to time determine. A description of the
different classes and series of the corporation's capital stock and a statement
of the designations and the relative rights, preferences and limitations of the
shares of each class and series of capital stock are as follows:
COMMON STOCK. Except as otherwise provided by the General Corporation
Law of the State of Delaware or in this Article IV (or in any certificate of
designation establishing a series of Preferred Stock), the holders of Common
Stock shall exclusively posses all voting power of the corporation. Each share
of Common Stock shall be equal in all respects to every other share of Common
Stock. Each holder of record of issued and outstanding Common Stock shall be
entitled to one (1) vote on all matters for each share so held. Subject to the
rights and preferences, if any, of the holders of Preferred Stock, each issued
and outstanding share of Common Stock shall entitle the record holder thereof to
receive dividends and distributions out of funds legally available therefor,
when, as and if declared by the board of directors, in such amounts and at such
times, if any, as the board of directors shall determine, ratably in proportion
to the number of shares of Common Stock held by each such record holder. Upon
any voluntary or involuntary liquidation, dissolution or winding up of the
corporation, after there shall have been paid to or set aside for the holders of
any class of capital stock having preference over the Common Stock in such
circumstances the full preferential amounts to which they are respectively
entitled, the holders of the Common Stock, and of any class or series of capital
stock entitled to participate in whole or in part therewith as to the
distribution of assets, shall be entitled, after payment or provision for the
payment of all debts and liabilities of the corporation, to receive the
remaining assets of the corporation available for distribution, in cash or in
kind, ratably in proportion to the number of shares of Common Stock held by each
such holder.
PREFERRED STOCK. The board of directors is authorized by resolution or
resolutions, from time to time adopted, to provide for the issuance of Preferred
Stock in one or more series and to fix and state the voting powers,
designations, preferences and relative participating, optional or other special
rights of the shares of each series and the qualifications, limitations and
restrictions thereof, including, but not limited to, determination of one or
more of the following:
(i) the distinctive designations of each such series and the number of
shares which shall constitute such series, which number may be increased (except
where otherwise provided by the board of directors in creating such series) or
decreased (but not below the number of shares thereof then outstanding) from
time to time by the board of directors;
(ii) the annual rate or amount of dividends payable on shares of such
series, whether such dividends shall be cumulative or non-cumulative, the
conditions upon which and the dates when such dividends shall be payable, the
date from which dividends on cumulative series shall accrue and be cumulative on
all shares of such series issued prior to the payment date for the first
dividend of such series, the relative rights of priority, if any, of payment of
dividends on the shares of that series, and the participating or other special
rights, if any, with respect to such dividends;
(iii) whether such series will have any voting rights in addition to
those prescribed by law and, if so, the terms and conditions of the exercise of
such voting rights;
(iv) whether the shares of such series will be redeemable or callable
and, if so, the prices at which, and the terms and conditions on which, such
shares may be redeemed or called, which prices may vary under different
conditions and at different redemption or call dates;
(v) the amount or amounts payable upon the shares of such 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 such series;
(vi) whether the shares of such series shall be entitled to the benefit
of a sinking or retirement fund to be applied to the purchase or redemption of
such shares, and if so entitled, the amount of such fund and the manner of its
application, including the price or prices at which such shares may be redeemed
or purchased through the application of such fund;
(vii) whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of
the same or any other class or classes of capital stock of the corporation, and
if so convertible or exchangeable, the conversion price or prices, or the rate
or rates of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms of such conversion or
exchange;
(viii) whether the shares of such series that are redeemed or converted
shall have the status of authorized but unissued shares of Preferred Stock and
whether such shares may be reissued as shares of the same or any other series of
stock;
(ix) the conditions and restrictions, if any, on the payment of
dividends or on the making of other distributions on, or the purchase,
redemption or other acquisition by the corporation, or any subsidiary thereof,
of, the Common Stock or any other class (or other series of the same class)
ranking junior to the shares of such series as to dividends or upon liquidation,
dissolution or winding up of the corporation; and
(x) the conditions and restrictions, if any, on the creation of
indebtedness of the corporation, or any subsidiary thereof, or on the issue of
any additional stock ranking on parity with or prior to the shares of such
series as to dividends or upon liquidation, dissolution or winding up of the
corporation.
All shares within each series of Preferred Stock shall be alike in
every particular, except with respect to the dates from which dividends, if any,
shall commence to accrue.
ARTICLE V
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, and to merge, sell
its assets and take other corporate action to the extent and in the manner now
or hereafter permitted or prescribed by law, and all rights conferred upon the
stockholders herein are granted pursuant to this reservation.
ARTICLE VI
The corporation shall, to the fullest extent to which it is empowered
to do so and under the circumstances permitted by the General Corporation Law of
the State of Delaware or any other applicable laws, as they may from time to
time be in effect, indemnify any person who was made or is threatened to be made
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 a director or officer of the corporation, or is or was serving
at the specific request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise (including,
without limitation, any employee benefit plan), against all expenses (including
attorneys' fees), judgments, fines and amounts incurred by him or her in
connection with such action, suit or proceeding, and may take such steps as may
be deemed appropriate by the board of directors, including purchasing and
maintain insurance, entering into contracts (including, without limitation,
contracts of indemnification between the corporation and its directors and
officers), creating a trust fund, granting security interests or using other
means (including, without limitation, a letter of credit) to ensure the payment
of such amounts as may be necessary to effect such indemnification.
ARTICLE VII
To the fullest extent permitted by the General Corporation Law of the
State of Delaware as the same exists or as it may hereafter by amended, a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director; provided, that in no event will the liability of any director of this
corporation be eliminated or otherwise limited (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 General Corporation Law
of the State of Delaware; or (iv) for any transaction from which the director
derived any improper personal benefit. If the General Corporation Law of the
State of Delaware is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of the foregoing paragraph, or the adoption
of any provision of this certificate of incorporation inconsistent with the
foregoing paragraph, shall not eliminate, reduce or otherwise adversely affect
any right or protection of a director of the corporation existing at the time of
such repeal or modification in respect of any matter occurring, or any cause of
action, suit or proceeding that, but for the foregoing paragraph, would accrue
or arise, prior to such repeal, modification or adoption of an inconsistent
provision.
ARTICLE VIII
(a) Classification of Board of Directors. The board of directors shall
be divided into three classes, as nearly equal in number as the then total
number of directors constituting the entire board of directors permits with the
term of office of one class expiring each year. At the annual meeting of
stockholders in 1990 directors of the first class shall elected to hold office
for a term expiring at the next succeeding annual meeting, directors of the
second class shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be elected to
hold office for a term expiring at the third succeeding annual meeting. Any
vacancies in the board of directors for any reason, and any directorships
resulting from any increase in the number of directors, may be filled only by
the board of directors, acting by a 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 successors shall be elected and qualified.
(b) Removal for Cause. Notwithstanding any other provisions of this
certificate of incorporation or the bylaws of the corporation (and
notwithstanding the fact that some lesser percentage may be specified by law,
this certificate of incorporation or the bylaws of the corporation), any
director, or the entire board of directors of the corporation may be removed at
any time, but only for cause.
(c) Amendment or Repeal. The provisions set forth in this Article VIII
may not be repealed or amended in any respect, unless such action is approved by
the affirmative vote of the holders of not less than 67 percent of the
outstanding shares of Common Stock of the corporation.
ARTICLE IX
Any action required or permitted to be taken by the stockholders of the
corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by a consent in writing by any such holders.
This Article IX may not be repealed or amended in any respect, unless such
action is approved by the affirmative vote of the holders of not less than
sixty-seven percent (67%) of the outstanding shares of Common Stock of the
corporation.
ARTICLE X
The corporation is to have perpetual existence.
ARTICLE XI
Meetings of the stockholders of the corporation may be held within or
without the State of Delaware, as the bylaws may provide. The books of the
corporation may be kept (subject to any provision contained in the bylaws)
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 the corporation.
ARTICLE XII
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter, amend or
repeal the bylaws of the corporation unless and to the extent the General
Corporation Law of the State of Delaware shall provide otherwise.
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. Elections of directors need not be by written
ballot unless the bylaws of the corporation shall so provide.
IN WITNESS WHEREOF, the undersigned has executed this Amended and
Restated Certificate of Incorporation on this 6th day of May, 2005.
EMRISE CORPORATION
By: /s/ Carmine T. Oliva
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Carmine T. Oliva, Chief Executive Officer