Exhibit 3.1.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ENERGY RECOVERY, INC.
Energy Recovery, Inc., a corporation organized and existing under the laws of the State of
Delaware (the “Corporation”), hereby certifies as follows:
A. The name of this corporation is Energy Recovery, Inc. The Corporation’s original
Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on
March 8, 2001.
B. This Amended and Restated Certificate of Incorporation has been duly approved by the Board
of Directors of the Corporation in accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware (the “DGCL”).
C. This Amended and Restated Certificate of Incorporation has been duly approved by written
consent of the stockholders of the Corporation in accordance with Sections 228, 242 and 245 of the
DGCL.
D. The text of the Certificate of Incorporation of this Corporation is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
The name of the corporation is Energy Recovery, Inc. (the “Corporation”).
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is 1201 Orange
Street, Suite 600, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of
its registered agent at such address is Agents and Corporations, Inc.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by the Corporation is to
engage in any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
Section 1. This Corporation is authorized to issue two classes of stock, to be designated,
respectively, Common Stock and Preferred Stock. The total number of shares of all classes of stock
which this Corporation is authorized to issue is Two Hundred Ten Million (210,000,000) shares, of
which Two Hundred Million (200,000,000) shares are Common Stock, $0.001 par value, and Ten Million
(10,000,000) shares are Preferred Stock, $0.001 par value (the “Preferred Stock”).
Section 2. Each share of Common Stock shall entitle the holder thereof to one (1) vote on any
matter submitted to a vote at a meeting of stockholders.
Section 3. The Preferred Stock may be issued from time to time in one or more
series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board
of Directors (authority to do so being hereby expressly vested in the Board of Directors). The
Board of Directors is further authorized, subject to limitations prescribed by law, to fix by
resolution or resolutions the designations, powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, of any wholly unissued series of Preferred Stock, including
without limitation authority to fix by resolution or resolutions the dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and liquidation preferences of any such series, and the
number of shares constituting any such series and the designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above the total number of
authorized shares of the class) or decrease (but not below the number of shares of any such series
then outstanding) the number of shares of any series, the number of which was fixed by it,
subsequent to the issuance of shares of such series then outstanding, subject to the powers,
preferences and rights, and the qualifications, limitations and restrictions thereof stated in this
Amended and Restated Certificate of Incorporation or the resolution of the Board of Directors
originally fixing the number of shares of such series. If the number of shares of any series is so
decreased, then the Corporation shall take all such steps as are necessary to cause the shares
constituting such decrease to resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
Section 4. Except as otherwise required by law, holders of Common Stock shall not be entitled
to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any
certificate of designation filed with respect to any series of Preferred Stock) that relates solely
to the terms of one or more outstanding series of Preferred Stock if the holders of such affected
series are entitled, either separately or together as a class with the holders of one or more other
such series, to vote thereon by law or pursuant to this Amended and Restated Certificate of
Incorporation (including any certificate of designation filed with respect to any series of
Preferred Stock).
ARTICLE V
Section 1. The number of directors that constitutes the entire Board of Directors shall be
determined in the manner set forth in the Bylaws of the Corporation. At each annual meeting of
stockholders, directors of the Corporation shall be elected to hold office until the expiration of
the term for which they are elected and until their successors have been duly elected and qualified
or until their earlier resignation or removal; except that if any such meeting shall not be so
held, such election shall take place at a stockholders’ meeting called and held in accordance with
the DGCL.
Section 2. The directors of the Corporation shall be divided into three classes as nearly
equal in size as is practicable, hereby designated Class I, Class II and Class III. Directors
shall be assigned to each class in accordance with a resolution or resolutions adopted by the Board
of Directors. At the first annual meeting of stockholders following the date hereof, the term of
office of the Class I directors shall expire and Class I directors shall be elected for a full term
of three years.
At the second annual meeting of stockholders following the date hereof, the term of office of
the Class II directors shall expire and Class II directors shall be elected for a full term of
three years. At the third annual meeting of stockholders following the date hereof, the term of
office of the Class III directors
shall expire and Class III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full term of three
years to succeed the directors of the class whose terms expire at such annual meeting. If the
number of directors is changed,
any newly created directorships or decrease in directorships shall
be so apportioned among the classes as to make all classes as nearly equal in number as is
practicable, provided that no decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
ARTICLE VI
Section 1. Any director or the entire Board of Directors may be removed from office at any
time, but only for cause, and only by the affirmative vote of the holders of at least a majority of
the voting power of the issued and outstanding capital stock of the Corporation entitled to vote in
the election of directors.
Section 2. Except as otherwise provided for or fixed by or pursuant to the provisions of
Article IV hereof in relation to the rights of the holders of Preferred Stock to elect directors
under specified circumstances, newly created directorships resulting from any increase in the
number of directors, created in accordance with the Bylaws of the Corporation, and any vacancies on
the Board of Directors resulting from death, resignation, disqualification, removal or other cause
shall be filled only by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board of Directors, or by a sole remaining director,
and not by the stockholders. A person so elected by the Board of Directors to fill a vacancy or
newly created directorship shall hold office until the next election of the class for which such
director shall have been chosen until his or her successor shall have been duly elected and
qualified, or until such director’s earlier death, resignation or removal. No decrease in the
number of directors constituting the Board of Directors shall shorten the term of any incumbent
director.
ARTICLE VII
Section 1. The Corporation is to have perpetual existence.
Section 2. The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. In addition to the powers and authority expressly conferred
upon them by statute or by this Amended and Restated Certificate of Incorporation or the Bylaws of
the Corporation, 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.
Section 3. In furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to adopt, alter, amend or repeal the Bylaws of the
Corporation. The affirmative vote of at least a majority of the Board of Directors then in office
shall be required in order for the Board of Directors to adopt, amend, alter or repeal the
Corporation’s Bylaws. The Corporation’s Bylaws may also be adopted, amended, altered or repealed
by the stockholders of the Corporation. Notwithstanding the above or any other provision of this
Amended and Restated Certificate of Incorporation, the Bylaws of the Corporation may not be
amended, altered or repealed except in accordance with Article X of the Bylaws. No Bylaw hereafter
legally adopted, amended, altered or repealed shall invalidate any prior act of the directors or
officers of the Corporation that would have been valid if such Bylaw had not been adopted, amended,
altered or repealed.
Section 4. The election of directors need not be by written ballot unless the Bylaws of the
Corporation shall so provide.
Section 5. No stockholder will be permitted to cumulate votes at any election of directors.
ARTICLE VIII
Section 1. Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing by such stockholders.
Section 2. Special meetings of stockholders of the Corporation may be called only by the
Non-Executive Chairperson of the Board of Directors, the Chief Executive Officer, the President or
the Board of Directors acting pursuant to a resolution adopted by a majority of the Board of
Directors, and any power of stockholders to call a special meeting of stockholders is specifically
denied. Only such business shall be considered at a special meeting of stockholders as shall have
been stated in the notice for such meeting.
Section 3. Advance notice of stockholder nominations for the election of directors and of
business to be brought by stockholders before any meeting of the stockholders of the Corporation
shall be given in the manner and to the extent provided in the Bylaws of the Corporation.
ARTICLE IX
Section 1. To the fullest extent permitted by the DGCL as the same exists or as may hereafter
be amended, 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. If the DGCL 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 DGCL, as so amended.
Section 2. The Corporation may indemnify to the fullest extent permitted by law any person
made or threatened to be made a party to an action or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, she, his or her testator or
intestate is or was a director, officer, employee or agent of the Corporation or any predecessor of
the Corporation or serves or served at any other enterprise as a director, officer, employee or
agent at the request of the Corporation or any predecessor of the Corporation or serves or served
at any other enterprise as a director, officer, employee or agent at the request of the Corporation
or any predecessor to the Corporation.
Section 3. Neither any amendment nor repeal of any Section of this Article IX, nor the
adoption of any provision of this Amended and Restated Certificate of Incorporation or the Bylaws
of the Corporation inconsistent with this Article IX, shall eliminate or reduce the effect of this
Article IX in respect of any matter occurring, or any cause of action, suit, claim or proceeding
accruing or arising or that, but for this Article IX, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE X
Meetings of stockholders may be held within or outside of the State of Delaware, as the Bylaws
may provide. The books of the Corporation may be kept (subject to any provision contained in the
statutes) outside of the State of Delaware at such place or places as may be designated from time
to time by the Board of Directors or in the Bylaws of the Corporation.
ARTICLE XI
The Corporation reserves the right to amend or repeal any provision contained in this Amended
and Restated Certificate of Incorporation in the manner prescribed by the laws of the State of
Delaware and all rights conferred upon stockholders are granted subject to this reservation;
provided, however, that notwithstanding any other provision of this Amended and Restated
Certificate of Incorporation, or any provision of law that might otherwise permit a lesser vote or
no vote, the Board of Directors acting pursuant to a resolution adopted by a majority of the Board
of Directors and the affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the then
outstanding voting securities of the Corporation, voting together as a single class, shall be
required for the amendment, repeal or modification of the provisions of Section 3 of Article IV,
Section 2 of Article V, Article VI, Section 5 of Article VII, Article VIII or Article XI of this
Amended and Restated Certificate of Incorporation.
IN WITNESS WHEREOF, Energy Recovery, Inc. has caused this Amended and Restated Certificate of
Incorporation to be signed by its President and Chief Executive Officer on this day of
, 2008.
G.G. Pique, President and Chief Executive Officer