CERTIFICATE OF INCORPORATION
OF
ARGYLE SECURITY ACQUISITION CORPORATION
- --------------------------------------------------------------------------------
PURSUANT TO SECTION 102 OF THE
DELAWARE GENERAL CORPORATION LAW
- --------------------------------------------------------------------------------
I, the undersigned, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "GCL"), do hereby certify as
follows:
FIRST: The name of the corporation is Argyle Security Acquisition
Corporation.
SECOND: The registered office of the Corporation is to be located at
615 South DuPont Highway, Kent County, Dover, Delaware. The name of its
registered agent at that address is National Corporate Research, Ltd.
THIRD: The purpose of the Corporation shall be to engage in any
lawful act or activity for which corporations may be organized under the GCL.
FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 90,000,000 of which
1,000,000 shares shall be Common Stock of the par value of $.0001 per share and
89,000,000 shares shall be Preferred Stock of the par value of $.0001 per share.
A. Preferred Stock. The Board of Directors is expressly granted
authority to issue shares of the Preferred Stock, in one or more series, and to
fix for each such series such voting powers, full or limited, and such
designations, preferences and relative, participating, optional or other special
rights and such qualifications, limitations or restrictions thereof as shall be
stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such series (a "Preferred Stock
Designation") and as may be permitted by the GCL. The number of authorized
shares of Preferred 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 voting power of all of the then outstanding shares
of the capital stock of the Corporation entitled to vote generally in the
election of directors (the "Voting Stock"), voting together as a single class,
without a separate vote of the holders of the Preferred Stock, or any series
thereof, unless a vote of any such holders is required pursuant to any Preferred
Stock Designation.
B. Common Stock. Except as otherwise required by law or as otherwise
provided in any Preferred Stock Designation, the holders of the Common Stock
shall exclusively possess all voting power and each share of Common Stock shall
have one vote.
FIFTH: The name and mailing address of the sole incorporator of the
Corporation are as follows:
Name Address
---------------------- ---------------------------
Hope Wankel Loeb & Loeb LLP
345 Park Avenue, 19th Floor
New York, New York 10154
SIXTH: The following provisions (A) through (E) shall apply during
the period commencing upon the filing of this Certificate of Incorporation and
terminating upon the consummation of any "Business Combination," and may not be
amended prior to the consummation of any Business Combination. A "Business
Combination" shall mean the acquisition by the Corporation, whether by merger,
capital stock exchange, asset or stock acquisition or other similar type of
transaction, of an operating business ("Target Business").
A. Prior to the consummation of any Business Combination, the
Corporation shall submit such Business Combination to its stockholders for
approval regardless of whether the Business Combination is of a type which
normally would require such stockholder approval under the GCL. In the event
that the holders of a majority of the outstanding Voting Stock vote for the
approval of the Business Combination, the Corporation shall be authorized to
consummate the Business Combination; provided that the Corporation shall not
consummate any Business Combination if 20% or more in interest of the holders of
IPO Shares (defined below) exercise their conversion rights described in
paragraph B below.
B. Any stockholder of the Corporation holding shares of Common Stock
("IPO Shares") issued in the Corporation's initial public offering ("IPO") of
securities who votes against a proposed Business Combination may,
contemporaneously with such vote, demand that the Corporation convert his IPO
Shares into cash. If a Business Combination is approved in accordance with the
above paragraph A and is consummated by the Corporation, the Corporation shall
convert the shares with respect to which a demand shall have been so made at a
per share conversion price equal to the quotient determined by dividing (i) the
amount in the Trust Fund (as defined below), inclusive of any interest thereon,
as of the record date for determination of stockholders entitled to vote on the
Business Combination, by (ii) the total number of IPO Shares held by the such
holder. "Trust Fund" shall mean the trust account established by the Corporation
at the consummation of its IPO and into which a certain amount of the net
proceeds of the IPO are deposited.
C. In the event that the Corporation does not consummate a Business
Combination by the later of (i) 18 months after the consummation of the IPO or
(ii) 24 months after the consummation of the IPO in the event that either a
letter of intent, an agreement in principle or a definitive agreement to
complete a Business Combination was executed but was not consummated within such
18 month period (such later date being referred to as the "Termination Date"),
the Corporation shall dissolve, and officers of the Corporation shall take all
such action necessary to effect such dissolution and liquidate the Corporation
within sixty days of the Termination Date. In the event that the Corporation is
so dissolved and liquidated, only the holders of IPO Shares shall be entitled to
receive liquidating distributions, and the Corporation shall pay no liquidating
2
distributions with respect to any other shares of capital stock of the
Corporation.
D. A holder of IPO Shares shall be entitled to receive distributions
from the Trust Fund only in the event of a liquidation of the Corporation or in
the event he demands conversion of his shares in accordance with paragraph B,
above. In no other circumstances shall a holder of IPO Shares have any right or
interest of any kind in or to the Trust Fund.
SEVENTH: The Board of Directors shall be divided into three classes:
Class A, Class B and Class C. The number of directors in each class shall be as
nearly equal as possible. At the first election of directors by the
incorporator, the incorporator shall elect a Class C director for a term
expiring at the Corporation's third Annual Meeting of Stockholders. The Class C
director shall then elect additional Class A, Class B and Class C directors. The
directors in Class A shall be elected for a term expiring at the first Annual
Meeting of Stockholders, the directors in Class B shall be elected for a term
expiring at the second Annual Meeting of Stockholders and the directors in Class
C shall be elected for a term expiring at the third Annual Meeting of
Stockholders. Commencing at the first Annual Meeting of Stockholders, and at
each annual meeting thereafter, directors elected to succeed those directors
whose terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election. Except as the
GCL may otherwise require, in the interim between annual meetings of
stockholders or special meetings of stockholders called for the election of
directors and/or the removal of one or more directors and the filling of any
vacancy in that connection, newly created directorships and any vacancies in the
Board of Directors, including unfilled vacancies resulting from the removal of
directors for cause, may be filled by the vote of a majority of the remaining
directors then in office, although less than a quorum (as defined in the
Corporation's Bylaws), or by the sole remaining director. All directors shall
hold office until the expiration of their respective terms of office and until
their successors shall have been elected and qualified. A director elected to
fill a vacancy resulting from the death, resignation or removal of a director
shall serve for the remainder of the full term of the director whose death,
resignation or removal shall have created such vacancy and until his successor
shall have been elected and qualified.
EIGHTH: The following provisions are inserted for the management of
the business and for the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the Corporation
and of its directors and stockholders:
A. Election of directors need not be by ballot unless the by-laws of
the Corporation so provide.
B. The Board of Directors shall have the power, without the assent
or vote of the stockholders, to make, alter, amend, change, add to or repeal the
by-laws of the Corporation as provided in the by-laws of the Corporation.
C. The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
3
the vote of the holders of a majority of the stock of the Corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and binding upon the Corporation and upon all the
stockholders as though it had been approved or ratified by every stockholder of
the Corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors' interests, or for any other reason.
D. In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, of this Certificate of Incorporation, and to any by-laws
from time to time made by the stockholders; provided, however, that no by-law so
made shall invalidate any prior act of the directors which would have been valid
if such by-law had not been made.
NINTH: 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 for 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 GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
GCL 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 GCL, as so amended. Any repeal or modification of this paragraph A by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation with respect to events occurring
prior to the time of such repeal or modification.
B. The Corporation, to the full extent permitted by Section 145 of
the GCL, as amended from time to time, shall indemnify all persons whom it may
indemnify pursuant thereto. Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding for which such officer or director may
be entitled to indemnification hereunder shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized hereby.
TENTH: 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
4
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
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.
IN WITNESS WHEREOF, I have signed this Certificate of Incorporation
this 22nd day of June 2005.
/s/ Hope Wankel
----------------------------
Hope Wankel
Sole Incorporator
5
CERTIFICATE OF CORRECTION
FILED TO CORRECT
A CERTAIN ERROR IN THE
CERTIFICATE OF INCORPORATION
OF
ARGYLE SECURITY ACQUISITION CORPORATION
FILED IN THE OFFICE
OF
THE SECRETARY OF STATE OF DELAWARE
ON JUNE 22, 2005
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Argyle Security Acquisition Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is Argyle Security Acquisition Corporation
2. That a Certificate of Incorporation was filed by the Secretary of State
of Delaware on June 22, 2005 and that said certificate requires correction as
permitted by subsection (F) of Section 103 of The General Corporation Law of the
State of Delaware.
3. The inaccuracy or defect of said certificate to be corrected is as
follows: The number of shares that were authorized for issuance as Common Stock
was inadvertently listed as the number of shares authorized for issuance as
Preferred Stock and the number of shares authorized for issuance as Preferred
Stock was inadvertently listed as the number of shares authorized for issuance
as Common Stock.
4. Article FOURTH of the certificate is corrected to read as follows:
FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 90,000,000 of
which 89,000,000 shares shall be Common Stock of the par value of
$.0001 per share and 1,000,000 shares shall be Preferred Stock of
the par value of $.0001 per share.
A. Preferred Stock. The Board of Directors is expressly
granted authority to issue shares of the Preferred Stock, in one or
more series, and to fix for each such series such voting powers,
6
full or limited, and such designations, preferences and relative,
participating, optional or other special rights and such
qualifications, limitations or restrictions thereof as shall be
stated and expressed in the resolution or resolutions adopted by the
Board of Directors providing for the issue of such series (a
"Preferred Stock Designation") and as may be permitted by the GCL.
The number of authorized shares of Preferred 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 voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the
election of directors (the "Voting Stock"), voting together as a
single class, without a separate vote of the holders of the
Preferred Stock, or any series thereof, unless a vote of any such
holders is required pursuant to any Preferred Stock Designation.
B. Common Stock. Except as otherwise required by law or as
otherwise provided in any Preferred Stock Designation, the holders
of the Common Stock shall exclusively possess all voting power and
each share of Common Stock shall have one vote.
IN WITNESS WHEREOF, said Argyle Security Acquisition Corporation has
caused this certificate to be signed by Hope Wankel, Incorporator, this 27th day
of June 2005.
By: /s/ Hope Wankel
------------------------------
Hope Wankel, Incorporator
7