AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

 

 

                                       OF

 

 

                               EMAGIN CORPORATION

 

 

                             a Delaware Corporation

 

 

                          (Incorporated under the name

                      FED Corporation on November 30, 1993)

 

 

         EMAGIN CORPORATION, a corporation organized and existing under and by

virtue of the General Corporation Law of the State of Delaware (the "DGCL"),

incorporated under the name "FED Corporation" on November 30, 1993, DOES HEREBY

CERTIFY THAT:

         FIRST: The Board of Directors of the Corporation, by unanimous written

consent pursuant to section 141(f) of the DGCL, duly adopted resolutions

proposing and approving the Amended and Restated Certificate of Incorporation of

the Corporation, declaring its advisability and directing that such Amended and

Restated Certificate of Incorporation be submitted to the stockholders of the

Corporation to consider and adopt the same.

         SECOND: Pursuant to Section 228 of the DGCL, the adoption of the

Amended and Restated Certificate of Incorporation was consented to in writing by

a majority of the holders of the voting power of all shares of capital stock of

the Corporation entitled to vote thereon, and by a majority of the holders of

each outstanding class of capital stock of the Corporation entitled to vote

thereon.

 

 

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         THIRD: The Amended and Restated Certificate of Incorporation was duly

adopted in accordance with the provisions of the DGCL.

         FOURTH: Pursuant to Sections 245(b) and 242 of the DGCL, the

Certificate of Incorporation, as amended, of eMagin Corporation, a Delaware

corporation (the "Corporation"), is hereby restated and amended to read in its

entirety as follows:

 

                              AMENDED AND RESTATED

                          CERTIFICATE OF INCORPORATION

 

         ONE: Name. The name of the Corporation is "eMagin Corporation".

 

         TWO: Registered Agent. The registered office of the Corporation in the

State of Delaware is located at 1209 Orange Street in the City of Wilmington and

the County of Newcastle. The name of the registered agent of the Corporation in

the State of Delaware at such address is the Corporation Trust Company.

 

         THREE: Purpose. The purpose of the Corporation is to engage, directly

or indirectly, in any lawful act or activity for which corporations may be

organized under the General Corporation Law of the State of Delaware as from

time to time in effect.

 

         FOUR: Capital Stock. The total authorized capital stock of the

Corporation shall be 110,000,000 shares consisting of 100,000,000 shares of

Common Stock, par value $0.001 per share and 10,000,000 shares of Series

Preferred Stock, par value $0.001 per share.

 

         The preferences, relative, participating, optional or other special

rights, qualifications, limitations, restrictions, voting powers and privileges

of each class of the Corporation's capital stock shall be as follows:

 

 

A. Series Preferred Stock.

 

         The Series Preferred Stock may be issued in one or more series as shall

from time to time be created and authorized to be issued by the Board of

Directors as hereinafter provided.

 

         (a) The Board of Directors is hereby expressly authorized, by

resolution or resolutions from time to time adopted providing for the issuance

of any series of the Series Preferred Stock, to the extent not fixed by the

provisions hereinafter set forth or otherwise provided by law, to determine that

any series of the Series Preferred Stock shall be without voting powers and to

fix and state the voting powers, full or limited, if any, the designations,

powers, preferences and relative, participating, optional and other special

rights, if any, of the shares of each series of the Series Preferred Stock, and

 

 

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the qualifications, limitations and restrictions thereof, including (but without

limiting the generality of the foregoing) any of the following:

 

         (1) the number of shares to constitute such series and the distinctive

name and serial designation thereof;

 

         (2) the annual dividend rate or rates and the date on which the first

dividend on shares of such series shall be payable and all subsequent dividend

payment dates;

 

         (3) whether dividends are to be cumulative or non-cumulative, the

participating or other special rights, if any, with respect to the payment of

dividends and the date from which dividends on all shares of such series issued

prior to the record date for the first dividend shall be cumulative; provided

that, such dividends shall be cumulative only if and to the extent set forth in

a certificate filed pursuant to law;

 

         (4) whether any series shall be subject to redemption and, if so, the

manner of redemption and the redemption price or prices for such series, which

may consist of a redemption price or scale of redemption prices applicable only

to redemption for a sinking fund (which terms as used in this clause shall

include any fund or provisions for the periodic purchase or retirement of

shares), and a different redemption price or scale of redemption prices

applicable to any other redemption;

 

         (5) whether or not the shares of such series shall be subject to the

operation of a purchase, retirement or sinking fund, and, if so, whether such

purchase, retirement or sinking fund shall be cumulative or non-cumulative, the

extent to and the manner in which such fund shall be applied to the purchase or

redemption of the shares of such series for retirement or for other corporate

purposes and the terms and provisions relative to the operation thereof;

 

         (6) the terms, if any, upon which shares of such series shall be

convertible into, or exchangeable for, or shall have rights to purchase or other

privileges to acquire shares of stock of any other class or of any other series

of the same or any other class, including the price or prices or the rate or

rates of conversion, exchange, purchase or acquisition and the terms of

adjustment, if any;

 

         (7) the limitations and restrictions, if any, to be effective while any

shares of such series are outstanding upon the payment of dividends or making of

other distributions on, and upon the purchase, redemption, or other acquisition

of, the Common Stock or any other series or class of stock of the Corporation

ranking junior to the shares of such series, either as to dividends or upon

liquidation; and

 

         (8) the conditions or restrictions, if any, upon the creation of

indebtedness of the Corporation or upon the issue of any additional stock of any

class (including additional shares of such series or of any other series of the

Series Preferred Stock) ranking on a parity with or prior to the shares of such

series either as to dividends or upon liquidation.

 

         (b) Each share of each series of the Series Preferred Stock shall have

the same relative rights and be identical in all respects with all the other

shares of the same series, except that shares of any one series issued at

 

 

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different times may differ as to the dates, if any, from which dividends thereon

shall be cumulative. Except as otherwise provided by law or specified in this

Article FOUR any series of the Series Preferred Stock may differ from any other

series with respect to any one or more of the voting powers, designations,

powers, preferences and relative, participating, optional and other special

rights, if any, and the qualifications, limitations and restrictions thereof.

 

         (c) Before any dividends on any class of stock of the Corporation

ranking junior to the Series Preferred Stock (other than dividends payable in

shares of any class of stock of the Corporation ranking junior to the Series

Preferred Stock) shall be declared or paid or set apart for payment, the holders

of shares of each series of the Series Preferred Stock shall be entitled to such

cash dividends, but only when and as declared by the Board of Directors out of

funds legally available therefor, as they may be entitled to in accordance with

the resolution or resolutions adopted by the Board of Directors providing for

the issuance of such series, payable on such dates as may be fixed in such

resolution or resolutions.

 

         (d) In the event of any liquidation, dissolution or winding up of the

Corporation, whether voluntary or involuntary, before any payment or

distribution of the assets of the Corporation shall be made to or set apart for

the holders of shares of any class of stock of the Corporation ranking junior to

the Series Preferred Stock, the holders of the shares of each series of the

Series Preferred Stock shall be entitled to receive payment of the amount per

share fixed in the resolution or resolutions adopted by the Board of Directors

providing for the issuance of the shares of such series, plus an amount equal to

all dividends accrued thereon to the date of final distribution to such holders.

If, upon any liquidation, dissolution or winding up of the Corporation, the

assets of the Corporation, or proceeds thereof, distributable among the holders

of the shares of the Series Preferred Stock shall be insufficient to pay in full

the preferential amount aforesaid, then such assets, or the proceeds thereof,

shall be distributed among such holders ratably in accordance with the

respective amounts which would be payable on such shares if all amounts payable

thereon were paid in full. For the purposes of this paragraph (d), the sale,

conveyance, exchange or transfer (for cash, shares of stock, securities or other

consideration) of all or substantially all of the property or assets of the

Corporation or a consolidation or merger of the Corporation with one or more

corporations shall not be deemed to be a dissolution, liquidation or winding up,

voluntary or involuntary.

 

         (e) The term "junior stock", as used in relation to the Series

Preferred Stock, shall mean the Common Stock and any other class of stock of the

Corporation hereafter authorized which by its terms shall rank junior to the

Series Preferred Stock as to dividends and as to the distribution of assets on

liquidation.

 

         (f) Before the Corporation shall issue any shares of the Series

Preferred Stock of any series authorized as hereinbefore provided, a certificate

setting forth a copy of the resolution or resolutions with respect to such

series adopted by the Board of Directors of the Corporation pursuant to the

foregoing authority vested in said Board of Directors shall be made, filed and

recorded in accordance with the then applicable requirements, if any, of the

laws of the State of Delaware, or, if no certificate is then so required, such

certificate shall be signed and acknowledged on behalf of the Corporation by its

President or a Vice-President and attested by its Secretary or an Assistant

 

 

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Secretary and such certificate shall be filed and kept on file at the registered

office of the Corporation in the State of Delaware and in such other place or

places as the Board of Directors shall designate.

 

         (g) Shares of any series of the Series Preferred Stock which shall be

issued and thereafter acquired by the Corporation through purchase, redemption,

conversion or otherwise, shall return to the status of authorized but unissued

shares of the Series Preferred Stock of the same series unless otherwise

provided in the resolution or resolutions of the Board of Directors. Unless

otherwise provided in the resolution or resolutions of the Board of Directors

providing for the issuance thereof, the number of authorized shares of stock of

any such series may be increased or decreased (but not below the number of

shares thereof then outstanding nor in such manner as to exceed the number of

shares authorized in Section Four) by resolution or resolutions of the Board of

Directors and the filing of a certificate complying with the requirements

referred to in subparagraph (f) above. In case the number of shares of any such

series of the Series Preferred Stock shall be decreased, the shares representing

such decrease shall, unless otherwise provided in the resolution or resolutions

of the Board of Directors providing for the issuance thereof, resume the status

of authorized but unissued shares of the Series Preferred Stock, undesignated as

to series.

 

 

B. Common Stock.

 

         Subject to the requirements of law, this Amended and Restated

Certificate of Incorporation, as amended from time to time, and the resolution

or resolutions of the Board of Directors creating or modifying any series of the

Series Preferred Stock, the holders of Common Stock shall (i) in the event of

any liquidation, dissolution or other winding up of the Corporation, whether

voluntary or involuntary, and after all holders of the Series Preferred Stock

shall have been paid in full the amounts to which they respectively shall be

entitled, be entitled to receive all the remaining assets of the Corporation of

whatever kind, such assets to be distributed pro rata to the holders of the

Common Stock; and (ii) after payment in full of all dividends to which holders

of the Series Preferred Stock shall be entitled, be entitled to receive such

dividends as and when the same may be declared from time to time by the Board of

Directors of the Corporation out of funds legally available therefor.

 

         Except as otherwise required by law and the provisions of this Amended

and Restated Certificate of Incorporation and except as provided by the

resolution or resolutions of the Board of Directors creating or amending any

series of the Series Preferred Stock, the holders of the Common Stock of the

Corporation possess full voting power for the election of Directors and for all

other purposes, and each holder thereof shall be entitled to one vote for each

share held by such holder.

 

         FIVE: Term. The Corporation is to have perpetual existence.

 

         SIX: Board of Directors.

 

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(a) All corporate powers shall be exercised by or under the authority of, and

the business and affairs of the Corporation shall be managed under the direction

of, a Board of Directors consisting of not less than three (3) nor more than

nine (9) persons. The exact number of Directors within the minimum and maximum

limitations specified in the preceding sentence shall be fixed from time to time

by the Board of Directors pursuant to a resolution adopted by a majority of the

entire Board of Directors.

 

(b) Classified Board. The Board of Directors shall be divided into three

classes, each such class as nearly equal in number as the then-authorized number

of Directors constituting the Board of Directors permits, with the term of

office of one class expiring each year. Following approval of this Amended and

Restated Certificate of Incorporation, the stockholders shall elect the one

class of Directors for a term expiring at the annual meeting of stockholders to

be held in 2002, another class of Directors for a term expiring at the annual

meeting of stockholders to be held in 2003, and another class of Directors for a

term expiring at the annual meeting of stockholders to be held in 2004.

Thereafter, each Director shall serve for a term ending at the third annual

meeting of stockholders of the Corporation following the annual meeting at which

such Director was elected. Members of each class shall hold office until their

successors are elected and qualified. At each succeeding annual meeting of the

stockholders of the Corporation, the successors of the class of Directors whose

term expires at that meeting shall be elected by a plurality vote of all votes

cast at such meeting to hold office for a term expiring at the annual meeting of

stockholders held in the third year following the year of their election.

 

 

                  (c) Vacancies. Subject to the rights of the holders of any

Series Preferred Stock then outstanding, newly created directorships resulting

from any increase in the authorized number of Directors or any vacancies in the

Board of Directors resulting from death, resignation, retirement,

disqualification, removal from office or other cause shall be filled by a

majority vote of the Directors then in office, and Directors so chosen shall

hold office for a term expiring at the annual meeting of stockholders at which

the term of the class to which they have been elected expires. No decrease in

the number of Directors constituting the Board of Directors or amendment to this

Certificate of Incorporation shall shorten the term of any incumbent Director.

 

                  (d) Removal. Subject to the rights of the holders of any

Series Preferred Stock then outstanding, 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 662/3% of the voting power of

all of the shares of the Corporation entitled to vote for the election of

Directors.

 

         SEVEN: Director Nomination Procedure; Annual Meeting Business.

 

                  (a) Director Nomination Procedure. Nominations for the

election of Directors may be made by the affirmative vote of a majority of the

Board of Directors or a duly authorized committee thereof or by any holder of

record of shares of capital stock of the Corporation entitled to vote generally

for the election of Directors; provided that any stockholder may nominate one or

more persons for election as Directors at a meeting only if written notice of

such stockholder's intention to make such nomination or nominations has been

 

 

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given, either by personal delivery or by United States mail, postage prepaid, to

the Secretary of the Corporation not later than (i) with respect to an election

to be held at an annual meeting of stockholders, not less than ninety (90) days

in advance of such annual meeting if such annual meeting is to be held on or

after the one-year anniversary of the previous year's annual meeting, or for any

other annual meeting, on or before the later of (x) the close of business on the

fifteenth day following the date on which notice of the meeting is first given

to stockholders and (y) the date which is ninety (90) days before the date of

such annual meeting, and (ii) with respect to an election to be held at a

special meeting of stockholders for the election of Directors, the close of

business on the seventh day following the date on which notice of the meeting is

first given to stockholders. For the purposes of this paragraph (a) of this

Article SIX, the date notice of a meeting is deemed to have been first given

shall include, but not be limited to, the date on which disclosure of the date

of the meeting is first made in a press release reported by the Dow Jones News

Service, Associated Press or comparable national news service, or in a document

publicly filed by the Corporation with the Securities and Exchange Commission

pursuant to Section 13, 14 or 15(d) (or the rules and regulations thereunder) of

the Securities Exchange Act of 1934, as amended. Each such notice to the

Secretary shall set forth the following information: (i) the name and address of

record of the stockholder who intends to make the nomination, (ii) a

representation that the stockholder is a holder of record of stock of the

Corporation entitled to vote generally for the election of Directors at such

meeting and intends to appear in person or by proxy at the meeting to nominate

the person or persons specified in the notice, (iii) the name, age, business and

residential addresses and principal occupation or employment of each nominee,

(iv) a description of all arrangements or understandings between the stockholder

and each proposed nominee and any other person or persons (naming such person or

persons) pursuant to which the nomination or nominations are to be made by the

stockholder, (v) such other information regarding each proposed nominee as would

be required to be included in a proxy statement filed pursuant to the rules and

regulations of the Securities and Exchange Commission and (vi) the written

consent of each proposed nominee to serve as a Director of the Corporation if so

elected. The Corporation may require the proposed nominee to furnish such other

information as may reasonably be required by the Corporation to determine the

eligibility of such proposed nominee to serve as a Director of the Corporation.

The presiding officer of the meeting may, if the facts warrant, determine that a

nomination was not made in accordance with the foregoing procedure, and if such

officer should so determine, such officer shall so declare to the meeting and

the defective nomination shall be disregarded.

 

(b) Annual Meeting Business. At an annual meeting of the stockholders, only such

business shall be conducted as shall have been properly brought before the

meeting. To be properly brought before an annual meeting, business must be (i)

specified in the notice of meeting (or any supplement thereto) given by or at

the direction of the Board of Directors, (ii) otherwise properly brought before

the meeting by or at the direction of the Board of Directors or (iii) otherwise

properly brought before the meeting by a stockholder. For business to be

properly brought before an annual meeting by a stockholder, the stockholder must

have given timely notice thereof in writing to the Secretary of the Corporation.

To be timely, a stockholder's notice must be received at the principal executive

offices of the Corporation (i) not less than ninety (90) days in advance of a

meeting if such meeting is to be held on or after the one-year anniversary of

the previous year's annual meeting, and (ii) with respect to any other annual

 

 

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meeting of stockholders, the later of (x) the close of business on the fifteenth

day following the date on which notice of the meeting is first given to

stockholders and (y) the date which is ninety (90) days before the date of such

annual meeting.

 

         For the purposes of this paragraph (b) of this Article SEVEN, the date

of public disclosure of a meeting shall include, but not be limited to, the date

on which disclosure of the date of the meeting is first made in a press release

reported by the Dow Jones News Service, Associated Press or comparable national

news service, or in a document publicly filed by the Corporation with the

Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) (or the

rules and regulations thereunder) of the Securities Exchange Act of 1934, as

amended. A stockholder's notice to the Secretary of the Corporation shall set

forth as to each matter the stockholder proposes to bring before the annual

meeting (i) a brief description of the business desired to be brought before the

annual meeting and the reasons for conducting such business at the annual

meeting, (ii) the name, age and business and residential addresses, as they

appear on the Corporation's records, of the stockholder proposing such business,

(iii) the class and number of shares of the Corporation which are beneficially

owned by the stockholder and (iv) any material interest of the stockholder in

such business. Notwithstanding anything in the Bylaws of the Corporation to the

contrary, no business shall be conducted at an annual meeting except in

accordance with the procedures set forth herein. The Chairman of the annual

meeting shall, if the facts warrant, determine and declare to the meeting that

business was not properly brought before the meeting and in accordance with the

provisions hereof, and if the Chairman should so determine, the Chairman shall

so declare to the meeting and any such business not properly brought before the

meeting shall not be transacted.

 

         EIGHT: By-laws. In furtherance and not in limitation of the powers

conferred by statute, and except as otherwise provided herein or in the By-laws

of the Corporation, the Board of Directors is expressly authorized to make,

alter or repeal the By-laws of the Corporation.

 

         NINE: Meetings. Special meetings of stockholders, for any purpose or

purposes, unless otherwise prescribed by statute, may be called by the Chairman

of the Board or by the Board of Directors pursuant to a resolution adopted by a

majority of the total number of Directors which the Corporation would have if

there were no vacancies, and such special meeting may not be called by any other

person or persons.

 

         TEN: Limitation on Actions by Consent. No action required to be taken

or which may be taken at any annual or special meeting of stockholders of the

Corporation may be taken by written consent without a meeting, except that any

such action may be taken without prior notice and without a vote, if a consent

in writing, setting forth that action so taken shall be signed by all the

stockholders of the Corporation entitled to vote thereon.

 

 

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         ELEVEN: Indemnification. The Directors of the Corporation shall be

protected from personal liability, through indemnification or otherwise, to the

fullest extent permitted under the General Corporation Law of the State of

Delaware as from time to time in effect.

 

         (a) A Director of the Corporation shall under no circumstances have any

personal liability to the Corporation or its stockholders for monetary damages

for breach of fiduciary duty as a Director except for those breaches and acts or

omissions with respect to which the General Corporation Law of the State of

Delaware, as from time to time amended, expressly provides that this provision

shall not eliminate or limit such personal liability of Directors. Neither the

modification or repeal of this paragraph (a) of Article ELEVEN nor any amendment

to said General Corporation Law that does not have retroactive application shall

limit the right of Directors hereunder to exculpation from personal liability

for any act or omission occurring prior to such amendment, modification or

repeal.

 

         (b) The Corporation shall indemnify each Director and Officer of the

Corporation to the fullest extent permitted by applicable law, except as may be

otherwise provided in the Corporation's By-laws, and in furtherance hereof the

Board of Directors is expressly authorized to amend the Corporation's By-laws

from time to time to give full effect hereto, notwithstanding possible self

interest of the Directors in the action being taken. Neither the modification or

repeal of this paragraph (b) of Article ELEVEN nor any amendment to the General

Corporation Law of the State of Delaware that does not have retroactive

application shall limit the right of Directors and Officers to indemnification

hereunder with respect to any act or omission occurring prior to such

modification, amendment or repeal.

 

         TWELVE: Amendments. The Corporation reserves the right to amend, alter,

change or repeal any provision contained in this Amended and Restated

Certificate of Incorporation in the manner now or hereafter prescribed by

statute, and all rights conferred upon stockholders herein are granted subject

to this reservation. Notwithstanding anything to the contrary set forth herein,

Articles SIX, SEVEN, EIGHT, NINE, TEN and this Article TWELVE may not be amended

without the affirmative vote of shareholders holdings shares representing 66 2/3

% of the votes entitled to be cast in respect thereof.

 

 

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         IN WITNESS WHEREOF, the Corporation has caused this Amended and

Restated Certificate to be duly executed this [__] day of [_______], 2001.

 

 

 

CERTIFICATE OF AMENDMENT
                                       TO
                              AMENDED AND RESTATED
                          CERTIFICATE OF INCORPORATION
                                       OF
                               EMAGIN CORPORATION,
 
                             a Delaware corporation
 
     eMagin Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify that:
 
FIRST:  The name of the Corporation is eMagin Corporation.
 
SECOND: Pursuant to Section 242 of the Delaware General Corporation Law, the
Board of Directors of the Corporation has duly adopted, and a majority of the
outstanding stock entitled to vote thereon and a majority of the outstanding
stock of each class entitled to vote as a class has duly approved, the amendment
to the Amended and Restated Certificate of Incorporation of the Corporation, as
amended, set forth in this Certificate of Amendment.
 
THIRD: The Board of Directors hereby declares it advisable and in the best
interest of the Corporation that the First Paragraph of Article Four of the
Amended And Restated Certificate of Incorporation be superceded and replaced as
follows:
 
          "FOUR: Capital Stock. The total authorized capital stock of the
          Corporation shall be 210,000,000 shares consisting of 200,000,000
          shares of Common Stock, par value $0.001 per share and 10,000,000
          shares of Series Preferred Stock, par value $0.001 per share."
 
 
FOURTH: That this Certificate of Amendment shall be effective as of _____,
on_______.
 
     IN WITNESS WHEREOF, eMagin Corporation has caused this Certificate to be
signed by________________, its ___________________, who hereby acknowledges
under penalties of perjury that the facts herein stated are true and that this
Certificate is his act and deed, this_________ day of ______.
 
                                                              EMAGIN CORPORATION
 
                                                        By:
 
                                                      Name:
                                                     Title:
 

[As filed: 06-13-2003]