**Exhibit 3.1**

 

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF CONDUCTUS, INC.

a Delaware Corporation

 

(Pursuant to sections 242and 245 of the

Delaware GeneralCorporation Law)

 

Conductus, Inc. (the “Corporation”), a corporationorganized and existing under the General Corporation Law of the State ofDelaware (the “General Corporation Law”) does hereby certify that:

 

FIRST:  Thename of the Corporation is Conductus, Inc. and that the Corporation wasoriginally incorporated on September 1, 1987 pursuant to the GeneralCorporation Law; and

 

SECOND:  Thefollowing resolutions amending and restating the Corporation’s RestatedCertificate of Incorporation, as amended, were approved by the Board ofDirectors of the Corporation by unanimous written consent effective as of May30, 2002, and were duly adopted by the stockholders of the Corporation inaccordance with the provisions of Sections 242 and 245 of the GeneralCorporation Law at a meeting of the stockholders held in accordance withSection 228 of the General Corporation Law:

 

“Now, therefore, be it resolved that the RestatedCertificate of Incorporation of the Corporation, as amended, be amended andrestated in its entirety as follows:

 

ARTICLE I

 

The name of the Corporation (herein called the“Corporation”) is CONDUCTUS, INC.

 

ARTICLE II

 

The address of the registered office of theCorporation in the State of Delaware is 1013 Centre Road, City of Wilmington,County of New Castle, Delaware, 19805. The name of its registered agent at such address is Corporation ServiceCompany.

 

ARTICLE III

 

The nature of the business or purposes to be conductedor promoted is to engage in any lawful act or activity for which corporationsmay be organized under the General Corporation Law of Delaware.

 

ARTICLE IV

 

A.            Classesof Stock.  The Corporation isauthorized to issue two classes of stock to be designated, respectively,“Common Stock” and “Preferred Stock.” The total number 

 

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of shares that theCorporation is authorized to issue is Eighty Million (80,000,000) shares.  Seventy-five Million (75,000,000) shares,par value of one hundredths of a cent ($.0001) per share, shall be CommonStock, and Five Million (5,000,000) shares, par value of one hundredth of acent ($.0001) per share, shall be Preferred Stock.

 

B.            Rights,Preferences and Restrictions of Preferred Stock.  The Preferred Stock authorized by this Restated Certificate ofIncorporation may be issued from time to time in one or more series.  The Board of Directors is hereby authorizedto fix or alter the rights, preferences, privileges and restrictions granted toor imposed upon any series of Preferred Stock, and the number of sharesconstituting any such series and the designation thereof, or of any ofthem.  Subject to compliance withapplicable protective voting rights that have been or may be granted to thePreferred Stock or series thereof in Certificates of Determination or theCorporation’s Certificate of Incorporation (“Protective Provisions”), butnotwithstanding any other rights of the Preferred Stock or any series thereof,the rights, privileges, preferences and restrictions of any such additionalseries may be subordinated to, paripassu with (including,without limitation, inclusion in provisions with respect to liquidation andacquisition preferences, redemption and/or approval of matters by vote orwritten consent), or senior to any of those of any present or future class orseries of Preferred or Common Stock. Subject to compliance with applicable Protective Provisions, the Boardof Directors is also authorized to increase or decrease the number of shares ofany series, prior or subsequent to the issue of that series, but not below thenumber of shares of such series then outstanding.  In case the number of shares of any series shall be so decreased,the shares constituting such decrease shall resume the status that they hadprior to the adoption of the resolution originally fixing the number of sharesof such series.

 

C.            CommonStock.

 

1.             DividendRights.  Subject to any preferentialdividend rights applicable to the shares of the Preferred Stock, the holders ofshares of the Common Stock shall be entitled to receive such dividends as maybe declared from time to time by the Board of Directors.

 

2.             LiquidationRights.  In the event of anyvoluntary or involuntary liquidation, dissolution or winding up of theCorporation, after distribution in full of the preferential amounts to bedistributed to the holders of shares of the Preferred Stock, the holders ofshares of the Common Stock shall be entitled to receive all of the remainingassets of the Corporation available for distribution to its stockholders,ratably in proportion to the number of shares of the Common Stock held by them.

 

3.             Redemption.  The Common Stock is not redeemable.

 

4.             VotingRights.  The holders of shares ofCommon Stock shall be entitled to vote on all matters at all meetings of thestockholders of the Corporation and shall be entitled to one vote for eachshare of Common Stock entitled to vote at such meeting.

 

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ARTICLE V

 

Except as otherwise provided in this RestatedCertificate of Incorporation, in furtherance and not in limitation of thepowers conferred by statute, the Board of Directors is expressly authorized tomake, repeal, alter, amend and rescind any or all of the Bylaws of theCorporation.

 

ARTICLE VI

 

The number of directors of the Corporation shall befixed from time to time by a bylaw or amendment thereof duly adopted by theBoard of Directors or by the stockholders of the Corporation.

 

ARTICLE VII

 

Elections of directors need not be by written ballotunless the Bylaws of the Corporation shall so provide.

 

ARTICLE VIII

 

Meetings of stockholders may be held within or withoutthe State of Delaware, as the Bylaws may provide.  The books of the Corporation may be kept (subject to anyprovision contained in the statutes) outside the State of Delaware at suchplace or places as may be designated from time to time by the Board of Directorsor in the Bylaws of the Corporation.

 

ARTICLE IX

 

No action may be taken by the stockholders of theCorporation without a meeting, and no consents in lieu of a meeting may betaken pursuant to Section 228 of the Delaware General Corporation Law.

 

ARTICLE X

 

A director of the Corporation shall not be personallyliable to the Corporation or its stockholders for monetary damages for breachof fiduciary duty as a director, except for liability (i) for any breach of thedirector’s duty of loyalty to the Corporation or its stockholders, (ii) for actsor omissions not in good faith or that involve intentional misconduct or aknowing violation of law, (iii) under Section 174 of the Delaware GeneralCorporation Law, or (iv) for any transaction from which the director derivedany improper personal benefit.  If theDelaware General Corporation Law is hereafter amended to authorize, with theapproval of a corporation’s stockholders, further reductions in the liabilityof the Corporation’s directors for breach of fiduciary duty, then a director ofthe Corporation shall not be liable for any such breach to the fullest extentpermitted by the Delaware General Corporation Law as so amended.  Any repeal or modification of the foregoingprovisions of this Article X by the stockholders of the Corporation shall not adverselyaffect any right or protection of a director of the Corporation existing at thetime of such repeal or modification.

 

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ARTICLE XI

 

The Corporation reserves the right to amend, alter,change or repeal any provision contained in this Restated Certificate ofIncorporation, in the manner now or hereafter prescribed by statute, and allrights conferred upon stockholders herein are granted subject to thisreservation.

 

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IN WITNESS WHEREOF, CONDUCTUS, INC. has caused thisAmended and Restated Certificate of Incorporation to be signed by its Presidentand attested to by its Secretary this 19th day of June, 2002.

 
|                                                              |   | /s/      Charles  E. Shalvoy      |
|-------------------------------------------------------------------|--------|------------------------------------------------------------|
|                                                              |   | CHARLES E. SHALVOY, President  and Chief Executive Officer |
|                                                              |   |                                                       |
|                                                              |   |                                                       |
| ATTEST:                                                           |   |                                                       |
|                                                              |   |                                                       |
|                                                              |   |                                                       |
| /s/ Ron Wilderink                                                 |   |                                                       |
| RON WILDERINK                                                     |   |                                                       |
| Vice President of Finance, Chief Financial Officer  and Secretary |   |                                                       |

 

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