Exhibit 3(i)(a)
Restated Certificate of Incorporation
of
Clean Diesel Technologies, Inc.
The original certificate of incorporation of Clean Diesel Technologies,
Inc. (the "corporation") was filed with the Secretary of State of Delaware on
January 19, 1994. This restated certificate of incorporation of the corporation
was duly adopted by the vote of the Board of Directors of the corporation in
accordance with Section 245 of the Delaware General Corporation Law on March 21,
2007 without a vote of shareholders. This restated certificate of incorporation
only restates and integrates and does not further amend the provisions of the
corporation's certificate of incorporation as theretofore amended and
supplemented and there is no discrepancy between those provisions and the
provisions of this restated certificate.
1. The name of the corporation is
Clean Diesel Technologies, Inc.
2. 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.
3. The nature of the business or purpose to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be
organized under the General Corporation law of Delaware.
4. The corporation shall have authority to issue the total number of Forty
Five Million One Hundred Thousand (45,100,000) shares of the par value of
$0.05 per share, amounting in the aggregate to Two Million Two Hundred
Fifty Five Thousand Dollars ($2,255,000), and of such shares Forty Five
Million (45,000,000) shall be designated as common stock and One Hundred
Thousand (100,000) shall be designated as preferred stock.
The preferred stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized, within the limitations and
restrictions set forth in this Certificate, to issue the preferred stock in
one or more series and, in connection with the creation of any such series,
by resolution or resolutions providing for the issue of the shares thereof,
to determine and fix such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions thereof, including without limitation, dividend rights,
dividend rates, conversion rights, rights and terms of redemption
(including sinking fund provisions), and the liquidation preferences of any
unissued series of preferred stock and the number of shares constituting
any such series; and to increase or decrease the number of shares of any
series subsequent to the issue of shares of that series, but not above the
total number of authorized shares of the class and not below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be so decreased, the shares constituting such decrease shall
resume
the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series. In no event,
however, may the Board of Directors issue preferred stock which has the
effect of voting as a class during the pendency of a tender offer to
purchase more than 50% of the common stock of the Company, unless the
tender offeror(s) consent to such issuance.
5. In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter or repeal the
by-laws of the corporation.
6. Elections of Directors need not be by written ballot unless the by-laws of
the corporation shall so provide.
7. Meetings of stockholders may be held within or without the state of
Delaware, as the by-laws may provide. The books of the corporation may be
kept outside of the State of Delaware at such place or places as may be
designed from time to time by the board of directors or in the by-laws of
the corporation.
8. (a) 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 except that this Article 9 shall not eliminate
or limit a director's liability (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.
(b) If the Delaware General Corporation Law is amended after approval
by the stockholders of this Article 8 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 Delaware General Corporation Law, as
so amended from time to time.
(c) Any repeal or modification of this Article 8 shall not increase the
personal liability of any director of this corporation for any act or
occurrence taking place prior to such repeal or modification, or otherwise
adversely affecting any right or protection of a director of the
corporation existing at the time of such repeal or modification.
9. (a) Except as otherwise provided below, the corporation, shall, to the
fullest extent indemnify each person who is, or shall have been, a
director, officer, employee or agent of the corporation or who is or was a
director, officer, employee or agent of the corporation and is serving, or
shall have served, at the request of the corporation, as a director,
officer, employee or agent of another organization or in any capacity with
respect to any employee benefit plan of the corporation, against all
liabilities and expenses (including judgments, fines, penalties, amounts
paid or to be paid in settlement, and reasonable attorneys fees) imposed
upon or incurred by any such person (the "Indemnitee") in connection with,
or arising out of, the defense of disposition of
any action, suit or other proceeding, whether civil or criminal, in
which he may be a defendant or with which he may be threatened or otherwise
involved, directly or indirectly, by reason of his being or having been
such a director, officer, employee or agent or as a result of his serving
or having served with respect to any such employee benefit plan; provided,
however, that the corporation shall provide no indemnification with respect
to any matter as to which any such Indemnitee shall be finally adjudicated
in such action suit or proceeding not to have acted in good faith in the
reasonable belief that his action was (i) in the best interests of the
corporation or (ii) to the extent such matter relates to service with
respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
(b) The right to indemnification conferred in this Article 9 shall
include the right to be paid by the corporation for liabilities and
expenses incurred in connection with the settlement of compromise of any
such action, suite or proceeding, pursuant to a consent decree or
otherwise, unless a determination is made, within forty-five (45) days
after receipt by the corporation of a written request by the Indemnitee for
indemnification, that such settlement or compromise is not in the best
interests of the corporation or, to the extent such matter related to
service with respect to an employee benefit plan, that such settlement or
compromise is not in the best interests of the participants or
beneficiaries of such plan. Any such determination shall be made (i) by the
board of directors of the corporation by a majority vote of a quorum
consisting of disinterested directors, or (ii) if such quorum is not
obtainable, by a majority of the disinterested directors then in office.
Notwithstanding the foregoing, if there are less than two disinterested
directors of the corporation then in office, the board of directors shall
promptly direct that independent legal counsel (who may be regular legal
counsel to the corporation) determine, based on facts know to such counsel
at such time, whether such Indemnitee acted in good faith in the reasonable
belief that this action was in the best interests of the corporation or the
participants or beneficiaries of any such employee benefit plan, as the
case may be; and, in such event, indemnification shall be made to such
Indemnitee unless, within forty-five (45) days after receipt by the
corporation of the request by such Indemnitee for indemnification, such
independent legal counsel in a written opinion to the corporation
determines that such Indemnitee did not act in good faith in the reasonable
belief that his action was in the best interests of the corporation or the
participants or beneficiaries of any such employee benefit plan, as the
case may be.
(c) As a condition precedent to his right to be indemnified, the
Indemnitee must give the corporation notice in writing as soon as
practicable of any action, suit or proceeding involving him for which
indemnity will or could be sought. With respect to any action, suit or
proceeding of which the corporation is 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 such Indemnitee. After notice from the corporation to the
Indemnitee of its election so to assume such defense, the corporation shall
not be liable to such Indemnitee for any legal or other expenses
subsequently incurred by such Indemnitee in connection with such claim, but
the fees and expense of such counsel incurred after notice from the
corporation of its assumption of the defense thereof shall be at the
expense of the Indemnitee unless (i) the employment of counsel by the
Indemnitee has been authorized by the corporation, (ii) counsel to the
Indemnitee shall have reasonably concluded that there may be a conflict of
interest or position on any significant issue between the corporation and
the Indemnitee in the conduct of the defense of such action or (iii) the
corporation shall not in fact have employed counsel to assume the defense
of such action, in each of which cases, the fees and expenses of counsel
for the Indemnitee shall be at the expense of the corporation, except as
otherwise expressly provided by this Article. The corporation shall not be
entitled to assume the defense of any claim brought by or on behalf of the
corporation or as to which counsel for the Indemnitee shall have reasonably
made the conclusion provided for in (ii) above.
(d) Subject to paragraph 4(c) above, the right to indemnification referred
to in this Article shall include the right to be paid by the corporation
for expenses (including reasonable attorneys' fees) incurred in defending a
civil or criminal action, suit or proceeding in advance of its final
disposition, subject to receipt of an undertaking by the Indemnitee to
repay such payment if it is ultimately determined that the Indemnitee is
not entitled to indemnification under this Article. Such undertaking may be
accepted without reference to the financial ability of such Indemnitee to
make such repayment. Notwithstanding the foregoing, no advance shall be
made by the corporation under this paragraph (d) if a determination is
reasonably and promptly made by the board of directors by a majority vote
of a quorum consisting of disinterested directors or, if such quorum is not
obtainable, by a majority of the disinterested directors of the corporation
then in office or, if there are not at least two disinterested directors
then in office, by independent legal counsel (who may be regular legal
counsel to the corporation) in written opinion that, based on facts known
to the board of directors or counsel at such time, such Indemnitee did not
act in good faith in the reasonable belief that his action was in the best
interests of the corporation or the participants or beneficiaries of an
employee benefit plan of the corporation, as the case my be.
(e) If an Indemnitee is entitled under any provision of this Article
to indemnification by the corporation of some or a portion of the
liabilities or expenses imposed upon or incurred by such Indemnitee in the
investigation, defense, appeal or settlement of any action, suite or
proceeding but not, however, for the total amount thereof, the corporation
shall nevertheless indemnify the Indemnitee for the portion of such
liabilities or expenses to which such Indemnitee is entitled.
(f) The right to indemnification and the payment of expenses incurred
in defending any action, suit or proceeding in advance of its final
disposition conferred in this Article shall not be exclusive of any other
right which any person may have or thereafter acquire under any statute,
provision of the articles of incorporation, by-laws, agreement, vote of
stockholders of
managing directors or otherwise. Without limiting the generality of
the foregoing, the corporation, acting through its board of directors, may
enter into agreements with any director or employee of the corporation
providing for indemnification rights equivalent to or greater than the
indemnification rights set forth in this Article.
(g) The corporation may purchase and maintain insurance, at its expense, to
protect itself and any director or employee of the corporation or another
organization or employee benefit plan against any expense or liability
incurred by him in any such capacity, or arising out of the status as such.
(h) The corporation's obligation to provide indemnification under this
Article shall be offset to the extent of any other source of
indemnification or any otherwise applicable insurance coverage under a
policy maintained by the corporation or any other person.
(i) Without the consent of a person entitled to the indemnification and
other rights provided in this Article, no amendment modifying or
terminating such rights shall adversely affect such person's rights under
this Article with respect to the period prior to such amendment.
(j) If this Article or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the corporation shall
nevertheless indemnify each Indemnitee as to any liabilities and expenses
with respect to any action, suit or proceedings to the full extent
permitted by any applicable portion of this Article that shall not have
been invalidated and to the full extent permitted by applicable law.
(k) As used in this Article, the term "director" "officer" "employee"
"agent" and "person" include their respective heirs, executors,
administrators and legal representatives and an "interested" director is
one against whom in such capacity the proceedings in question or another
proceeding on the same or similar grounds is then pending.
10. 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 all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED duly authorized officer of the corporation does hereby set
his hand this 21st day of March, 2007.
/s/ C. W. Grinnell
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Charles W. Grinnell
Vice President and Secretary