Certificate of Incorporation - Sirius Satellite Radio Inc.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SIRIUS SATELLITE RADIO INC.
Sirius Satellite Radio Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies that:
1. The name of the Corporation is Sirius Satellite Radio Inc. The name
under which the Corporation was originally incorporated is Satellite CD Radio,
Inc. The original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on May 17, 1990;
2. The Board of Directors of the Corporation (the "Board of Directors")
has duly adopted this amendment and restatement of the Certificate of
Incorporation in accordance with the provisions of Sections 242 and 245 of the
Delaware General Corporation Law; and
3. The Certificate of Incorporation of the Corporation is hereby
amended and restated to read in its entirety as follows:
FIRST: The name of the corporation is Sirius Satellite Radio Inc. (the
"Corporation").
SECOND: The registered office and registered agent of the Corporation
is The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801.
THIRD: The purposes of the Corporation are to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: (1) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is 2,550,000,000 shares,
consisting of (1) 50,000,000 shares of preferred stock, par value $0.001 per
share ("Preferred Stock"), and (2) 2,500,000,000 shares of common stock, par
value $0.001 per share ("Common Stock").
(2) The Board of Directors is hereby expressly authorized to provide,
out of the unissued shares of Preferred Stock, for series of Preferred Stock
and, with respect to each such series, to fix the number of shares constituting
such series and the designation of such series, the voting powers (if any) of
the shares of such series, and the preferences and relative, participating,
optional or other special rights, if any, and any qualifications, limitations or
restrictions thereof, of the shares of such series, by resolution or resolutions
adopted by the Board of Directors providing for the issue of such series (a
"Preferred Stock Designation"). The powers, preferences and relative,
participating, optional and other special rights of each series of Preferred
Stock, and the qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding. The
number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then
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outstanding) by the affirmative vote of the holders of a majority of the voting
power of all of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, without a separate vote of the holders of the Preferred Stock, or
any series thereof, unless a vote of any such holders is required pursuant to
any Preferred Stock Designation.
(3) Each holder of Common Stock, as such, shall be entitled to one vote
for each share of Common Stock held of record by such holder on all matters on
which stockholders generally are entitled to vote. Except as otherwise required
by law or as otherwise provided in any Preferred Stock Designation, the holders
of the Common Stock shall exclusively possess all voting power.
FIFTH: The right to cumulate votes in the election of directors shall
not exist with respect to shares of stock of the Corporation.
SIXTH: No preemptive rights shall exist with respect to shares of stock
or securities convertible into shares of stock of the Corporation.
SEVENTH: The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors. The directors need not be
elected by ballot unless required by the bylaws of the Corporation.
EIGHTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the bylaws of the Corporation.
NINTH: 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 such
reservation.
TENTH: The Corporation is to have perpetual existence.
ELEVENTH: (1) A director of the Corporation shall not be held
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 an improper personal benefit. If the Delaware General
Corporation Law is amended after the effective date of this Article 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.
(2) The Corporation shall indemnify, in the manner and to the full
extent permitted by law, any person (or the estate of any person) who was or is
a party to, or is threatened to be made a party to, any threatened, pending or
complete action, suit or proceeding,
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whether or not by or in the right of the Corporation, and whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact that
such person is or was a director, officer or employee of the Corporation, or is
or was serving at the request of the Corporation as a director, officer or
employee of another corporation, limited liability company, partnership, joint
venture, trust or other enterprise. The Corporation may, to the full extent
permitted by law, purchase and maintain insurance on behalf of any such person
against any liability which may be asserted against him or her. To the full
extent permitted by law, the indemnification provided herein shall include
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, and, in the manner provided by law, any such expenses may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding. The indemnification provided herein shall not be deemed to limit the
right of the Corporation to indemnify any other person for any such expenses to
the full extent permitted by law, nor shall it be deemed exclusive of any other
rights to which any person seeking indemnification from the Corporation may be
entitled under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
Any repeal or modification of the foregoing paragraphs by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director, officer or employee of the Corporation existing at the
time of such repeal or modification.
Sirius Satellite Radio Inc. does hereby further certify that this
Amended and Restated Certificate of Incorporation was duly adopted by the Board
of Directors and by the stockholders in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, Sirius Satellite Radio Inc. has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
Joseph P. Clayton, its President and Chief Executive Officer, this 4th day of
March, 2003.
SIRIUS SATELLITE RADIO INC.
By: /s/ Joseph P. Clayton
--------------------------------
Joseph P. Clayton
President and Chief Executive Officer
ATTEST:
/s/ Patrick L. Donnelly
-----------------------------
Patrick L. Donnelly
Secretary