Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE
OF
INCORPORATION
OF
DISCAS, INC.
The undersigned, being the president of Discas, Inc. (The
"Corporation") hereby certifies as follows:
1. The Certificate of Incorporation of the Corporation as originally
filed with the Secretary of State on the 11th day of December, 1985 is amended
and restated pursuant to Sections 242 and 245 of the Delaware General
Corporation Law to read as follows:
FIRST: The name of the Corporation is Discas, Inc.
SECOND: The Certificate of Incorporation was originally filed with
the Secretary of State on the 11th day of December, 1985. The address of the
Corporation's registered office in the State of Delaware is 410 South State
Street, Dover, County of Kent, Delaware. The registered agent in charge thereof
is Corporate Filing Service, Inc.
THIRD: 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.
FOURTH: The total number of shares that this Corporation shall have
authority to issue is (i) 20,000,000 shares of Common Stock, $.0001 par value
per share ("Common Stock"), and (ii) 5,000,000 shares of Preferred Stock, $.01
par value per share ("Preferred Stock").
There shall be no preemptive rights with respect to the
Corporation's shares of stock. The following is a further statement of the
designations and the powers, preferences and rights, and the relative
participating, optional or other special rights, and the qualifications,
limitations and restrictions granted to or imposed upon the respective classes
of shares of capital stock of the Corporation or the holders thereof.
COMMON STOCK
1. General. The voting, dividend and liquidation rights of the holders
of the Common Stock are subject to and qualified by the
rights of the holders of the Preferred Stock of any series as maybe designated
by the Board of Directors upon any issuance of the Preferred Stock of any
series.
2. Voting. The holders of Common Stock are entitled to one vote for
each share held at all meetings of stockholders (and written actions in lieu of
meetings). There shall be no cumulative voting.
3. Dividends. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights or restrictions of
any then outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its stockholders after payment of creditors and subject to any preferential
rights of any then outstanding Preferred Stock.
PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided herein or by law. Different series
of Preferred Stock shall not be construed to constitute different classes of
shares for the purposes of voting by classes unless expressly provided for
herein or by law.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issuance of the shares thereof, to determine and fix such
voting powers, full or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be stated and expressed in such
resolutions, all to the full extent now or hereafter permitted by the General
Corporation Law of the State of Delaware. Without
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limiting the generality of the foregoing, the resolutions providing for
issuance of any series of Preferred Stock may provide that such series shall be
superior or rank equally or be junior to the Preferred Stock of any other
series to the extent permitted by law.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The number of directors which shall constitute the entire
Board of Directors shall be as set forth in the by-laws of the Corporation. The
board of directors is expressly authorized to adopt, amend or repeal the
by-laws of the Corporation.
SEVENTH: 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 said application has been made, be
binding on all the creditors or class of creditors, and/or on all of the
stockholders or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
EIGHTH: 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 upon
stockholders herein are granted subject to this reservation.
NINTH: No director of the Corporation shall be 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
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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 General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit.
TENTH: The Corporation shall have authority to indemnify its
officers, directors, agents and such other parties to the full extent permitted
by Delaware law.
2. The foregoing Amended and Restated Certificate of Incorporation of
the Corporation have been duly approved and adopted by the board of directors
and the shareholders of the Corporation in accordance with Section 242 of the
General Corporation Law.
IN WITNESS WHEREOF, I hereunto set my hand this 1st day of February,
1997 and I affirm that the foregoing certificate is my act and deed and that
the facts stated therein as true.
/s/ Patrick A. DePaolo
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Patrick A. DePaolo, President
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