Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
DATA CONVERSION LABORATORY, INC.
(Pursuant to Section 807 of the Business Corporation Law)
FIRST: The name of the corporation is Data Conversion Laboratory, Inc.
The name under which the corporation was formed is M.J. Gross & Company, Inc.
SECOND: The certificate of incorporation of the corporation was filed
by the Department of State on April 30, 1984. A Certificate of Amendment and
Restatement was filed on December 28, 2000 and a Certificate of Amendment was
filed on May _____, 2002.
THIRD: The text of the certificate of incorporation of the corporation
is hereby restated without further amendment or change to read as follows:
"FIRST: The name of the corporation is Data Conversion
Laboratory, Inc. (the "Corporation").
SECOND: The Corporation is formed for the following purpose or
purposes: A. To engage in any lawful act or activity for which
corporations may be organized under the Business Corporation Law,
provided that the Corporation is not formed to engage in any act or
activity requiring the consent or approval of any state official,
department, board, agency or other body without such consent or
approval first being obtained.
B. To have, in furtherance of the corporate purposes, all of
the powers conferred upon corporations organized under the Business
Corporation Law subject to any limitations thereof contained in this
certificate of incorporation or in the laws of the State of New York.
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THIRD: A. The aggregate number of shares which the Corporation
shall have authority to issue is 30,000,000, of which 25,000,000 shall
be common shares; par value $0.01 per share (the "Common Shares"), and
5,000,000 shall be preferred shares, par value $0.01 per share (the
"Preferred Shares").
B. All Common Shares shall be of one class and shall be
identical with each other in every respect. All authorized and
outstanding Common Shares shall be fully paid and nonassessable. The
holders of the Common Shares shall be entitled to vote on all matters
upon which the shareholders have the right to vote and shall be
entitled to one vote for each Common Share. Dividends may be declared
and paid on the Common Shares from funds lawfully available therefor as
and when declared by the Board of Directors. Upon dissolution or
liquidation of the Corporation, whether voluntary or involuntary,
holders of Common Shares will be entitled to receive all assets of the
Corporation available for distribution to its shareholders, subject to
any preferential rights of any then outstanding Preferred Shares. The
Common Shares are subject to all rights, preferences, designations,
powers and priorities of any then outstanding Preferred Shares.
C. The Board of Directors of the Corporation, in the exercise
of its discretion, is authorized to issue Preferred Shares in one or
more series, to determine the powers, preferences, rights,
qualifications, limitations or restrictions granted to or imposed on
any wholly unissued series of undesignated Preferred Shares, and to fix
the number of shares constituting any series and the designation of
such series without any further vote or action by the shareholders."
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FOURTH: The offices of the Corporation in the State of New
York shall be located in the County of Queens, or at such other
location as shall be determined by the Board of Directors.
FIFTH: The Secretary of State is designated as agent of the
Corporation upon whom process against it may be served. The post office
address to which the Secretary of State shall mail a copy of any
process against the Corporation served on him is:
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue New York, New York
10022.
SIXTH: Any action required or permitted to be taken at a
meeting of the shareholders of the Corporation may be taken without a
meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed
by the holder or holders of shares having not less than the minimum
number of votes that would be necessary to take such action at a
meeting at which the holders of all shares entitled to vote on the
action were present and voted. Prompt notice of the taking of any
action by shareholders without a meeting by less than unanimous written
consent shall be given to those shareholders who did not consent in
writing to the action.
SEVENTH: A director of the Corporation shall not be personally
liable to the Corporation or its shareholders for damages for any
breach of duty in such capacity, except for the liability of any
director if a judgment or other final adjudication adverse to him
establishes that his acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that he
personally gained in fact a financial profit or other advantage to
which he was not legally entitled or that his acts violated Section 719
of the New York Business Corporation Law.
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EIGHTH: A. Right to Indemnification. Each person who was or is
made a party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal, administrative
or investigation (hereinafter a `proceeding'), by reason of the fact
that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer, of the Corporation or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding
is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Business
Corporation Law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification
rights that said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and any appeal therein
and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall incur to the
benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in paragraph B hereof, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the Board
of Directors. The right to indemnification conferred in this Article
EIGHTH shall be a contract right and shall include the right to be paid
by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that
if the Business Corporation Law requires, the payment of such expenses
incurred by a director or officer (in his or her capacity as a director
or officer and not in any other capacity in which service was or is
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rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the
final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Article EIGHTH or otherwise. The Corporation
may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect
as the foregoing indemnification of directors and officers.
B. Right of Claimant to Bring Suit. If a claim under
paragraph A of this Article EIGHTH is not paid in full by the
Corporation within thirty days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Business
Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or its shareholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
Business Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) that the claimant has not met such
applicable standard or conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable
standard of conduct.
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C. Non-Exclusivity of Rights. The right to
indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this
Article EIGHTH shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, bylaws, agreement, vote of
shareholders or disinterested directors or otherwise.
D. 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, liability or loss,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Business
Corporation Law.
NINTH: The business and affairs of the Corporation shall be
managed by, or under the direction of, a Board of Directors, the exact
number of directors to be determined from time to time as set forth in
the Bylaws. A director or the entire Board of Directors may be removed
only for cause by the affirmative vote of holders of at least a
majority of the authorized and issued shares of the capital stock of
the Corporation.
TENTH: No holder of any shares of any class of capital stock
of the Corporation shall be entitled as of right to subscribe for,
purchase, or otherwise acquire any shares of any class of capital stock
of the Corporation which the Corporation proposes to issue or sell any
rights or options which the Corporation proposes to grant for the
purchase of any shares, bonds, securities, or obligations of the
Corporation which are convertible into or exchangeable for, or which
carry any rights to subscribe for, purchase, or otherwise acquire
shares of any class of capital stock of the Corporation; and any and
all of such shares, bonds, securities or obligations of the
Corporation, whether now or hereafter authorized or created, may be
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issued, or may be reissued or transferred if the same have been
reacquired and have treasury status, and any and all of such rights and
options may be granted by the Board of Directors to such persons,
firms, corporations and associations, and for such lawful
consideration, and on such terms, as the Board of Directors in its
discretion may determine, without first offering the same, or any
thereof, to any said holder. Without limiting the generality of the
foregoing stated denial of any and all preemptive rights, no holder of
shares of any class of capital stock of the Corporation shall have any
preemptive rights in respect of the matters, proceedings, or
transaction specified in subparagraphs (1) to (6), inclusive, of
paragraph (e) of Section 622 of the Business Corporation Law.
ELEVENTH: Subject always to the Bylaws adopted by the
shareholders, the Board of Directors may amend or repeal any Bylaw or
adopt any new Bylaw; but any Bylaw adopted by the Board of Directors
may be amended or repealed by the shareholders at any annual meeting or
at any special meeting, provided notice of the proposed amendment or
repeal be included in the notice of any such meeting.
TWELFTH: The duration of the Corporation is perpetual."
FOURTH: The restatement of the certificate of incorporation herein
certified was authorized by the Sole Director of the corporation.
IN WITNESS WHEREOF, we have subscribed this document on the date set
forth below and do hereby affirm, under the penalties of perjury, that the
statements contained therein have been examined by us and are true and correct.
Executed on this 24th day of May, 2002.
/s/ Mark Gross
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Mark Gross, Sole Director
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