ex10_1certificateofincorp.htm


    EXHIBIT
      10.1

    
 

    SECOND
      RESTATED CERTIFICATE

     

    OF

     

    INCORPORATION

     

    OF

     

    NESTOR,
      INC.

    


    


    
      	
               

            	
              FIRST:  The
                name of the corporation is:

            


    

     

    NESTOR,
      INC.

     

    SECOND:
      The registered office of the corporation is to be located at 306 South State
      Street, in the City of Dover, in the County of Kent, in the State of Delaware.
      The name of its registered agent at that address is the United States
      Corporation Company.

     

    THIRD:
      The purpose of the corporation is to engage in any lawful act or activity for
      which a corporation may be organized under the General Corporation Law of
      Delaware.

     

    Without
      limiting in any manner the scope and generality of the foregoing, it is hereby
      provided that the corporation shall have the following purposes, objects and
      powers:

     

    To
      purchase, manufacture, produce, assemble, receive, lease or in any manner
      acquire, hold, own, use, operate, install, maintain, service, repair, process,
      alter, improve, import, export, sell, lease, assign, transfer and generally
      to
      trade and deal in and with raw materials, natural or manufactured articles
      or
      products, machinery, equipment, devices, systems, parts, supplies, apparatus,
      goods, wares, merchandise and personal property of every kind, nature or
      description, tangible or intangible, used or capable of being used for any
      purpose whatsoever, and to engage and participate in any mercantile,
      manufacturing or trading business of any kind or character.

     

    To
      improve, manage, develop, sell, assign, transfer, lease, mortgage, pledge or
      otherwise dispose of or turn to account or deal with all or any part of the
      property of the corporation and from time to time to vary any investment or
      employment of capital of the corporation.

     

    To
      borrow
      money, and to make and issue notes, bonds, debentures, obligations and evidences
      of indebtedness of all kinds, whether secured by mortgage, pledge or otherwise,
      without limit as to amount, and to secure the same by mortgage, pledge or
      otherwise, and generally to make and perform agreements and contacts of every
      kind and description, including contracts or guaranty and
      suretyship.

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    


    To
      lend
      money for its corporate purposes, invest and reinvest its funds, and take,
      hold
      and deal with real and personal property as security for the payment of funds
      so
      loaned or invested.

     

    To
      the
      same extent as natural persons might or could do, to purchase or otherwise
      acquire, and to hold, own, maintain, work, develop sell, lease, exchange, hire,
      convey, mortgage or otherwise dispose of and deal in lands and leaseholds,
      and
      any interest, estate and rights in a real property, and any personal or mixed
      property, and any franchises, rights, licenses or privileges necessary,
      convenient or appropriate for any of the purposes herein expressed.

     

    To
      apply
      for, obtain, register, purchase, lease or otherwise to acquire and to hold,
      own,
      use, develop, operate and introduce and to sell, assign, grant licenses or
      territorial rights in respect to, or otherwise to turn to account or dispose
      of,
      any copyrights, trade marks, trade names, brands, labels, patent rights, letters
      patent of he United States or of any other country or government, inventions,
      improvements and processes, whether used in connection with or secured under
      letters patent or otherwise.

     

    To
      participate with others in any corporation, partnership, limited partnership,
      joint venture, or other association of any kind, or in any transaction,
      undertaking or arrangement which the participating corporation would have power
      to conduct by itself, whether or not such participation involves sharing or
      delegation of control with or to others; and to be an incorporator, promoter
      or
      manager of other corporations of any type or kind.

     

    To
      pay
      pensions and establish and carry out pension, profit sharing, stock option,
      stock purchase, stock bonus, retirement, benefit, incentive and commission
      plans, trusts and provisions for any or all of its directors, officers and
      employees, and for any or all of the directors, officers and employees of its
      subsidiaries; and to provide insurance for its benefit on the life of any of
      its
      directors, officers or employees, or on the life of any stockholder for the
      purpose of acquiring at his death shares of its stock owned by such
      stockholders.

     

    To
      acquire by purchase, subscription or otherwise, and to hold for investment
      or
      otherwise and to use, sell, assign, transfer, mortgage, pledge or otherwise
      deal
      with or dispose of stocks, bonds or any other obligations or securities of
      any
      corporation or corporations; to merge or consolidate with any corporation in
      such manner as may be permitted by law; to aid in any manner any corporation
      whose stocks, bonds or other obligations are held or in any manner guaranteed
      by
      this corporation, or in which this corporation is in any way interested; and
      to
      do any other acts or things for the preservation, protection, improvement or
      enhancement of the value of any such stock, bonds, or other obligations; and
      while owner of any such stock, bonds or other obligations to exercise all the
      rights, powers and privileges of ownership thereof, and to exercise any and
      all
      voting powers thereon; and to guarantee the payment of dividends upon any stock,
      the principal or interest or both, of any bonds or other obligations, and the
      performance of any contracts.

     

    
      
        
        

      

      
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    To
      do all
      and everything necessary, suitable and proper for the accomplishment of any
      of
      the purposes or the attainment of any of the objects or the furtherance of
      any
      of the powers hereinbefore set forth, either alone or in association with other
      corporations, firms or individuals, and to do every other act or acts, thing
      or
      things incidental or appurtenant to or growing out of or connected with the
      aforesaid business or powers or any part or parts thereof, provided the same
      be
      not inconsistent with the laws under which this corporation is
      organized.

     

    The
      business or purpose of the corporation is from time to time to do any one or
      more of the acts and things hereinabove set forth, and it shall have power
      to
      conduct and carry on its said business, or any part thereof, and to have one
      or
      more offices, and to exercise any or all of its corporate powers and rights,
      in
      the State of Delaware, and in the various other states, territories, colonies
      and dependencies of the United States, in the District of Colombia, and in
      all
      or any foreign countries.

     

    The
      enumeration herein of the objects and purposes of the corporation shall be
      construed as powers as well as objects and purposes and shall not be deemed
      to
      exclude by inference any powers, objects or purposes which the corporation
      is
      empowered to exercise, whether expressly by force of the laws of the State
      of
      Delaware now or hereafter in effect, or impliedly by the reasonable construction
      of the said laws..

     

    FOURTH:
      The total number of shares of stock which the Corporation shall have authority
      to issues is Fifty Million (50,000,000) shares of Common Stock, par value $.01
      per share (hereinafter called “Common Stock”) and Ten Million (10,000,000)
      shares of Preferred Stock, par value $1.00 per share (hereinafter called
“Preferred Stock”).  The Preferred Stock may be issued from time to
      time in series and shall be so designated as to distinguish the shares thereof
      from the shares of all other series. All shares of Preferred Stock shall be
      identical except as expressly determined by the board of directors pursuant
      to
      this Article. The board of directors is vested with authority to establish
      and
      designate series, to fix the number of shares therein, and before issuance
      of
      any shares of a particular series, to fix the variations and the relative
      rights, preferences and limitations as between series including the dividend
      rate, whether dividends shall be cumulative and if so from which date or dates,
      voting rights, liquidation rights, the redemption price or prices, if any,
      and
      the terms and conditions of the redemption, any sinking fund provisions for
      the
      redemption or purchase of the shares of the series, and the terms and conditions
      on which the shares are convertible, if they are convertible.

     

    Pursuant
      to the authority conferred by this Article FOURTH, the following series of
      Preferred Stock has been designated, such series consisting of such number
      of
      shares, with such voting powers and with such designations, preferences and
      relative, participating, optional or other special rights, and qualifications,
      limitations or restrictions therefor as are stated and expressed in Exhibit
      A
      attached hereto and incorporated herein by reference:

     

    
      
        
        

      

      
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    Exhibit
      A: Series B Convertible Preferred Stock

     

    FIFTH:
      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:

     

    (1)
      The
      number of directors of the corporation shall be such as from time to time shall
      be fixed by, or in the manner provided in the by-laws. Election of directors
      need not be by ballot unless the by-laws so provide. Directors shall be elected
      annually, and except as set forth in this paragraph in connection with the
      initial classification of directors, shall serve for terms of three years.
      The
      directors shall be divided into three classes, as nearly equal in number as
      possible, with the initial term of office of the first class (“Class I”) to
      expire at the 2008 annual meeting of stockholders, the term of office of the
      second class (“Class II”) to expire at the 2009 annual meeting of stockholders
      and the term of office of the third class (“Class III”) to expire at the 2010
      annual meeting of stockholders. At each annual meeting of stockholders following
      such initial classification and election, directors elected to succeed those
      directors whose terms expire shall be elected for a three-year term of office
      and until the election and qualification of their respective successors in
      office.

     

    (2)
      The
      Board of Directors shall have power without the assent or vote of the
      stockholders to make, alter, change, add to or repeal the by-laws of the
      corporation; to fix and vary the amount to be reserved for any proper purpose;
      to authorize and cause to be executed mortgages and liens upon all or any part
      of the property of the corporation; to determine the use and disposition of
      any
      surplus or net profits; and to fix the times for the declaration and payment
      of
      dividends.

     

    (3)
      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 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 as 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' interest, or for any other reason.

     

    (4)
      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, and to any by-laws from time to time made by
      the
      stockholders; provided, however, that no by-laws so made shall invalidate any
      prior act of the directors which would have been valid if such by-law had not
      been made.

     

    
      
        
        

      

      
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    SIXTH:
      The corporation shall, to the full extent permitted by Section 145 of the
      Delaware General Corporation Law, as amended from time to time, indemnify all
      persons whom it may indemnify pursuant thereto.

     

    SEVENTH:
      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 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 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.

     

    EIGHTH:
      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 law, and all rights and powers conferred herein on
      stockholders, directors and officers are subject to this reserved
      power.

     

    NINTH:
      No
      Director shall be personally liable to the corporation or any stockholder for
      monetary damage for breach of fiduciary duty as a director, except for any
      matter in respect of which such director shall be liable under Section 174
      of
      Title 8 of the Delaware Code (relating to the Delaware General Corporation
      Law)
      or any amendments thereto or successor provision thereto or shall be liable
      by
      reason that, in addition to any and all other requirements for such liability,
      he (i) shall have breached his duty of loyalty to the corporation or its
      stockholders, (ii) shall not have acted in good faith or, in failing to act,
      shall not have acted in good faith, (iii) shall have acted in a manner involving
      intentional misconduct or a knowing violation of law or, in failing to act,
      shall have acted in a manner involving intentional misconduct or a knowing
      violation of law or (iv) shall have derived an improper personal benefit.
      Neither the amendment nor repeal of this Article, nor the adoption of any
      provision of the certificate of incorporation inconsistent with this Article,
      shall eliminate or reduce the effect of this Article in respect of any matter
      occurring, or any cause of action, suit or claim that, but for this Article
      would accrue or arise, prior to such amendment, repeal or adoption of an
      inconsistent provision.

     

    


    
      
        
          
          

        

        
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    IN
      WITNESS WHEREOF, this Restated Certificate of which only restates and integrates
      and does not further amend the provisions of the Certificate of Incorporation
      of
      this Corporation as heretofore amended or supplemented, there being no
      discrepancies between those provisions and the provisions of this Restated
      Certificate of Incorporation, and it having been duly adopted by the
      Corporation's Board of Directors in accordance with Section 245 of the Delaware
      General Corporation Law, has been executed by its duly authorized officer this
      12th day of December 2007.

     

     

    
      	 	 	
              NESTOR,
                INC.

            
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	
              /s/
                Brian R. Haskell

            
	 	
              Name:  
                

            	
              Brian
                R. Haskell

            
	 	
              Title:  
                

            	
              Vice
                President and General Counsel

            


    

    


     

     

     
      
        

      

    

     

    EXHIBIT
      A

     

     

    Designation,
      Rights and Preferences

    of
      the
      Series B Convertible Preferred Stock

    $1.00
      Par
      Value of Nestor, Inc.

     

     

    The
      voting powers, preferences and rights of the Series B Preferred Stock of the
      Corporation ("Series B Convertible Preferred") are as follows:

     

    1.
      DESIGNATION AND AMOUNT. The number of shares constituting the series designated
      as Series B Convertible Preferred shall be 3,000,000.

     

    2.
      DIVIDENDS. The holders of the Series B Convertible Preferred shall be entitled
      to receive, when and as declared by the Board of Directors of the Corporation,
      dividends (or other distributions) equal to the amount of dividends (or other
      distributions) declared and paid on the number of shares or Common Stock, $.01
      par value, of the Corporation ("Common Stock") into which such shares of the
      Series B Convertible Preferred may be converted.

    


    
      
        
          
          

        

        
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               3.

            	
              CONVERSION
                RIGHTS.

            


    

    


    (a)
      Subject to adjustment as provided for by this Section 3, each share of the
      Series B Convertible Preferred shall be convertible, at the option of the
      holder, at any time and from time to time, into one fully paid and nonassessable
      share of the Corporation's Common Stock.

     

    (b)
      In
      order to convert any shares of Series B Convertible Preferred into Common Stock,
      the holder shall give written notice to the Corporation setting forth the number
      of shares to be converted and accompanied by a certificate for the Series B
      Convertible Preferred to be converted (duly endorsed) to the Corporation,
      whereupon the holder shall be deemed to subscribe for the amount of Common
      Stock
      which the holder shall be entitled to receive upon conversion, and the
      Corporation shall be deemed to accept the shares of Series B Convertible
      Preferred being surrendered in full payment of the subscription price for the
      shares of Common Stock to be delivered upon conversion.

     

    (c)
      The
      Corporation, as soon an practicable, after notice of conversion and surrender
      of
      the certificate for the Series B Convertible Preferred being converted, shall
      deliver to the holder a certificate for the number of shares of Common Stock
      to
      which a holder is entitled. Conversion of the shares of Series B Convertible
      Preferred shall be deemed to have been made as of the date of surrender of
      the
      certificate for the Series B Convertible Preferred being converted, and the
      holder of such shares shall be treated for all purposes as the record holder
      of
      Common Stock as of that date.

    


    (d)  The
      conversion provided for by section 3(a) shall be adjusted as
      follows:

     

    (i)
      If
      the Corporation shall: (A) declare or pay a dividend or make any other
      distribution on its Common Stock in shares of its Common Stock; (B) subdivide
      its outstanding Common Stock into a greater number of shares; or (C) combine
      its
      outstanding Common Stock into a smaller number of shares, the conversion
      privilege in effect at the time of the record date of such a dividend,
      subdivision, or combination shall be adjusted so that the holder of the Series
      B
      Convertible Preferred surrendered for conversion after such time shall be
      entitled to receive the number of shares of Common Stock which the holder would
      have been entitled to receive had the holder converted such shares of Series
      B
      Convertible Preferred immediately prior to the record date for the event giving
      rise to the adjustment.

     

    
      
        
        

      

      
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    (ii)
      If
      the Corporation shall consolidate or merge with or into any other corporation
      or
      other entity, or sell or transfer all or substantially all of its assets to
      any
      other entity or person, or effect a capital reorganization or reclassify its
      shares of Common Stock, then, and in each such case, adequate provision shall
      be
      made whereby each holder of the Series B Convertible Preferred then outstanding
      upon exercise of the conversion privilege shall be entitled to receive the
      kind
      and amount of securities, cash and other property which such holder would have
      been entitled to receive had the holder converted the Series B Convertible
      Preferred held immediately prior to any such consolidation, merger, sale,
      transfer, reorganization or reclassification. In any such case appropriate
      provision shall be made with respect to the rights and interests of such holder
      of Series B Convertible Preferred to the end that the provisions hereof shall
      thereafter be applicable, as nearly as may be, in relation to any shares of
      stock, securities or other property thereafter deliverable upon the exercise
      of
      such conversion privilege; and, as a condition of any such consolidation,
      merger, or conveyance, any corporation or entity that shall become successor
      to
      the Corporation by reason of such consolidation, merger or conveyance shall
      expressly assume the obligation to deliver, upon the exercise of the conversion
      privilege, such shares of stock, securities or other property or consideration
      as the holders of shares of the Series B Convertible Preferred Stock shall
      be
      entitled to receive pursuant to the provisions hereof. The foregoing provisions
      shall similarly apply to successive classifications, reclassifications, or
      other
      reorganizations and to successive consolidations, mergers, and conveyances
      of or
      by any such successor.

     

    (iii)
      If,
      as a result of any adjustment made pursuant to this Section 3(d), the holder
      of
      Series B Convertible Preferred shall become entitled to receive upon conversion
      any shares of capital stock of the Corporation other than shares of its Common
      Stock, the number of such other shares receivable upon conversion shall be
      adjusted from time to time in a manner consistent with the adjustment provided
      for by this Section 3.

     

    (iv)
      Whenever any adjustment is required in the number of shares of Common Stock
      or
      other capital stock into which each share of Series B Convertible Preferred
      is
      convertible, the Corporation shall: (A) file with its stock record books a
      statement describing in reasonable detail the adjustment and the calculation
      used in determining that adjustment; and (B) deliver a copy of that statement
      to
      the holder of record of Series B Convertible Preferred.

     

    (e)
      The
      Corporation shall take all steps necessary to reserve and keep available a
      number of its authorized but unissued shares of Common Stock sufficient for
      issuance upon conversion of the Series B Convertible Preferred, for issuance
      upon conversion of any other securities convertible into Common Stock, and
      for
      issuance upon exercise of any outstanding rights, warrants or options to
      purchase Common Stock. All shares of Common Stock issued upon the conversion
      of
      shares of Series B Convertible Preferred shall be validly issued and fully
      paid
      and nonassessable.

     

    (f)
      The
      Corporation shall pay any taxes that may be payable in respect of the issue
      or
      delivery of shares of Common Stock on conversion.

     

    
      
        
        

      

      
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    4.
      LIQUIDATION RIGHTS. Upon the dissolution, liquidation or winding up of the
      Corporation, whether voluntary or involuntary, the holder of shares of the
      Series B Convertible Preferred shall be entitled to receive out of the assets
      of
      the Corporation available for distribution to stockholders, the amount of $1.00
      per share, plus an amount equal to all dividends on such shares accrued but
      unpaid, after the holders of any other stock ranking senior to the Series B
      Convertible Preferred upon liquidation, dissolution or winding up of the
      Corporation have received the preferential amount to which they are entitled
      and
      before any payment or distribution shall be made on the Common Stock or on
      any
      other class of stock ranking junior to the Series B Convertible Preferred upon
      liquidation, dissolution or winding up of the Corporation. For purposes of
      this
      Section 4, the merger or consolidation of the Corporation with another entity,
      or the sale by the Corporation of any part of its assets to any other entity,
      shall not be deemed to be a liquidation, dissolution or winding up of the
      Corporation. If the assets of the Corporation available for distribution to
      the
      holders of shares of the Series B Convertible Preferred shall be insufficient
      to
      pay in full all amounts to which such holders are entitled, no distribution
      shall be made to holders of shares of any other class of stock of the
      Corporation ranking an a parity with the shares of the Series B Convertible
      Preferred upon liquidation, dissolution or winding up of the Corporation unless
      proportionate distributive amounts shall be paid to the holders of the shares
      of
      the Series B Convertible Preferred, ratably, in proportion to the full
      distributable amounts to which holders of all such other parity shares are
      entitled. After payment in full of the preferential amounts provided for in
      this
      Section 4, the holders of the Series B Convertible Preferred as such shall
      have
      no right or claim to any of the remaining assets of the Corporation. The holders
      of the Series B Convertible Preferred shall rank on a parity with the holders
      of
      the Series A Preferred of the Corporation upon the liquidation, dissolution
      or
      winding up of the Corporation subject to the provisions of this Section 4 and
      the Liquidation Rights of the holders of the Series A Preferred.

     

    5.
      VOTING
      RIGHTS. The holders of Series B Convertible Preferred shall be entitled to
      one
      (1) vote for each share of Common Stock into which the Series B Convertible
      Preferred shall be convertible as provided for by Section 3 hereof on all
      matters submitted to a vote of stockholders of the Company and shall be entitled
      to and receive notice of meetings of stockholders of the Company and of
      stockholder consents; and the holders of the Series B Convertible Preferred
      shall have the same voting rights on a share for share basis as the holders
      of
      the Common Stock, and the holders of the Common Stock and Series B Convertible
      Preferred shall vote together as one class on all matters submitted to a vote
      of
      stockholders of the Company.

     

    


    


    
      
        
          
          

        

        
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