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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
ILLINOIS SUPERCONDUCTOR CORPORATION OF DELAWARE
THE UNDERSIGNED, a natural person, in order to form a corporation under
the General Corporation Law of the State of Delaware (as amended from time to
time, the "Law"), hereby certifies that:
ARTICLE 1. NAME
The name of the Corporation is ILLINOIS SUPERCONDUCTOR CORPORATION OF
DELAWARE (the "Corporation").
ARTICLE 2. REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is Suite L-100, 32 Loockerman Square, in the City of Dover, 19901,
County of Kent. The name of the Corporation's registered agent at such address
is The Prentice-Hall Corporation System, Inc.
ARTICLE 3. PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE 4. AUTHORIZED STOCK
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Nineteen Million Nine Hundred
Sixty-Six Thousand (19,966,000), of which Fifteen Million (15,000,000) shares
are of a class designated "Common Stock" (referred to in this Certificate as
"Common"), and Four Million Nine Hundred Sixty-Six Thousand shares are of a
class designated "Preferred Stock" (referred to in this Certificate as
"Preferred"). The total number of shares of all classes of stock which the
Corporation shall have authority to issue, and the number of shares of
Preferred, may be reduced from time to time in accordance with Section of this
Certificate. The Common shall have a par value of $.001 per share. The Preferred
shall have a par value of $.001 per share.
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ARTICLE 5. POWERS AND QUALIFICATIONS OF COMMON STOCK
The powers, preferences and rights, and the qualifications,
limitations, and restrictions thereof, of the Common are as follows:
5.1. VOTING RIGHTS. Except as otherwise required by law or
provided in this Certificate, each share of Common shall entitle the holder
thereof to one vote on each matter submitted to a vote of the stockholders of
the Corporation.
5.2. DIVIDEND RIGHTS. Except as otherwise provided by law or
this Certificate, the holders of Common shall be entitled to receive dividends
at such times and in such amounts as may be determined by the Board of Directors
of the Corporation.
5.3. LIQUIDATION RIGHTS. In the event of any dissolution,
liquidation or winding up of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities of the
Corporation and the preferential amounts to which the holders of any outstanding
shares of Preferred shall be entitled upon dissolution, liquidation, or winding
up, the holders of Common shall be entitled to share ratably in the remaining
assets of the Corporation.
ARTICLE 6. POWERS AND QUALIFICATIONS OF PREFERRED STOCK
6.1 POWERS AND QUALIFICATIONS IN GENERAL. The Preferred shall
be divided into one or more series. One series shall consist of One Million Five
Hundred Thousand shares and is designated "Series A Convertible Preferred Stock"
(referred to in this Certificate as "Series A Preferred"). A second series shall
consist of One Million Three Hundred Sixty-Six Thousand shares and is designated
"Series B Convertible Preferred Stock" (referred to in this Certificate as
"Series B Preferred"). A third series shall consist of Two Million shares and is
designated "Series C Convertible Preferred Stock" (referred to in this
Certificate as "Series C Preferred"). The Board of Directors of the Corporation
is expressly authorized to provide from time to time for the issue of all or any
of the shares of Preferred remaining undesignated in one or more series, and to
fix the number of shares and to determine or alter for each such series, such
voting powers, full or limited, or no voting powers, 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
of the Corporation providing for the issue of such shares and as may be
permitted by the Law.
6.2 POWERS AND QUALIFICATIONS OF SERIES A PREFERRED, SERIES B
PREFERRED AND SERIES C PREFERRED. The powers, preferences and rights, and the
qualifications, limitations, and restrictions thereof, of the Series A Preferred
and Series B Preferred and Series C Preferred (referred to collectively and
individually as the "Old Preferred") are as set forth in this Section.
(a) VOTING RIGHTS. Except as otherwise required by law, each share of
Old Preferred shall entitle the holder thereof to vote on each matter submitted
to a vote of the shareholders of the Corporation and to have the number of votes
equal to the number (including any fraction)
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of shares of Common into which such share of Old Preferred is then convertible
pursuant to the provisions hereof at the record date for the determination of
shareholders entitled to vote on such matters or, if no such record date is
established, at the date such vote is taken or any written consent of
shareholders becomes effective. Except as otherwise required by law, the holders
of shares of Common and Old Preferred shall vote together and not as separate
classes, and the holders of Series A Preferred, Series B Preferred and Series C
Preferred shall vote together as a single class of Preferred and not as separate
series.
(b) DIVIDENDS. The holders of the Old Preferred shall be entitled to
receive, as, when and if declared by the Board, but only out of funds legally
available therefor, cash dividends in such amounts as the Board may determine.
No dividends shall be declared or paid on the shares of any series of Old
Preferred for any dividend period unless at the same time such dividend shall be
declared or paid on all shares of Old Preferred equally.
In addition, in the event any dividend or other distribution payable in
cash or other property (other than securities of the Corporation the issuance of
which gives rise to adjustment of the Conversion Price pursuant to Section of
this Article) is declared on the Common, each holder of shares of Old Preferred
on the record date for such dividend or distribution shall be entitled to
receive on the date of payment or distribution of such dividend or other
distribution the same cash or other property which such holder would have
received on such record date if such holder was the holder of record of the
number (including any fraction) of shares of Common into which the shares of Old
Preferred then held by such holder are then convertible.
(c) LIQUIDATION RIGHTS. If the Corporation shall be voluntarily or
involuntarily liquidated, dissolved or wound up, the holder of each then
outstanding share of Series A Preferred, Series B Preferred or Series C
Preferred shall be entitled to receive out of the assets of the Corporation
available for distribution to shareholders, and before any payment or
declaration and setting apart for payment of any amount with respect of the
Common or any other equity security, the amount of $1.00, $1.25 or $1.50 per
share (such amounts to be adjusted proportionally in the event the shares of
Preferred, or any series thereof, are subdivided into a greater number or
combined into a lesser number), respectively, plus any and all accrued or
declared but unpaid dividends declared on such share. The Series A Preferred,
Series B Preferred and Series C Preferred shall rank on a parity as to the
receipt of the respective preferential amounts for each such series upon the
occurrence of such event. If the Corporation shall have insufficient assets and
funds to pay such preferential amounts in full to the holders of the Series A
Preferred, Series B Preferred and Series C Preferred, then all assets and funds
of the Corporation legally available for distribution shall be distributed
ratably among the holders of the Series A Preferred, Series B Preferred and
Series C Preferred in proportion to the preferential amount each such holder is
otherwise entitled to receive.
Whenever the distribution provided in this Section shall be payable in
securities or property other than cash, the value of such distribution shall be
the fair market value of such securities or other property as determined in good
faith by the Board.
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(d) CONVERSION.
(i) TERMS OF CONVERSION.
(A) OPTIONAL CONVERSION FOR SERIES A PREFERRED. The holder of
each share of Series A Preferred shall have the right (the "Series A Conversion
Right"), at such holder's option, to convert such share at any time, without
cost and otherwise on the terms of this Section, into the number of fully paid
and non-assessable shares of Common that results from dividing:
(1) $1.00 (such amount to be adjusted proportionately in
the event the shares of Series A Preferred are subdivided into a
greater number or combined into a lesser number),
by:
(2) the Series A Conversion Price (as defined below) per
share in effect at the time of conversion.
The "Series A Conversion Price" per share shall initially be $1.00, subject to
adjustment from time to time as provided in this Section.
(B) OPTIONAL CONVERSION FOR SERIES B PREFERRED. The holder of
each share of Series B Preferred shall have the right (the "Series B Conversion
Right"), at such holder's option, to convert such share at any time, without
cost and otherwise on the terms of this Section, into the number of fully paid
and non-assessable shares of Common that results from dividing:
(1) $1.25 (such amount to be adjusted proportionately in
the event the shares of Series B Preferred are subdivided into a
greater number or combined into a lesser number),
by:
(2) the Series B Conversion Price (as defined below) per
share in effect at the time of conversion.
The "Series B Conversion Price" per share shall initially be $1.25, subject to
adjustment from time to time as provided in this Section.
(C) OPTIONAL CONVERSION FOR SERIES C PREFERRED. The holder of
each share of Series C Preferred shall have the right (the "Series C Conversion
Right"), at such holder's option, to convert such share at any time after the
first anniversary (referred to below as the "First Anniversary") of the date on
which the Corporation first sells and issues any share of Series C Preferred,
without cost and otherwise on the terms of this Section, into the number of
fully paid and non-assessable shares of Common that results from dividing:
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(1) $1.50 (such amount to be adjusted proportionately in
the event the shares of Series C Preferred are subdivided into a
greater number or combined into a lesser number),
by:
(2) the Series C Conversion Price (as defined below) per
share in effect at the time of conversion.
The "Series C Conversion Price" per share shall initially be $1.50, subject to
adjustment from time to time as provided in this Section. The "Series A
Conversion Right," the "Series B Conversion Right" and the "Series C Conversion
Right" are sometimes collectively referred to below as the "Conversion Right".
The "Series A Conversion Price," the "Series B Conversion Price" and the "Series
C Conversion Price" are sometimes collectively referred to below as the
"Conversion Price".
(D) MANDATORY CONVERSION FOR SERIES A PREFERRED AND SERIES B
PREFERRED. Upon the consummation of the issuance and sale of Common in the
Corporation's Qualified Initial Public Offering (as hereinafter defined), each
share of Series A Preferred and Series B Preferred shall be automatically
converted, without cost and on the terms of this Section, into the number of
shares of Common into which such share of Series A Preferred or Series B
Preferred would respectively be convertible under Section and Section above
immediately prior to such Qualified Initial Public Offering.
(E) MANDATORY CONVERSION FOR SERIES C PREFERRED. Each share of
Series C Preferred shall be automatically converted, without cost and on the
terms of this Section as follows:
(1) upon the consummation of the issuance and sale of Common
in the Corporation's Qualified Initial Public Offering on or prior to
the First Anniversary, into the number of shares of Common that results
from dividing:
(y) $1.50 (such amount to be adjusted proportionately in
the event the shares of Series C Preferred are subdivided into a
greater number or combined into a lesser number),
by:
(z) a fraction, the numerator of which is the Series C
Conversion Price then applicable, and the denominator of which
is the price per share at which the Corporation issues and sells
Common in the Qualified Initial Public Offering; or
(2) upon the consummation of the issuance and sale of Common
in the Corporation's Qualified Initial Public Offering after the First
Anniversary, into the number of shares of Common into which such share
of Series C Preferred would be convertible under Section above
immediately prior to such Qualified Initial Public Offering.
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(ii) MECHANICS OF CONVERSION.
(A) OPTIONAL CONVERSION. A holder of any share of Old
Preferred may exercise the Conversion Right of such share by surrendering the
certificate therefor, duly endorsed, at the office of the Corporation or of any
transfer agent for the Old Preferred, together with a written notice to the
Corporation which shall state:
(1) that such holder elects to convert the same, and
(2) the number of shares of Old Preferred being converted.
Thereupon the Corporation shall promptly issue and deliver to the holder of such
shares a certificate or certificates for the number of shares of Common to which
such holder shall be entitled. If the certificate evidencing the Old Preferred
being converted shall also evidence shares of Old Preferred not being converted,
then the Corporation shall also deliver to the holder of such certificate a new
stock certificate evidencing the Old Preferred not converted.
The conversion of any shares of Old Preferred shall be deemed to have
been made immediately prior to the close of business on the date that the shares
of Old Preferred to be converted are surrendered to the Corporation, and the
person or persons entitled to receive the shares of Common issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common on such date. Any dividends or distributions declared but
unpaid at the time of conversion with respect to the Old Preferred so converted
shall be paid to the holder of such Common.
(B) MANDATORY CONVERSION. The Corporation shall give written
notice to each holder of a share of Old Preferred not more than forty (40) nor
less than twenty (20) days before the anticipated effective date of the
registration statement with respect to any Qualified Initial Public Offering,
and shall also give written notice to each such holder upon the consummation of
the issuance and sale of Common in the Corporation's Qualified Initial Public
Offering. Following the conversion of such shares, each holder of shares so
converted may surrender the certificate therefor at the office of the
Corporation or any transfer agent for the Old Preferred. Upon such surrender,
the Corporation shall issue and deliver to each holder a certificate or
certificates for the number of shares of Common to which such holder is
entitled.
The conversion of shares of Old Preferred shall take place upon the
consummation of the issuance and sale of Common in the Corporation's Qualified
Initial Public Offering, whether or not the certificates representing such
shares of Old Preferred shall have been surrendered or new certificates
representing the shares of Common into which such shares have been converted
shall have been issued.
(iii) ADJUSTMENT OF CONVERSION PRICE. The Conversion Price for each
share of Old Preferred and the kind of securities issuable upon the conversion
of each share of Old Preferred shall be adjusted from time to time as follows:
(A) SUBDIVISION OR COMBINATION OF SHARES. If the Corporation
at any time effects a subdivision or combination of the outstanding Common, each
Conversion Price shall
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be decreased, in the case of a subdivision, or increased, in the case of a
combination, in the same proportions as the Common is subdivided or combined, in
each case effective automatically upon, and simultaneously with, the
effectiveness of the subdivision or combination which gives rise to the
adjustment.
(B) STOCK DIVIDENDS. If the Corporation at any time pays a
dividend, or makes any other distribution, to holders of Common payable in
shares of Common, or fixes a record date for the determination of holders of
Common entitled to receive a dividend or other distribution payable in shares of
Common, the Conversion Price shall be decreased by multiplying it by a fraction:
(1) the numerator of which shall be the total number of shares
of Common outstanding immediately prior to such dividend or
distribution, and
(2) the denominator of which shall be the total number of
shares of Common outstanding immediately after such dividend or
distribution (plus, if the Corporation paid cash instead of fractional
shares otherwise issuable in such dividend or distribution, the number
of additional shares which would have been outstanding had the
Corporation issued fractional shares instead of cash),
in each case effective automatically as of the date the Corporation shall take a
record of the holders of its Common for the purpose of receiving such dividend
or distribution (or if no such record is taken, as of the effectiveness of such
dividend or distribution).
(C) RECLASSIFICATION, CONSOLIDATION OR MERGER. If at any time,
as a result of:
(1) a capital reorganization or reclassification (other than a
subdivision, combination or dividend which gives rise to an adjustment
of each Conversion Price pursuant to clauses (i) or (ii) of this
Section), or
(2) a merger or consolidation of the Corporation with another
corporation (whether or not the Corporation is the surviving
corporation),
the Common issuable upon the conversion of the Old Preferred shall be changed
into or exchanged for the same or a different number of shares of any class or
classes of stock of the Corporation or any other corporation, or other
securities convertible into such shares, then, as a part of such reorganization,
reclassification, merger or consolidation, appropriate adjustments shall be made
in the terms of the Old Preferred (or of any securities into which the Old
Preferred is changed or for which the Old Preferred is exchanged), so that:
(y) the holders of Old Preferred or of such substitute
securities shall thereafter be entitled to receive, upon conversion of
the Old Preferred or of such substitute securities, the kind and amount
of shares of stock, other securities, money and property which such
holders would have received at the time of such capital reorganization,
reclassification, merger, or consolidation, if such holders had
converted their Old Preferred immediately prior to such capital
reorganization, reclassification, merger, or consolidation, and
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(z) the Old Preferred or such substitute securities shall
thereafter be adjusted on terms as nearly equivalent as may be
practicable to the adjustments theretofore provided in this Section.
No consolidation or merger in which the Corporation is not the surviving
corporation shall be consummated unless the surviving corporation shall agree,
in writing, to the provisions of this Section. The provisions of this Section
shall similarly apply to successive capital reorganizations, reclassifications,
mergers, and consolidations.
(D) OTHER ACTION AFFECTING COMMON. If at any time the
Corporation takes any action affecting its Common, other than an action
described in any of Sections through which, in the opinion of the Board, would
have an adverse effect upon the Conversion Rights of the Old Preferred, the
Conversion Price or the kind of Securities issuable upon the conversion of Old
Preferred, or both, shall be adjusted in such manner and at such time as the
Board may in good faith determine to be equitable in the circumstances.
(E) NOTICE OF ADJUSTMENT EVENTS. Whenever the Corporation
contemplates the occurrence of an event which would give rise to adjustments
under Sections through above, the Corporation shall mail to each holder of Old
Preferred, at least 30 days prior to the record date with respect to such event
or, if no record date shall be established, at least 30 days prior to such
event, a notice specifying (A) the nature of the contemplated event, and (B) the
date on which any such record is to be taken for the purpose of such event, and
(C) the date on which such event is expected to become effective, and (D) the
time, if any is to be fixed, when the holders of record of Common (or other
securities) shall be entitled to exchange their shares of Common (or other
securities) for securities or other property deliverable in connection with such
event.
(F) NOTICE OF ADJUSTMENTS. Whenever the Conversion Price or
the kind of securities issuable upon the conversion of any or all of the Series
A Preferred, the Series B Preferred or the Series C Preferred shall be adjusted
pursuant to Sections through above, the Corporation shall make a certificate
signed by its President or a Vice President and by its Chief Financial Officer,
Secretary or Assistant Secretary, setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which such
adjustment was calculated (including a description of the basis on which the
Board made any determination hereunder), and the Conversion Price and the kind
of securities issuable upon the conversion of any or all of the Series A, Series
B Preferred or Series C Preferred after giving effect to such adjustment, and
shall cause copies of such certificate to be mailed (by first class mail postage
prepaid) to each holder of Old Preferred promptly after each adjustment.
(iv) RESERVATION OF SHARES. The Corporation will take such corporate
action as may be necessary from time to time so that at all times it will have
authorized, and reserved out of its authorized but unissued Common for the sole
purpose of issuance upon conversion of shares of Old Preferred, a sufficient
number of shares of Common to permit the conversion in full of all outstanding
shares of Old Preferred.
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(v) FULL CONSIDERATION. All shares of Common which shall be issued upon
the conversion of any Old Preferred (which is itself fully paid and
non-assessable) will, upon issuance, be fully paid and non-assessable. The
Corporation will pay such amounts and will take such other action as may be
necessary from time to time so that all shares of Common which shall be issued
upon the conversion of any Old Preferred will, upon issuance and without cost to
the recipient, be free from all preemptive rights, taxes, liens and charges with
respect to the issue thereof.
(e) QUALIFIED INITIAL PUBLIC OFFERING. For the purposes of this
Article, "Qualified Initial Public Offering" shall mean the first public
offering and sale of at least $5,000,000 of Common of the Corporation, at a
price of not less than $5.00 per share (as equitably adjusted for stock splits,
stock dividends, combinations, or other reclassifications of shares), pursuant
to an effective registration statement under the Securities Act of 1933, as
amended from time to time.
(f) CANCELLATION UPON CONVERSION. Upon the conversion of any shares of
Old Preferred, the Corporation shall not reissue such shares of Old Preferred,
and the number of shares of the series of Preferred to which the converted
shares belong authorized by Article shall be automatically reduced by the number
of shares of such series of Old Preferred so converted. Upon the conversion of
all then-outstanding shares of any series of Old Preferred, the series of Old
Preferred shall no longer be deemed designated, and all reference to such series
in this Certificate shall be deemed eliminated.
ARTICLE 7. BOARD OF DIRECTORS.
7.1 NUMBER OF DIRECTORS. The number of directors composing the
Board of Directors of the Corporation shall be not less than four nor more than
nine. The exact number shall be determined from time to time by resolution
adopted by the affirmative vote of a majority of the directors in office at the
time of adoption of such resolution.
7.2 ELECTION OF DIRECTORS. Elections of directors need not be
by written ballot unless the by-laws of the Corporation so provide.
7.3 CLASSIFICATION OF DIRECTORS. Except as otherwise provided
in this Certificate, the directors of the Corporation shall be divided into
three classes. The term of office of the directors of Class I shall expire at
the annual meeting of the stockholders of the Corporation in 1994. The term of
office of the directors of Class II shall expire at the annual meeting of the
stockholders of the Corporation in 1995. The term of office of the directors of
the Class III shall expire at the annual meeting of the stockholders of the
Corporation in 1996. At each annual election of directors, directors shall be
chosen for a full three-year term to succeed those whose terms expire. Directors
elected from time to time other than as successors to directors whose terms have
expired, or to fill the remaining term of a director previously elected, shall
be assigned by the Board of Directors of the Corporation to the first, second or
third class so as to maintain, so far as is possible, equal numbers of directors
in each class. This Section shall not limit the power of the Corporation,
through this Certificate, to confer upon holders of any class or series of stock
the right to elect one or more directors who shall
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serve for such term, and have such voting powers, as shall be stated in this
Certificate, and the directors so elected shall not be divided into classes
pursuant to this Section.
7.4 VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Except as
required by law or this Certificate, all vacancies on the Board and
newly-created directorships resulting from any increase in the authorized number
of directors elected by all of the stockholders having the right to vote as a
single class may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, or by the vote of
the holders of a majority of the outstanding shares of stock entitled to vote on
the election of directors.
7.5 INITIAL DIRECTORS. Until changed by resolution of the
directors in accordance with Section of this Certificate, the number of
directors shall be four. The names and mailing addresses of the persons who are
to serve as directors until the first annual meeting of the stockholders of the
Corporation or until their successors are elected and qualified are as follows,
each of whom shall serve in the class of directors set forth beneath his or her
name:
Name and Class Mailing Address
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Ora E. Smith 1840 Oak Avenue
Class I 3rd Floor
Evanston, Illinois 60201
Craig M. Siegler 135 South LaSalle Street
Class II 42nd Floor
Chicago, Illinois 60637
Leonard A. Batterson 303 West Madison Street
Class III Suite 1110
Chicago, Illinois 60606
Steven Lazarus 20 North Wacker Drive
Class III Suite 1849
Chicago, Illinois 60606
ARTICLE 8. LIABILITY OF DIRECTORS
No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that to the extent required by the Law
this provision shall not eliminate or limit the liability of a director (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 Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
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ARTICLE 9. INDEMNIFICATION OF DIRECTORS AND OTHER PERSONS
The Corporation shall indemnify, in accordance with and to the
full extent now or hereafter permitted by law, any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he or she is or was a director of the Corporation (and
the Corporation, in the discretion of the Board, may so indemnify a person by
reason of the fact that he or she is or was an officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise) against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding;
provided, however, that, the Corporation shall not be obligated to indemnify any
such person (i) with respect to proceedings, claims or actions initiated or
brought voluntarily by such person and not by way of defense, or (ii) for any
amounts paid in settlement of an action effected without the prior written
consent of the Corporation to such settlement. Such indemnification is not
exclusive of any other right to indemnification provided by law, agreement or
otherwise.
ARTICLE 10. PROSPECTIVE AMENDMENTS
No amendment to or repeal of Article or Article of this
Certificate shall apply to or have any effect on the rights of any individual
referred to in Article or Article for or with respect to acts or omissions of
such individual occurring prior to such amendment or repeal.
ARTICLE 11. STOCKHOLDER ACTIONS
At any time after the first sale to the public of any of the
Corporation's securities pursuant to an effective registration statement under
the Securities Act of 1933, as amended, any action required or permitted to be
taken by the holders of the Common (whether voting separately as a class or
together with other classes) must be taken at a duly convened annual or special
meeting of such stockholders, and may not be taken without a meeting by a
consent in writing by such holders.
ARTICLE 12. BUSINESS COMBINATIONS
The Corporation hereby expressly elects not to be governed by
Section 203 of the Law.
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ARTICLE 13. BY-LAWS
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the By-Laws of the Corporation.
ARTICLE 14. INCORPORATOR
The name and mailing address of the Sole Incorporator are as
follows:
Thomas M. Fitzpatrick
20 North Wacker Drive, Suite 1849
Chicago, Illinois 60606
IN WITNESS WHEREOF, I have hereunto set my hand this August
19, 1993.
/s/ Thomas M. Fitzpatrick
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Thomas M. Fitzpatrick, Sole Incorporator
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PLAN AND AGREEMENT OF MERGER
OF
ILLINOIS SUPERCONDUCTOR CORPORATION
AN ILLINOIS CORPORATION
WITH AND INTO
ILLINOIS SUPERCONDUCTOR CORPORATION OF DELAWARE
A DELAWARE CORPORATION
SECTION 15. AGREEMENT TO MERGE. Illinois Superconductor
Corporation, an Illinois corporation ("ISC-Illinois"), shall be merged into
Illinois Superconductor Corporation of Delaware, a Delaware corporation
("ISC-Delaware"), in accordance with applicable provisions of the laws of
Illinois and Delaware. ISC-Delaware shall be the surviving corporation.
SECTION 16. TERMS AND CONDITIONS.
16.1 The terms and conditions of the merger and the mode of
carrying the same into effect are as follows.
16.2 ISC-Illinois and ISC-Delaware shall become a single
corporation which shall be ISC-Delaware, the surviving corporation. The separate
existence of ISC-Illinois shall cease but the existence of ISC-Delaware shall
continue.
16.3 ISC-Delaware shall possess all the rights, privileges,
immunities, and franchises, of a public as well as of a private nature, of
ISC-Delaware and of ISC-Illinois. All property, real, personal and mixed, and
all debts due on whatever account, including subscriptions to shares, and all
other choses in action, and all and every other interest, of or belonging to or
due to ISC-Illinois shall be taken and deemed to be transferred to and vested in
ISC-Delaware without further act. The title to any real estate, or any interest
therein, vested in ISC-Illinois shall be taken and deemed to be transferred to
ISC-Delaware and shall not revert or be in any way impaired by reason of the
merger.
16.4 ISC-Delaware shall be responsible and liable for all the
liabilities and obligations of ISC- Illinois.
16.5 The aggregate amount of the net assets of ISC-Delaware
and ISC-Illinois available for the payment of dividends or the purchase of
treasury shares immediately prior to the merger, to the extent that the value
thereof is not transferred to paid-in capital by the issuance of shares of
ISC-Delaware or otherwise, shall continue to be available for the payment of
dividends or the purchase of treasury shares by ISC-Delaware.
14
SECTION 17. CONVERSION OF SHARES.
17.1 The manner and basis of converting the shares of
ISC-Delaware and ISC-Illinois into shares or other securities or obligations of
ISC-Delaware are as follows.
17.2 The number of shares which ISC-Illinois has authority to
issue is:
(a) 10,208,036 shares of Common Stock of which 483,868 shares
are issued; and
(b) 4,866,000 shares of Preferred Stock, of which 1,500,000
are designated Series A Convertible Preferred Stock, 1,366,000 are
designated Series B Convertible Preferred Stock, and 2,000,000 are
designated Series C Convertible Preferred Stock.
Of the shares designated Series A Convertible Preferred Stock, 1,500,000 shares
are issued. Of the shares designated Series B Convertible Preferred Stock,
1,366,000 shares are issued. Of the shares designated Series C Convertible
Preferred Stock, 1,446,667 shares are issued.
17.3 The number of shares which ISC-Delaware has authority to
issue is:
(a) 15,000,000 shares of Common Stock, none of which is
issued; and
(b) 4,966,000 shares of Preferred Stock, of which 1,500,000
are designated Series A Convertible Preferred Stock, 1,366,000 are
designated Series B Convertible Preferred Stock, and 2,000,000 are
designated Series C Convertible Preferred Stock.
None of the shares of Preferred Stock of any series is issued.
17.4 Upon the issuance of a Certificate of Merger:
(a) Each share of Common Stock of ISC-Illinois which is issued
and outstanding on the effective date of the merger shall be
converted, by and upon the merger and without any action on the part
of the holder of such share, into one share of fully paid and
non-assessable Common Stock of ISC-Delaware.
(b) Each share of Series A Convertible Preferred Stock of
ISC-Illinois which is issued and outstanding on the effective date of
the merger shall be converted, by and upon the merger and without any
action on the part of the holder of such share, into one share of
fully paid and non-assessable Series A Convertible Preferred Stock of
ISC-Delaware.
(c) Each share of Series B Convertible Preferred Stock of
ISC-Illinois which is issued and outstanding on the effective date of
the merger shall be converted, by and upon the merger and without any
action on the part of the holder of such share, into one share of fully
paid and non-assessable Series B Convertible Preferred Stock of
ISC-Delaware.
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15
(d) Each share of Series C Convertible Preferred Stock of
ISC-Illinois which is issued and outstanding on the effective date of
the merger shall be converted, by and upon the merger and without any
action on the part of the holder of such share, into one share of fully
paid and non-assessable Series C Convertible Preferred Stock of
ISC-Delaware.
(e) The paid-in capital of ISC-Illinois shall be transferred
to the paid-in capital of ISC-Delaware.
(f) Certificates for the shares of Common Stock, Series A
Convertible Preferred Stock and Series B Convertible Preferred Stock of
ISC-Delaware shall be issued to the holders of all of the outstanding
Common Stock, Series A Convertible Preferred Stock and Series B
Convertible Preferred Stock, respectively, as of the merger date, in
place and upon the surrender of previously issued stock certificates,
on the aforesaid basis. Stock certificates of ISC-Illinois shall be
surrendered to ISC-Delaware at its office located at 1840 Oak Avenue,
Third Floor, Evanston, Illinois 60201. However, upon the merger
becoming effective, the holders of the shares of ISC-Illinois
outstanding immediately prior to the merger shall thereupon cease to be
holders of said shares and shall be and become holders of shares of
ISC-Delaware upon the basis hereinabove specified, whether or not stock
certificates representing the previously outstanding shares of
ISC-Illinois are surrendered or stock certificates representing shares
of ISC-Delaware are issued and delivered.
SECTION 18. CERTIFICATE OF INCORPORATION.
18.1 The Certificate of Incorporation of the surviving
corporation shall be amended by the merger by the deletion of Article 1 in its
entirety and the insertion in lieu thereof of the following Article 1:
"ARTICLE 1. NAME
The name of the Corporation is ILLINOIS SUPERCONDUCTOR
CORPORATION (the "Corporation")."
18.2 As of the effective time of the merger, the Certificate
of Incorporation of ISC-Delaware, amended in accordance with Section above, and
the By-Laws of ISC-Delaware shall be the Certificate of Incorporation and the
By-Laws of the surviving corporation.
SECTION 19. ADOPTION. This Plan and Agreement of Merger has
been approved, adopted, certified, executed and acknowledged by ISC-Illinois and
ISC-Delaware in accordance with the laws under which each is, respectively,
organized.
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ILLINOIS SUPERCONDUCTOR CORPORATION Dated September 23, 1993
By /s/ Ora E. Smith Attested by /s/ Stephen G. Wasko
------------------------------ ---------------------
Ora E. Smith, Stephen G. Wasko,
President Secretary
ILLINOIS SUPERCONDUCTOR CORPORATION Dated September 23, 1993
OF DELAWARE
By /s/ Ora E. Smith Attested by /s/ Stephen G. Wasko
------------------------------ ---------------------
Ora E. Smith, Stephen G. Wasko,
President Secretary
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17
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ILLINOIS SUPERCONDUCTOR CORPORATION
ILLINOIS SUPERCONDUCTOR CORPORATION (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware (as amended from time to time, the "Law"), does hereby
certify:
I. That, by a written consent executed in accordance with Section
141(f) of the Law and effective September 27, 1993, the Board of Directors of
the Corporation adopted a resolution setting forth the Amendment to Certificate
of Incorporation set forth below (the "Amendment"), declaring its advisability,
and submitting it to the stockholders entitled to vote in respect thereof.
"RESOLVED, that Article 4 of the certificate of incorporation of the
Corporation is hereby amended in its entirety to read as follows:
"ARTICLE 4. AUTHORIZED STOCK
"4.1. NUMBER, CLASSIFICATION AND PAR VALUE. The total
number of shares of all classes of stock which the Corporation shall
have authority to issue is Nineteen Million Nine Hundred Sixty-Six
Thousand (19,966,000), of which Fifteen Million (15,000,000) shares are
of a class designated "Common Stock" (referred to in this Certificate
as "Common"), and Four Million Nine Hundred Sixty-Six Thousand shares
are of a class designated "Preferred Stock" (referred to in this
Certificate as "Preferred"). The total number of shares of all classes
of stock which the Corporation shall have authority to issue, and the
number of shares of Preferred, may be reduced from time to time in
accordance with Section of this Certificate. The Common shall have a
par value of $.001 per share. The Preferred shall have a par value of
$.001 per share.
"4.2. COMBINATION OF COMMON STOCK. At the time the
filing of the Certificate of Amendment of Certificate of Incorporation
containing these Sections 4.2 and 4.3 with the Secretary of State of
the State of Delaware becomes effective, a reverse stock split will
take effect whereby each outstanding whole share of the Corporation's
Common shall automatically and without the necessity of any other
action become 0.545th of one share of the Corporation's Common and
correspondingly each fraction of a share of Common shall automatically
and without the necessity of any other action be reduced by the same
proportion. Upon the occurrence of the combination of the Common
effected by this Section 4.2, each certificate for outstanding shares
of Common dated prior to the effective date of the combination of the
Common effected by this Section 4.2 shall evidence, and be deemed to
evidence, the number of shares of Common
18
into which the shares previously evidenced by such certificate shall
have been combined in accordance with this Section 4.2, and the
combination of the Common effected by this Section 4.2 shall become
effective in accordance with the terms hereof, whether or not any or
all of the certificates evidencing Common shall have been surrendered
or new certificates evidencing the number of shares of Common into
which such shares have been combined shall have been issued in
accordance with Section 4.3 hereof.
"4.3. SUBSEQUENT REISSUANCE OF CERTIFICATES.
Following the occurrence of the combination of the Common effected by
Section 4.2, the holders of shares of Common shall either a) surrender
each certificate evidencing any such shares at the office of the
Corporation, or b) notify the Corporation that such certificate has
been lost, stolen or destroyed and execute an agreement satisfactory to
the Corporation to indemnify the Corporation from any loss incurred by
it in connection with the reissuance of such lost, stolen or destroyed
certificate. The Corporation shall thereupon issue and deliver to each
such holder a certificate or certificates, in the name shown on such
certificate evidencing Common, for the number of shares of Common into
which the shares of Common evidenced by the surrendered (or lost,
stolen or destroyed) certificate have been combined, dated as of the
date on which the combination of the Common effected by Section 4.2
becomes effective. The Corporation shall not be obligated to issue any
certificate evidencing shares of Common in connection with the
combination effected by this Amendment except in accordance with this
Section 4.3."
II. That, by a written consent executed in accordance with Section 228
of the Law, the holders of a majority of the outstanding stock entitled to vote
thereon, and a majority of the outstanding stock of each class entitled to vote
thereon as a class, have voted in favor of the adoption of the Amendment, and
written notice of such action has been given as provided in Section 228(d) of
the Law.
III. That the Amendment has been duly adopted in accordance with
Section 242 of the Law.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Amendment to Certificate of Incorporation to be signed by its
President and attested by its Secretary, all on September 27, 1993.
ILLINOIS SUPERCONDUCTOR CORPORATION
By: /s/ Ora E. Smith
---------------------------------
Attest: Ora E. Smith, President
/s/ Stephen G. Wasko
- ------------------------------
Stephen G. Wasko, Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ILLINOIS SUPERCONDUCTOR CORPORATION
ILLINOIS SUPERCONDUCTOR CORPORATION (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware (as amended from time to time, the "Law"), does hereby
certify:
I. That, at a meeting held in accordance with Section 141(b) of the Law
and effective March 9, 1998, the Board of Directors of the Corporation adopted a
resolution setting forth the Amendment to Certificate of Incorporation set forth
below (the "Amendment"), declaring its advisability, and submitting it to the
stockholders entitled to vote in respect thereof.
"RESOLVED, that Article 4, Section 4.1 of the certificate of
incorporation of the Corporation is hereby amended in its entirety to
read as follows:
"ARTICLE 4. AUTHORIZED STOCK
"4.1. NUMBER, CLASSIFICATION AND PAR VALUE. The total
number of shares of all classes of stock which the Corporation shall
have authority to issue is Thirty Million One Hundred Thousand
(30,100,000), of which Thirty Million (30,000,000) shares are of a
class designated "Common Stock" (referred to in this Certificate as
"Common"), and One Hundred Thousand (100,000) shares are of a class
designated "Preferred Stock" (referred to in this Certificate as
"Preferred"). The total number of shares of all classes of stock which
the Corporation shall have authority to issue, and the number of shares
of Preferred, may be reduced from time to time in accordance with
Section of this Certificate. The Common shall have a par value of $.001
per share. The Preferred shall have a par value of $.001 per share."
II. That, at a special meeting of the stockholders called in accordance
with Section 222 of the Law, the holders of a majority of the outstanding stock
entitled to vote thereon, and a majority of the outstanding stock of each class
entitled to vote thereon as a class, have voted in favor of the adoption of the
Amendment, and written notice of the meeting has been given as provided in
Section 222(b) of the Law.
III. That the Amendment has been duly adopted in accordance with
Section 242 of the Law.
20
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Amendment to Certificate of Incorporation to be signed by its
President and attested by its Secretary, all on April 22, 1998.
ILLINOIS SUPERCONDUCTOR CORPORATION
By: /s/ Edward W. Laves
---------------------------------
Attest: Edward W. Laves, President
/s/ Stephen G. Wasko
- ----------------------------
Stephen G. Wasko, Secretary
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