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EXHIBIT 3.1(d)
RESTATED CERTIFICATE OF INCORPORATION
OF
HESKA CORPORATION
HESKA CORPORATION, a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
FIRST: The name of this corporation is Heska Corporation.
SECOND: The original Certificate of Incorporation of the
corporation was filed with the Secretary of State of the State of
Delaware on March 27, 1997 and the original name of the corporation was
Heska Merger Corporation. A Restated Certificate of Incorporation of
the corporation was filed with the Secretary of State of the State of
Delaware on May 28, 1997. A Certificate of Merger whereby Heska
Corporation, a California corporation, was merged with and into this
corporation and this corporation's name was changed to Heska
Corporation was filed with the Secretary of State of the State of
Delaware on May 29, 1997. A Restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on July 7,
1997.
THIRD: The Restated Certificate of Incorporation of said
corporation shall be amended and restated to read in full as follows:
ARTICLE I
The name of this corporation is HESKA CORPORATION.
ARTICLE II
The registered office of the corporation within the State of Delaware
is located at 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
ARTICLE III
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
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ARTICLE IV
A. Authorized Stock. This corporation is authorized to issue two
classes of shares, to be designated Common Stock and Preferred Stock,
respectively. This corporation is authorized to issue seventy-five million
(75,000,000) shares of Common Stock, $.001 par value per share, and twenty-five
million (25,000,000) shares of Preferred Stock, $.001 par value per share.
B. Preferred Stock. The Preferred Stock may be issued in any number of
series, as determined by the Board of Directors. The Board of Directors may by
resolution fix the designation and number of shares of any such series, and may
determine, alter, or revoke the rights, preferences, privileges and restrictions
granted to or imposed upon any wholly unissued series. The Board of Directors
may thereafter in the same manner, within the limits and restrictions stated in
any resolution or resolutions of the Board of Directors originally fixing the
number of shares constituting any series, increase or decrease the number of
shares of any such series (but not below the number of shares of that series
then outstanding). In case the number of shares of any series shall be
decreased, the shares constituting such decrease shall resume the status which
they had prior to the adoption of the resolution originally fixing the number of
shares of such series.
C. Common Stock.
1. Relative Rights of Preferred Stock and Common Stock. All
preferences, voting powers, relative, participating, optional or other
special rights and privileges, and qualifications, limitations or
restrictions of the Common Stock are expressly made subject and
subordinate to those that may be fixed with respect to any shares of
the Preferred Stock.
2. Voting Rights. Except as otherwise required by law or this
Restated Certificate of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held by such
holder of record on the books of the corporation for the election of
directors and on all matters submitted to a vote of stockholders of the
corporation.
3. Dividends. Subject to the preferential rights of the
Preferred Stock, if any, the holders of shares of Common Stock shall be
entitled to receive, when and if declared by the Board of Directors,
out of the assets of the corporation which are by law available
therefor, dividends payable either in cash, in property or in shares of
capital stock.
4. Liquidation, Dissolution or Winding Up. In the event of any
dissolution, liquidation or winding up of the affairs of the
corporation, after distribution in full of the preferential amounts, if
any, to be distributed to the holders of shares of the Preferred Stock,
holders of Common Stock shall be entitled, unless otherwise provided by
law or this
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Restated Certificate of Incorporation, to receive all of the remaining
assets of the corporation of whatever kind available for distribution
to stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
ARTICLE V
The corporation is to have perpetual existence.
ARTICLE VI
A. Classified Board. The Board of Directors shall be divided into three
classes, designated Class I, Class II and Class III, as nearly equal in number
as possible, and the term of office of directors of one class shall expire at
each annual meeting of stockholders, and in all cases as to each director when
such director's successor shall be elected and shall qualify or upon such
director's earlier resignation, removal from office, death or incapacity.
Additional directorships resulting from an increase in number of directors shall
be apportioned among the classes as equally as possible. The initial term of
office of directors of Class I shall expire at the annual meeting of
stockholders in 1998; that of Class II shall expire at the annual meeting in
1999; and that of Class III shall expire at the annual meeting in 2000; and in
all cases as to each director when such director's successor shall be elected
and shall qualify or upon such director's earlier resignation, removal from
office, death or incapacity. At each annual meeting of stockholders, beginning
with the annual meeting of stockholders in 1998, the number of directors equal
to the number of directors of the class whose term expires at the time of such
meeting (or, if less, the number of directors properly nominated and qualified
for election) shall be elected to hold office until the third succeeding annual
meeting of stockholders after their election.
B. Changes. The Board of Directors of this corporation, by amendment
to the corporation's bylaws, is expressly authorized to change the number of
directors in any or all of the classes of directors without the consent of the
stockholders.
C. Elections. Elections of directors need not be by written ballot
unless the Bylaws of the corporation shall so provide.
D. Vote Required to Amend or Repeal. The affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then outstanding shares of the stock of the corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to amend in any respect or repeal this Article
VI.
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ARTICLE VII
A. Special Meetings of Stockholders. Special meetings of the
stockholders of the corporation may be called for any purpose or purposes,
unless otherwise prescribed by statute or by this Restated Certificate of
Incorporation, only at the request of the Chairman of the Board of Directors,
the Chief Executive Officer or President of the corporation or by a resolution
duly adopted by the affirmative vote of a majority of the Board of Directors.
ARTICLE VIII
A. Amend or Repeal Bylaws. The Board of Directors is expressly
empowered to adopt, amend or repeal the Bylaws of the corporation; provided,
however, that any adoption, amendment or repeal of the Bylaws of the corporation
by the Board of Directors shall require the approval of at least sixty-six and
two-thirds percent (66 2/3%) of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any resolution providing for adoption, amendment or repeal is
presented to the Board of Directors). The stockholders shall also have the power
to adopt, amend or repeal the Bylaws of the corporation, provided, however, that
in addition to any vote of the holders of any class or series of stock of the
corporation required by law, the affirmative vote of the holders of more than
fifty percent (50%) of the voting power of all of the then outstanding shares of
the stock of the corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required for such
adoption, amendment or repeal by the stockholders of any provisions of the
Bylaws of the corporation. Notwithstanding the foregoing sentence, the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the voting power of all of the then outstanding shares of the stock of
the corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for the amendment or repeal of
Article 3.1 of the Bylaws of the corporation.
ARTICLE IX
The books of the corporation may be kept at such place within or
without the State of Delaware as the bylaws of the corporation may provide or as
may be designated from time to time by the board of directors of the
corporation.
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ARTICLE X
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 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 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 this
corporation as 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.
ARTICLE XI
A. Limitation on Liability. A director of the corporation 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 (1) for any
breach of the director's duty of loyalty to the corporation and its
stockholders; (2) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violations of law; (3) under Section 174 of
the Delaware General Corporation Law; or (4) for any transaction from which the
director derived an improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to further
eliminate or limit the liability of directors, then the liability of a director
of the corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended Delaware
General Corporation Law.
B. Indemnification. The corporation is authorized to indemnify the
directors and officers of this corporation to the fullest extent permissible
under Delaware law.
C. Insurance. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense,
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liability or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
D. Repeal and Modification. Any repeal or modification of the foregoing
provisions of this Article XI shall not adversely affect any right or protection
of any director, officer, employee or agent of the corporation existing at the
time of such repeal or modification.
ARTICLE XII
The corporation reserves the right to amend or repeal any provision
contained in this Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon a stockholder
herein are granted subject to this reservation.
* * * * *
Four: This Restated Certificate of Incorporation was duly
adopted by the Board of Directors of this corporation.
Five: This Restated Certificate of Incorporation was duly
adopted by written consent of the stockholders of the corporation in
accordance with Sections 228, 242 and 245 of the General Corporation
Law of the State of Delaware and written notice of such action has been
given as provided in Section 228.
IN WITNESS WHEREOF, Heska Corporation has caused this certificate to be
signed by the undersigned officer, thereunto duly authorized, this ____day of
_____, 2000.
By:
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Name:
Title:
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