**Exhibit 3.1**

 

FIRST RESTATED CERTIFICATE OF INCORPORATION

OF

LIME ENERGY CO.

 

Thename of the corporation (hereinafter, the “Corporation”) is Lime EnergyCo.  The Corporation was incorporatedunder the name of “Electric City Corp.” pursuant to the filing of its originalCertificate of Incorporation (the “Original Certificate of Incorporation”) withthe Secretary of State of Delaware on May 11, 1998.  This First Restated Certificate ofIncorporation of the Corporation (the “Restated Certificate of Incorporation”)was adopted by the board of directors without a vote of the stockholderspursuant to Section 245 of the General Corporation Law of the State ofDelaware, and only restates and integrates and does not further amend theprovisions of the Corporation’s Original Certificate of Incorporation as theretoforeamended or supplemented, and there is no discrepancy between those provisionsand the provisions of this Restated Certificate of Incorporation.

 

1.                                       CorporateName.  The name of the corporation(hereinafter, the “Corporation”) is Lime Energy Co.

 

2.                                       RegisteredOffice and Agent. The address, including street, number, city and county, ofthe registered office of the Corporation in the State of Delaware is 1209Orange Street, Wilmington, DE 19801 in the County of New Castle. The name ofthe registered agent of the Corporation in the State of Delaware at suchaddress is The Corporation Trust Company.

 

3.                                       Purposes. Thenature of the business of the Corporation and the objects or purposes to be transacted,promoted, conducted or carried on by it are as follows: To engage in any lawfulact or activity for which corporations may be organized under the GeneralCorporation Law of the State of Delaware.4.   AuthorizedCapital Stock. The total number of shares of stock which the Corporation shallhave authority to issue is 55,000,000, consisting of 50,000,000 shares ofCommon Stock, with a par value of $.0001 per share, and 5,000,000 shares ofPreferred Stock, with a par value of $.01 per share (hereinafter, the “CapitalStock”).

 

(a)                                  Preferred Stock.The Preferred Stock may be issued from time to time in one or more series. The authorityis expressly vested in the Board of Directors to establish and designate theseries and to fix the rights, preferences, privileges and restrictions of anyseries of the Preferred Stock, including, without limitation, those relating toany dividend rights and terms, conversion rights, voting rights, redemption rightsand terms, liquidation preferences and sinking fund terms.

 

(b)                                 Voting Rights.Except as may otherwise be provided by applicable law, each share of CommonStock shall be entitled to vote as one class for election of directors and onall other matters which may be submitted to a vote of stockholders of the Corporation.

 

(c)                                  Dividends. Dividendsmay be declared from time to time on the Common Stock at the discretion of the boardof directors of the Corporation and in accordance with the provisions of the GeneralCorporation Law of the State of Delaware.

 

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(d)                                 AdditionalIssuances. At any time and from time to time while shares of Common Stock are outstanding,the Corporation may create one or more series or one or more classes of capitalstock senior to or on a parity with the shares of Common Stock in payment of dividendsor upon liquidation, dissolution or winding up.

 

5.             Additional Provisions. For themanagement of the business and for the conduct of the affairs of the Corporation,and in further definition, limitation and regulation of the powers of the Corporationand of its directors and stockholders, the following additional provisions areset forth and made a part of this Certificate of Incorporation:

 

(a)                              The number of directors whichshall constitute the whole board of directors of the Corporation shall be fixedby, or in the manner provided in, the by-laws of the Corporation, but suchnumber may from time to time be increased or decreased in such manner as may beprescribed by the by-laws. The election of directors need not be by ballot.

 

(b)                             In furtherance and not in limitationof the powers conferred by the laws of the State of Delaware, the board of directorsof the Corporation is expressly authorized and empowered:

 

1.                                       to make, alter,amend and repeal the by-laws of the Corporation, except as otherwise provided orpermitted under the General Corporation Law of the State of Delaware and exceptthat any by law which, in accordance with the provisions of the by-laws, may bealtered, amended or repealed only by the stockholders may not be altered, amendedor repealed by the directors;

 

2.                                   subject to theapplicable provisions of the by-laws then in effect, to determine, from time totime, whether and to what extent and at what times and places and under what conditionsand regulations the accounts and books of the Corporation, or any of them, shallbe open to the inspection of the stockholders; and no stockholder shall have anyright, except as conferred by the laws of the State of Delaware, to inspect anyaccount or book or document of the Corporation unless and until authorized so todo by resolution of the board of directors or the stockholders of the Corporation;

 

3.                                   without the assentor vote of the stockholders of the Corporation, to authorize and issue obligationsof the Corporation, secured or unsecured, to include therein such provisions asto redeem-ability, convertibility or otherwise, as the board of directors, inits sole discretion, may determine, and to authorize the mortgaging or pledging,as security therefor, of any property of the Corporation, real or personal, includingafter-acquired property;

 

4.                                   to determine whetherany, and if any, what part, of the surplus of the Corporation or, in the eventthere shall be no such surplus, of

 

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thenet profits of the Corporation for the then current fiscal year or the then immediatelypreceding fiscal year shall be declared in dividends and paid to the stockholders,and to direct and determine the use and disposition of any such surplus or suchnet profits;

 

5.                                   to fix from timeto time the amount of profits of the Corporation to be reserved as working capitalor for any other lawful purpose; and

 

6.                                       to establishbonus, profit-sharing or other types of incentive or compensation plans for employees(including officers and directors) of the Corporation and to fix the amount of profitsto be distributed or shared and to determine the persons to participate in any suchplans and the amounts of their respective participation.

 

In addition to the powers and authorities hereinbeforeor by statute expressly conferred upon it, the board of directors may exerciseall such powers and do all such acts and things as may be exercised or done bythe Corporation, subject, nevertheless, to the provisions of the laws of theState of Delaware and the Certificate of Incorporation and the by-laws of the Corporation.

 

(c)                                  Any director or any officer electedor appointed by the stockholders or by the board of directors may be removed atany time in such manner as shall be provided in the by-laws of the Corporation.

 

(d)                                 Subject to any limitations inthe by-laws of the Corporation, the members of the board of directors shall beentitled to reasonable fees, salaries or other compensation for their services andto reimbursement for their expenses as such members. Nothing contained hereinshall preclude any director from serving the Corporation or any subsidiary or affiliatedcorporation, in any other capacity and receiving proper compensation therefor.

 

(e)                                  If the by-laws of the Corporationso provide, the stockholders and board of directors of the Corporation shallhave power to hold their meetings, to have an office or offices and to keep thebooks of the Corporation, subject to the provisions of the laws of the State ofDelaware at such place or places as may from time to time be designated by theboard of directors.

 

(f)                                    Whenever a compromise or arrangementis proposed between the Corporation and its creditors or any class of them and/orbetween the Corporation and its stockholders or any class of them, any court ofequitable jurisdiction within the State of Delaware may, on the application ina summary way of the Corporation or of any creditor or stockholder thereof oron the application of any receiver or receivers appointed for the Corporation underthe provisions of Section 291 of Title S of the Delaware Code or on the applicationsof trustees in 

 

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dissolutionor of any receiver or receivers appointed for the Corporation under theprovisions of Section 279 of Title S of the Delaware Code, order a meetingof the creditors or class of creditors, and/or of the stockholders or class ofstockholders of the Corporation, as the case may be, to be summoned in such a manneras the said court directs. If a majority in number representing three-fourths invalue of the creditors or class of creditors, and/or of the stockholders orclass of stockholders of the Corporation, as the case may be, agree to any compromiseor arrangement and to any reorganization of the Corporation, as consequence of suchcompromise or arrangement, the said compromise or arrangement and the said reorganizationshall, if sanctioned by the court to which the said application has been made, bebinding on all the creditors or class of creditors, and/or on all thestockholders or class of stockholders, of the Corporation, as the case may be, andalso on the Corporation.

 

6.             Indemnification and Insurance. The boardof directors of the Corporation may, by resolution adopted from time to time,indemnify such persons as permitted by the General Corporation Law of the Stateof Delaware as amended from time to time. The board of directors of theCorporation may, by resolution adopted from time to time, purchase and maintaininsurance on behalf of such persons as permitted by the General Corporation Lawof the State of Delaware as amended from time to time.

 

7.             Liability of Directors. Nodirectors of the Corporation shall be personally liable to the Corporation orits stockholders for monetary damages for breach of fiduciary duty as adirector, except for liability (i) for any breach of the director’s dutyof loyalty to the Corporation or its stockholders (ii) for acts or omissionsnot in good faith or which involves intentional misconduct or a knowingviolation of law, (iii) under Section 174 of the General CorporationLaw of the State of Delaware, as the same exists or hereafter may be amended,or (iv) for any transaction from which the director derived an improper personalbenefit. Any repeal or modification of this paragraph by the stockholders ofthe Corporation shall be prospective only, and shall not adversely affect the Corporationexisting at the time of such repeal or modification. Nothing herein shall limitor otherwise affect the obligation or right of the Corporation to indemnify itsdirectors pursuant to the provisions of this Certificate of Incorporation, the by-lawsof the Corporation or as may be permitted by the General Corporation Law of theState of Delaware.

 

8.             Amendment. Any of the provisions ofthis Certificate of Incorporation may from time to time be amended, altered orrepealed, and other provisions authorized by the laws of the State of Delawareat the time in force may be added or inserted in the manner and at the time prescribedby said laws. And all rights at any time conferred upon the stockholders of theCorporation by this Certificate of Incorporation are granted subject to theprovisions of this Section 9.

 

Theundersigned, being an authorized officer of the Corporation, for the purposesof restating the Original Certificate of Incorporation, under the laws of theState of Delaware, does make, file and record this certificate and does herebycertify that the facts stated herein are true; and the undersigned has hereuntoaccordingly set his hand.

 
| Dated:  December 18, 2009 |                    |
|--------------------------------|-------------------------|
|                           |                    |
|                           | /s/  Jeffrey R. Mistarz |
|                           | Jeffrey  R. Mistarz     |

 

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