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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
DIEDRICH COFFEE, INC.
Diedrich Coffee, Inc., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Diedrich Coffee, Inc. Diedrich Coffee,
Inc. was originally incorporated under the same name, and the original
Certificate of Incorporation of this Corporation was filed with the Secretary of
State of the State of Delaware on August 29, 1996. Certificates of Amendment to
the Certificate of Incorporation of this Corporation were filed with the
Secretary of State of the State of Delaware on May 8, 2001, and May 9, 2001.
2. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Certificate of Incorporation of
this Corporation as heretofore amended or supplemented and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Certificate of Incorporation is heretofore restated to
read in its entirety as follows:
RESTATED CERTIFICATE OF INCORPORATION
OF
DIEDRICH COFFEE, INC.
ARTICLE I
NAME OF CORPORATION
The name of this corporation is: DIEDRICH COFFEE, INC.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the corporation in the State of
Delaware is 9 East Loockerman Street, in the City of Dover, County of Kent, and
the name of its registered agent at that address is National Registered Agents,
Inc.
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ARTICLE III
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 IV
AUTHORIZED CAPITAL STOCK
The corporation is authorized to issue two classes of shares of stock to be
designated, respectively, "Common" and "Preferred"; the total number of such
shares shall be eleven million seven hundred and fifty thousand (11,750,000);
the total number of Common shares shall be eight million seven hundred fifty
thousand (8,750,000), each having a par value of one cent ($.01); and the total
number of Preferred shares shall be three million (3,000,000), each having a par
value of one cent ($.01).
The Preferred shares may be issued from time to time in one or more series.
The Board of Directors is hereby vested with authority to fix by resolution or
resolutions the designations and the powers, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, including without limitation, the dividend rate,
conversion rights, redemption price and liquidation preference, of any series of
Preferred shares, and to fix the number of shares constituting any such series,
and to increase or decrease the number of shares of any such series (but not
below the number of shares thereof then outstanding). In case the number of
shares of any such series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the adoption of the
resolution or resolutions originally fixing the number of shares of such series.
ARTICLE V
BOARD POWER REGARDING BYLAWS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, repeal, alter, amend and
rescind the bylaws of the corporation.
ARTICLE VI
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the bylaws of
the corporation shall so provide.
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ARTICLE VII
LIMITATION OF DIRECTOR LIABILITY
To the fullest extent permitted by the Delaware General Corporation Law as
the same exists or may hereafter be amended, a director of the corporation shall
not be liable to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. If the Delaware General Corporation Law
is amended after the date of the filing of this Certificate of Incorporation to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended from time to time. No repeal or
modification of this Article VII by the stockholders shall adversely affect any
right or protection of a director of the corporation existing by virtue of this
Article VII at the time of such repeal or modification.
ARTICLE VIII
CORPORATE POWER
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this 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.
ARTICLE IX
CREDITOR COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this 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 this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this 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 this 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 this 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 this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
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 this corporation, as the case may be, and also on this
corporation.
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4. This Restated Certificate of Incorporation was duly adopted by the Board
of Directors in accordance with Section 245 of the General Corporation Law of
Delaware.
5. This Restated Certificate of Incorporation shall become effective upon
filing.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
signed by Matthew C. McGuinness, its authorized officer this 11th day of May,
2001.
DIEDRICH COFFEE, INC.
/s/ Matthew C. McGuinness
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Matthew C. McGuinness
Chief Financial Officer
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