EXHIBIT 2
CERTIFICATE OF INCORPORATION
OF
XETHANOL CORPORATION
The undersigned, acting as the incorporator of a corporation under and in
accordance with the General Corporation Law of the State of Delaware (the
"DGCL"), hereby adopts the following Certificate of Incorporation for such
corporation.
ARTICLE ONE
NAME OF CORPORATION
The name of the corporation is Xethanol Corporation (the "Corporation").
ARTICLE TWO
PERIOD OF DURATION
The period of duration of the Corporation is perpetual or until dissolved
or merged or consolidated in some lawful manner.
ARTICLE THREE
PURPOSE AND POWERS
Section 1. Purpose. The purpose for which the Corporation is organized is
to engage in any lawful acts or activities for which corporations may be
organized under the General Corporation Law of the State of Delaware (the
"DGCL").
Section 2. Powers. Subject to any specific written limitations or
restrictions imposed by the DGCL, by other law, or by this Certificate of
Incorporation, and solely in furtherance thereof, but not in addition to the
purposes set forth in Section 1 of this Article, the Corporation shall have and
exercise all of the powers specified in the DGCL, which powers are not
inconsistent with this Certificate of Incorporation.
ARTICLE FOUR
CAPITALIZATION, PREEMPTIVE RIGHTS AND VOTING
Section 1. Authorized Shares. The Corporation shall have authority to
issue two classes of shares to be designated respectively, "Common Stock" and
"Preferred Stock." The total number of shares of capital stock which the
Corporation shall have authority to issue is FIFTY ONE MILLION (51,000,000)
shares, of which FIFTY MILLION (50,000,000) shares shall be Common Stock, and
ONE MILLION (1,000,000) shares shall be Preferred Stock. Each share of Common
Stock shall have a par value of $0.00l, and each share of Preferred Stock shall
have a par value of $0.0l.
The Preferred Stock authorized by this Certificate of Incorporation may be
issued from time to time in one or more series, at the discretion of the Board
of Directors without Stockholder approval, with each such series to consist of
such number of shares and to have such voting powers (whether full or limited,
or no voting powers) and such designations, powers, preferences and relative,
participating, optional, redemption, conversion, exchange or other special
rights, and such qualifications, limitations or restrictions thereof, as shall
be stated in the resolution or resolutions providing for the issuance of such
series adopted by the Board of Directors prior to the issuance thereof. The
Board of Directors is hereby expressly vested with the authority, to the fullest
extent now or hereafter provided by law, to adopt any such resolution or
resolutions. Each share of any series of Preferred Stock shall be identical with
all other shares of such series, except as to the date from which dividends, if
any, shall accrue.
Section 2. Preemptive Rights. No holder of shares of capital stock of the
Corporation shall, as such holder, have any right to purchase or subscribe for
any capital stock of any class which the Corporation may issue or sell, whether
or not exchangeable for any capital stock of the Corporation of any class or
classes, whether issued out of unissued shares authorized by this Certificate of
Incorporation as originally filed or by any amendment thereof, or out of shares
of capital stock of the Corporation acquired by it after the issue thereof; nor
shall any holder of shares of capital stock of the Corporation, as such holder,
have any right to purchase, acquire or subscribe for any securities which the
Corporation may issue or sell whether or not convertible into or exchangeable
for shares of capital stock of the Corporation of any class or classes, and
whether or not any such securities have attached or appurtenant thereto
warrants, options or other instruments which entitle the holders thereof to
purchase, acquire or subscribe for shares of capital stock of any class or
classes.
Section 3. Voting. In the exercise of voting privileges, each holder of
shares of the Common Stock of the Corporation shall be entitled to one (1) vote
for each share held in his name on the books of the Corporation, and each holder
of any series of Preferred Stock of the Corporation shall have such voting
rights, if any, as shall be specified for such series. In all elections of
Directors of the Corporation, cumulative voting is expressly prohibited. As
such, each holder of shares of capital stock of the Corporation entitled to vote
at the election of Directors shall have the right to vote, in person or by
proxy, all or any portion of such shares for or against each individual Director
to be elected and shall not be entitled to vote for or against any one Director
more than the aggregate number of shares held by such holder which are entitled
to vote on the election of such Directors. With respect to any action to be
taken by the Stockholders of the Corporation as to any matter other than the
election of Directors, the affirmative vote of the holders of a majority of the
outstanding shares of the capital stock of the Corporation entitled to vote
thereon and represented in person or by proxy at a meeting of the Stockholders
at which a quorum is present shall be sufficient to authorize, affirm, ratify or
consent to such action. Any action required by the DGCL to be taken at any
annual or special meeting of the Stockholders may be taken without a meeting,
without prior notice, and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holder or holders of a
majority of the outstanding shares of the capital stock of the Corporation
entitled to vote thereon and shall be delivered to the Corporation by delivery
to its registered office in Delaware, its principal place of business or an
officer or agent of the Corporation having custody of the Corporation's minute
book.
ARTICLE FIVE
REGISTERED OFFICE AND AGENT
Section 1. Registered Office. The street address of the registered office
of the Corporation is 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801.
2
Section 2. Registered Agent. The name of the initial registered agent of
the Corporation at such address is The Corporation Trust Company.
ARTICLE SIX
DIRECTORS
Section 1. Board of Directors. The business and affairs of the Corporation
shall be managed by or be under the direction of the Board of Directors which
shall consist of not less than one Director, the exact number of which shall be
determined in accordance with the Bylaws of the Corporation. The number of
Directors of the Corporation may from time to time be changed in accordance with
the Bylaws of the Corporation and the DGCL. A Director shall hold office until
the next annual meeting of the Stockholders of the Corporation and until his
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. Any Director
elected to fill a vacancy not resulting from an increase in the number of
Directors shall have the same remaining term as that of his predecessor. A
Director elected by the Board of Directors to fill a newly created Directorship
resulting from an increase in the number of Directors shall hold office until
the next annual meeting of the Stockholders of the Corporation and until his
successor shall be elected and shall qualify and may be filled by a majority of
the Board of Directors then in office, without the presence of the quorum. Any
other vacancy occurring on the Board of Directors may be filled by a majority of
the Directors then in office, even if less than a quorum, or by the sole
remaining Director.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect Directors at an annual or
special meeting of Stockholders, the election, term of office, filling of
vacancies and other features of such Directorships shall be governed by the
terms of the Certificate of Designations applicable thereto, and such Directors
so elected shall not be divided into classes unless expressly provided by such
terms. Further, any such Directors elected by one or more classes or series of
Preferred Stock may be removed at any time, with or without cause (except as
otherwise provided in Section 4 of this Article below), by, and only by, the
affirmative vote of the holders of record of a majority of the outstanding
shares of such class or series given at a special meeting of such Stockholders
called for such purpose.
Section 2. Name and Address of Initial Directors. The names and addresses
of the persons who shall serve as the initial Directors of the Corporation until
the first annual meeting of Stockholders after the date hereof or until their
successors are duly elected and qualified or until their earlier death,
resignation or removal are as follows:
Name Address City, State
- ---- ------- -----------
Christopher d'Arnaud-Taylor 1185 Avenue of the Americas, 20th Floor New York, New York 10036
Franz A. Skryanz 1185 Avenue of the Americas, 20th Floor New York, New York 10036
Mark Austin 1185 Avenue of the Americas, 20th Floor New York, New York 10036
William Frost 1185 Avenue of the Americas, 20th Floor New York, New York 10036
Jeffrey S. Langberg 1185 Avenue of the Americas, 20th Floor New York, New York 10036
3
Section 3. Limitation on Liability of Directors. Pursuant to Section
102(b)(7) of the DGCL, 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 for liability (1) for any breach of the
Director's duty of loyalty to the Corporation or its Stockholders; (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (3) under Section 174 of the DGCL; or (4) for any
transaction from which the Director derived an improper personal benefit. If the
DGCL or other applicable provision of Delaware law hereafter is amended to
authorize further elimination or limitation of the liability of Directors, then
the liability of a Director of this Corporation, in addition to the limitation
on personal liability provided herein, shall be limited to the fullest extent
permitted by the DGCL or other applicable provision of Delaware law as amended.
Any repeal or modification of this Section 3 by the Stockholders of this
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a Director of the Corporation existing
at the time of such repeal or modification.
Section 4. Election and Removal of Directors. Election of Directors need
not be by written ballot. Any Director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of Directors, except as otherwise provided by
law and except if the Directors of the Corporation are ever divided into two or
three classes, any Director may be removed only for cause by the holders of a
majority of the shares then entitled to vote at an election for such class of
Directors.
ARTICLE SEVEN
SPECIAL POWERS OF BOARD OF DIRECTORS
In furtherance and not in limitation of the powers conferred under the
DGCL, the Board of Directors is expressly authorized:
1. To adopt, amend or repeal the Bylaws of the Corporation;
2. To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation;
3. To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose, and to abolish any such
reserve in the manner in which it was created;
4. By a majority of the whole board, to designate one or more committees,
each committee to consist of one or more of the Directors of the Corporation;
the board may designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee; any such committee, to the extent provided in the resolution or
in the Bylaws of the Corporation, shall have and may exercise any or all of the
powers of the Board of Directors in the management of the business and affairs
of the Corporation, except to the extent that the DGCL requires a particular
matter to be authorized by the Board of Directors, and may authorize the seal of
the Corporation to be affixed to all papers which may require it; provided,
however, the Bylaws may provide that in the absence or disqualification of any
member of the committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member; and
5. When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
Stockholders meeting duly called upon such notice as is required by statute, to
sell, lease or exchange all or substantially all of the property and assets of
the Corporation, including its goodwill and its corporate franchises, upon such
terms and conditions and for such consideration, which may consist in whole or
in part of money or property, including shares of stock in, and/or other
securities of, any other corporation or corporations, as its Board of Directors
shall deem expedient and in the best interests of the Corporation.
4
ARTICLE EIGHT
ADDITIONAL POWERS IN BYLAWS
The Corporation may in its Bylaws confer powers and authorities upon the
Board of Directors in addition to the foregoing and those expressly conferred
upon them by the DGCL.
ARTICLE NINE
TRANSACTIONS WITH INTERESTED DIRECTORS AND OFFICERS
No contract or transaction between the Corporation and one or more of its
Directors or Officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of the
Directors or Officers of the Corporation are Directors, Officers or partners, or
have a financial interest, shall be void or voidable solely by reason of such
relationship, or solely because the Director or Officer is present at or
participates in the meeting of the Board of Directors of the Corporation or
committee thereof that authorizes the contract or transaction, or solely because
his or their votes are counted for such purposes, if any one of the following
conditions are met:
1. The material facts concerning the relationship or interest of the
Director or Officer and the material facts concerning the contract or
transaction are disclosed or are known to the Board of Directors of the
Corporation or the committee thereof that considers the contract or transaction,
and the Board of Directors of the Corporation or committee thereof in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested Directors, even though the disinterested Directors be less
than a quorum; or
2. The material facts concerning the relationship or interest of the
Director or Officer and the material facts concerning the contract or
transaction are disclosed or are known to the Stockholders of the Corporation
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by the Stockholders of the Corporation at any annual or
special meeting of Stockholders called for that purpose; or
3. The contract or transaction is fair to the Corporation at the time it
is authorized, approved or ratified by the Board of Directors of the
Corporation, a committee thereof, or the Stockholders of the Corporation.
Common or interested Directors may be counted in determining the presence
of a quorum at a meeting or the Board of Directors of the Corporation or of a
committee thereof that authorizes such contract or transaction.
ARTICLE TEN
INDEMNIFICATION
Section 1. Indemnification of Directors and Officers. Each person who was
or is made 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, arbitrative or investigative, any appeal in such
action, suit or proceeding, and any inquiry or investigation that could lead to
such an action, suit, or proceeding (the "Proceeding"), by reason of the fact
5
that he is or was an Officer or a Director of the Corporation, or who, while a
Director or Officer of the Corporation, is or was serving at the request of the
Corporation as a Director, Officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by the DGCL against all judgments, penalties (including
excise and similar taxes), fines, settlements, and reasonable expenses
(including attorneys' fees) actually incurred by such person in connection with
such Proceeding. Such right shall be a contract right and as such shall run to
the benefit of any Director or Officer who is elected and accepts the position
of Director or Officer of the Corporation or who elects to continue to serve as
a Director or Officer of the Corporation, while the provisions of this Article
Ten are in effect. Such right shall include the right to require advancement by
the Corporation of reasonable expenses (including attorneys' fees) incurred in
defending any such Proceeding in advance of its final disposition; provided,
however, that the payment of such expenses in advance of the final disposition
of such Proceeding shall be made by the Corporation only upon delivery to the
Corporation of a written affirmation by such person of his good faith belief
that he has met the standard of conduct necessary for indemnification under the
DGCL and a written undertaking, by or on behalf of such person, to repay all
amounts so advanced if it should be ultimately determined that such person has
not satisfied such requirements. Any repeal or modification of this Section 1 by
the Stockholders of the Corporation shall be prospective only and shall not
limit the rights of a Director or Officer of the Corporation or the obligations
of the Corporation with respect to any claim for indemnification in accordance
with the provisions of this Article Ten arising from or related to the acts or
inactions of such Director or Officer prior to any such repeal or modification.
Section 2. Nature of Indemnification. The indemnification and advancement
of expenses provided for herein shall not be deemed exclusive of any other
rights permitted by law to which a person seeking indemnification may be
entitled under any Bylaw, agreement, vote of Stockholders or otherwise, and
shall continue as to a person who has ceased to be a Director or Officer of the
Corporation and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 3. Insurance. The Corporation shall have power to purchase and
maintain insurance or another arrangement 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, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan 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 this Article or the DGCL.
ARTICLE ELEVEN
ARRANGEMENT WITH CREDITORS
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.
6
ARTICLE TWELVE
AMENDMENT OF BYLAWS
The Board of Directors of the Corporation shall have the power to adopt,
alter, amend or repeal the Bylaws of the Corporation. Notwithstanding the
preceding, the Stockholders of the Corporation shall also have the power to
adopt, alter, amend or repeal the Bylaws of the Corporation.
ARTICLE THIRTEEN
AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation or in its Bylaws in the
manner now or hereafter prescribed by the DGCL or this Certificate of
Incorporation, and all rights conferred on Stockholders herein are granted
subject to this reservation.
ARTICLE FOURTEEN
CAPTIONS
The captions used in this Certificate of Incorporation are for convenience
only and shall not be construed in interpreting the provisions hereof.
ARTICLE FIFTEEN
INCORPORATOR
The name and address of the incorporator are as follows:
Name Address City, State
- ---- ------- -----------
Spencer G. Feldman Greenberg Traurig, LLP New York, New York 10166
200 Park Avenue
IN WITNESS WHEREOF, I, the undersigned, for the purpose of forming the
Corporation under the laws of the State of Delaware, do make and file this
Certificate of Incorporation and do certify that this is my act and deed and
that the facts stated therein are true under penalties of perjury, and,
accordingly, I do hereunto set my hand to this Certificate of Incorporation on
this __ day of March 2005.
INCORPORATOR:
Spencer G. Feldman