EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
APROPOS TECHNOLOGY, INC.
The original Articles of Incorporation of Apropos Technology, Inc.
were filed with the Secretary of State of Illinois on April 17, 1989. The name
of the Corporation under which it was originally incorporated was Teledata
Solutions, Inc. The original Articles of Incorporation were amended on June 13,
1997 to change the Corporation's name to Apropos Technology, Inc. This Amended
and Restated Articles of Incorporation not only restates and integrates the
original Articles of Incorporation and all amendments thereto, but also includes
amendments adopted by the shareholders of Apropos Technology, Inc. on the date
hereof. This Amended and Restated Articles of Incorporation was duly adopted in
accordance with the applicable provisions of Sections 10.20 and 7.10 of the
Illinois Business Corporation Act of 1983, as amended and shall become effective
upon filing with the Secretary of State of the State of Illinois. Each of the
Articles contained in this Amended and Restated Articles of Incorporation have
been both amended and restated.
FIRST: The name of the Corporation is Apropos Technology, Inc.
SECOND: The Corporation's registered office in the State of Illinois
is located at One Tower Lane, 28th Floor, Oakbrook Terrace, County of DuPage
60181 and ________________ is the Corporation's registered agent at such
address.
THIRD: The duration of the Corporation is perpetual.
FOURTH: The purpose for which the Corporation is organized is to carry
on and to engage in any lawful act or activity for which corporations may be
organized under the Illinois Business Corporation Act of 1983, as amended.
FIFTH: Paragraph 1: The aggregate number of shares which the
Corporation is authorized to issue is ___________ divided into two classes. The
designations of each class, the number of shares of each class and the par
value, if any, of the shares of each class, or a statement that the shares of
any class are without par value, are as follows:
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Par value per share or
Class Series (if any) No. of Shares statement that shares
are without par value
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Common None $.01
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Preferred As determined by Board $.01
of Directors
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Cumulative voting in the election of directors shall not be permitted to holders
of either the Common Shares or Preferred Shares.
Paragraph 2: The preferences, qualifications, limitations,
restrictions and the special or relative rights in respect of the shares of each
class are:
PREFERRED SHARES
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1. Authority is hereby vested in the Board of Directors (by adoption
of a resolution and filing and recording of a statement in accordance with the
laws of the State of Illinois) to divide any or all of the authorized Preferred
Shares into series and, within the limitations provided by law, to fix and
determine:
(a) The rate per annum at which the holders of shares of any
such series shall be entitled to receive dividends out of any funds of the
Corporation at that time legally available for such purpose and as declared by
the Board of Directors;
(b) The price or prices and other terms and conditions on which
shares of any such series of Preferred Shares shall be redeemable;
(c) The amount or amounts per share to which holders of shares
of any such series of Preferred Shares shall be entitled in the event of any
voluntary or involuntary dissolution, liquidation or winding up of the
Corporation;
(d) Sinking fund provisions for the redemption or purchase of
shares of any such series;
(e) The terms and conditions on which shares of any such series
may be converted into shares of another class, if the shares of any such series
are issued with the privilege of conversion; and
(f) The limitation or denial of voting rights, or the grant of
special voting rights for any such series.
2. The Board of Directors may increase the number of shares
designated for any existing series by a resolution adding to such series
authorized and unissued Preferred Shares not designated for any other series.
COMMON SHARES
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1. The holders of Common Shares shall be entitled to vote as
provided by law.
2. The holders of Common Shares are entitled to receive dividends
when and as declared by the Board of Directors, and after provision for all
dividends on the Preferred Shares as hereinabove set forth, provided no dividend
shall be declared or paid hereunder unless
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it is declared and paid at the same time and in the same manner on all
outstanding Common Shares.
3. None of the Common Shares of the Corporation shall be subject to
mandatory redemption.
PREEMPTIVE RIGHTS
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Except for the conversion of Preferred Shares as may be determined by the
Board of Directors, no holder of shares of any class of the Corporation shall
have any preemptive right to subscribe for or acquire additional shares of the
Corporation of the same or any other class, or any other securities convertible
into or evidencing or accompanied by any right to subscribe for, purchase or
acquire shares of stock of any class of the Corporation, whether such shares be
hereby or hereafter authorized; all such additional shares may be sold for such
consideration, at such time, and to such person or persons as the Board of
Directors may from time to time determine, subject to the limitations
hereinabove set forth.
STOCK SPLIT
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Notwithstanding anything in these Amended and Restated Articles of
Incorporation to the contrary, each Common Share of the Corporation issued and
outstanding immediately prior to the effective date of these Amended and
Restated Articles of Incorporation shall be automatically converted, without
further action, into _____________ Common Shares authorized herein. On such
effective date, outstanding certificates representing Common Shares shall
thereafter automatically be deemed to represent certificates for the number of
Common Shares determined as set forth in the preceding sentence; provided,
however, that the holders thereof shall be entitled to present such certificates
to the Corporation for replacement with certificates reflecting such number of
Common Shares.
SIXTH: The number of Directors shall be fixed in the manner provided by the
By-laws. The By-laws may establish a variable range for the size of the Board of
Directors by prescribing a minimum and maximum number of directors. If the Board
of Directors is to consist of six or more members, the Directors of the
Corporation shall be divided into three classes: Class I, Class II and Class
III. Each class shall consist, as nearly as may be possible, of one-third of the
whole number of the Board of Directors. If the Board of Directors is not evenly
divisible by three, the Board of Directors shall determine the number of
Directors to be elected to each class. The initial members of Class I shall be
___________________ and ____________________ and they shall hold office for a
term to expire at the annual meeting of the shareholders to be held in 2000; the
initial members of Class II shall be __________________ and
______________________ and they shall hold office for a term to expire at the
annual meeting of the shareholders to be held in 2001; and the initial members
of Class III shall be _________________ and _________________ and they shall
hold office for a term to expire at the annual meeting of the shareholders to be
held in 2002, and in the case of each class, until their respective successors
are duly elected and qualified. At each annual election held commencing with the
annual election in 2000, the Directors elected to succeed those whose terms
expire shall be identified as being of the same class as the Directors they
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succeed and shall be elected to hold office for a term to expire at the third
annual meeting of the shareholders after their election and until their
respective successors are duly elected and qualified.
SEVENTH: Special meetings of the shareholders, for any purpose or
purposes (except to the extent otherwise provided by law or these Amended and
Restated Articles of Incorporation), may only be called by the President or the
Board of Directors.
EIGHTH: In the event the Board of Directors of the Corporation shall,
by resolution adopted by a majority of the Directors then in office, recommend
to the shareholders the adoption of an amendment to these Amended and Restated
Articles of Incorporation, the shareholders of record holding a majority of the
total voting power of all then outstanding shares entitled to vote in the
election of Directors of the Corporation, voting as a single class (unless
otherwise required by law), may so amend these Articles of Incorporation.
NINTH: In furtherance and not in limitation of the powers conferred by
the laws of Illinois, the Board of Directors is expressly authorized and
empowered to make, alter, amend and repeal the By-laws of the Corporation in any
respect not inconsistent with the laws of the State of Illinois or with these
Amended and Restated Articles of Incorporation.
TENTH: The books of the Corporation may be kept at such place within
or without the State of Illinois as the By-laws of the Corporation may provide
or as may be designated from time to time by the Board of Directors of the
Corporation.
ELEVENTH: A Director of the Corporation shall not be personally liable
to the Corporation or its shareholders 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 shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 8.65 of the Illinois Business
Corporation Act, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the Director derived an improper personal benefit.
If the Illinois Business Corporation Act hereafter is amended to
authorize the further elimination or limitation of the liability of Directors,
then the liability of the Corporation's Directors shall be eliminated or limited
to the full extent authorized by the Illinois Business Corporation Act, as so
amended.
Any repeal or modification of this Article shall not adversely affect
any right or protection of a Director of the Corporation existing at the time of
such repeal or modification.
TWELFTH: As of the date of adoption of these Amended and Restated
Articles of Incorporation, _____________ Common Shares of the Corporation are
outstanding, _________ Shares of Series A convertible preferred stock are
outstanding, ___________ shares of Series B convertible preferred stock are
outstanding, _____________ shares of Series C convertible preferred stock are
outstanding and the Corporation's paid-in-capital is $_____________.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Articles of Incorporation to be signed by its duly authorized officers
this ___ day of _____________, 2000.
Attest: APROPOS TECHNOLOGY, INC.
By:
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Secretary Its:
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