EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
DIGIRAD CORPORATION
Digirad Corporation, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation") DOES HEREBY
CERTIFY:
FIRST: The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of Delaware on January 2, 1997.
SECOND: The Restated Certificate of Incorporation of Digirad
Corporation in the form attached hereto as EXHIBIT A has been duly adopted in
accordance with the provisions of Sections 245 and 242 of the General
Corporation Law of the State of Delaware by the directors and stockholders of
the Corporation.
THIRD: The Restated Certificate of Incorporation so adopted reads in
full as set forth in EXHIBIT A attached hereto and is hereby incorporated herein
by this reference.
The undersigned has caused this Certificate to be signed this 15th day
of June, 2004, and hereby certifies that the facts stated here are true.
By /s/ VERA P. PARDEE
---------------------------------------------
Vera P. Pardee
Vice President, General Counsel and Secretary
EXHIBIT A
ARTICLE I
The name of this corporation is DIGIRAD CORPORATION (the
"Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 30 Old Rudnick Lane, City of Dover, County of Kent, 19901, and the
name of the registered agent of the Corporation in the State of Delaware at such
address is CorpAmerica, Inc.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may now or hereafter be organized under the
Delaware General Corporation Law.
ARTICLE IV
(A) CLASSES OF STOCK. The Corporation is authorized to issue two
classes of stock, denominated "Common Stock" and "Preferred Stock." The Common
Stock shall have a par value of $0.0001 per share and the Preferred Stock shall
have a par value of $0.0001 per share. The total number of shares of Common
Stock which the Corporation is authorized to issue is One Hundred Fifty Million
(150,000,000), and the total number of shares of Preferred Stock which the
Corporation is authorized to issue is Ten Million (10,000,000), which shares of
Preferred Stock shall be undesignated as to series.
(B) ISSUANCE OF PREFERRED STOCK. The Preferred Stock may be issued from
time to time in one or more series. The Board of Directors of the Corporation
(the "Board") is hereby authorized, by filing one or more certificates pursuant
to the Delaware General Corporation Law (each, a "Preferred Stock Designation"),
to fix or alter from time to time the designations, powers, preferences and
rights of each such series of Preferred Stock and the qualifications,
limitations or restrictions thereof, including without limitation the dividend
rights, dividend rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or prices, and
the liquidation preferences of any wholly-unissued series of Preferred Stock,
and to establish from time to time the number of shares constituting any such
series and the designation thereof, or any of them; and to increase or decrease
the number of shares of any series subsequent to the issuance of shares of that
series, but not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be decreased in accordance with
the foregoing sentence, the shares constituting such decrease shall resume the
status that they had prior to the adoption of the resolution originally fixing
the number of shares of such series.
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(C) RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF COMMON STOCK.
1. DIVIDEND RIGHTS. Subject to the rights, preferences, privileges,
restrictions and other matters pertaining to series of Preferred Stock that may
from time to time in the future come into existence, the holders of the Common
Stock shall be entitled to receive, when, as and if declared by the Board, out
of any assets of the Corporation legally available therefor, such dividends as
may be declared from time to time by the Board.
2. REDEMPTION. The Common Stock is not redeemable upon demand of
any holder thereof or upon demand of the Corporation except as expressly
provided by contract.
3. VOTING RIGHTS. Subject to the rights, preferences, privileges,
restrictions and other matters pertaining to series of Preferred Stock that may
from time to time in the future come into existence, the holder of each share of
Common Stock shall have the right to one vote, and shall be entitled to notice
of any stockholders' meeting in accordance with the Bylaws of the Corporation
(the "Bylaws"), and shall be entitled to vote upon such matters and in such
manner as may be provided by law. There shall be no cumulative voting.
ARTICLE V
(A) EXCULPATION. A director of the Corporation (each, a "Director" and
collectively, the "Directors") shall not be personally liable to the Corporation
or its stockholders 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 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 Delaware General Corporation Law or (iv) for
any transaction from which the Director derived any improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to further reduce
or to authorize, with the approval of the Corporation's stockholders, further
reductions in the liability of the Directors for breach of fiduciary duty, then
a Director shall not be liable for any such breach to the fullest extent
permitted by the Delaware General Corporation Law as so amended.
(B) INDEMNIFICATION. To the extent permitted by applicable law, the
Corporation is also authorized to provide indemnification of (and advancement of
expenses to) such agents (and any other persons to which Delaware law permits
the Corporation to provide indemnification) through bylaw provisions, agreements
with such agents or other persons, vote of stockholders or disinterested
Directors or otherwise, in excess of the indemnification and advancement
otherwise permitted by Section 145 of the Delaware General Corporation Law,
subject only to limits created by applicable Delaware law (statutory or
non-statutory), with respect to actions for breach of duty to the Corporation,
its stockholders and others.
(C) EFFECT OF REPEAL OR MODIFICATION. Any repeal or modification of any
of the foregoing provisions of this Article V shall be prospective and shall not
adversely affect any right or protection of a Director, officer, agent or other
person existing at the time of, or increase the liability of any Director with
respect to any acts or omissions of such Director occurring prior to, such
repeal or modification.
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ARTICLE VI
Elections of Directors need not be by written ballot except and to the
extent provided in the Bylaws. A change in the Range (as defined in the Bylaws)
may be effected only by affirmative vote of (i) at least sixty-six and
two-thirds percent (66- 2/3%) of the Directors then in office or (ii) the
holders of at least sixty-six and two-thirds percent (66- 2/3%) of the voting
power of all the then-outstanding shares of capital stock entitled to vote.
Subject to any limitations imposed by law, vacancies, including newly created
directorships, only may be filled by affirmative vote of a majority of the
Directors then in office, though less than a quorum, or by a sole remaining
Director. Subject to any limitations imposed by law, the Board, or any
individual Director, may be removed from office at any time only with cause by
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66- 2/3%) of the voting power of all the then-outstanding shares of capital
stock entitled to vote generally in the election of Directors.
ARTICLE VII
No holder of shares of stock of the Corporation shall have any
preemptive or other right, except as such rights are expressly provided by
contract, to purchase or subscribe for or receive any shares of any class, or
series thereof, of stock of the Corporation, whether now or hereafter
authorized, or any warrants, options, bonds, debentures or other securities
convertible into, exchangeable for or carrying any right to purchase any share
of any class, or series thereof, of stock; but such additional shares of stock
and such warrants, options, bonds, debentures or other securities convertible
into, exchangeable for or carrying any right to purchase any shares of any
class, or series thereof, of stock may be issued or disposed of by the Board to
such persons, and on such terms and for such lawful consideration as in its
discretion it shall deem advisable or as the Corporation shall have by contract
agreed.
ARTICLE VIII
The Corporation is to have perpetual existence.
ARTICLE IX
The Corporation reserves the right to adopt, amend or repeal any
provision contained in this Restated Certificate of Incorporation and/or any
provision contained in any amendment to or restatement of this Restated
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on stockholders herein are granted subject to
this reservation; provided, however, that no amendment, alteration, change or
repeal may be made to Article V, VI, IX, X or XI without the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66-2/3%) of the
outstanding voting stock of the Corporation, voting together as a single class.
ARTICLE X
The Board may from time to time adopt, amend or repeal the Bylaws by
the requisite affirmative vote of Directors as set forth in the Bylaws;
provided, however, that the stockholders may adopt, amend or repeal any bylaw
adopted by the Board by the requisite affirmative vote of stockholders as set
forth in the Bylaws; and, provided further, that no amendment or supplement to
the Bylaws adopted by the Board shall vary or conflict with any amendment or
supplement thus adopted by the stockholders.
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ARTICLE XI
No action shall be taken by the stockholders of the Corporation except
at an annual or special meeting of stockholders called in accordance with the
Bylaws, and no action shall be taken by the stockholders by written consent.
Special meetings of the stockholders shall be called only as provided in the
Bylaws.
ARTICLE XII
Advance notice of stockholder nominations for the election of Directors
and of business to be brought by stockholders before any meeting of the
stockholders of the Corporation shall be given in the manner provided in the
Bylaws.
ARTICLE XIII
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
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