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EXHIBIT 3.01
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELA WARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "PSI FOOD SERVICES CORP.", CHANGING ITS NAME FROM "PSI FOOD SERVICES CORP.,
TO "MFC DEVELOP MENT CORP.", FILED IN THIS OFFICE ON THE NINTH DAY OF AUGUST,
A.D. 2000, AT 12 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
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Edward J. Freel, Secretary of State
AUTHENTICATION: 0615021
DATE: 08-11-00
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
PSI FOOD SERVICES CORP.
PSI FOOD SERVICES CORP., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation at a meeting duly
held on August 8, 2000 adopted resolutions proposing and declaring advisable the
following amendments to, and restatement of, the Certificate of Incorporation of
said corporation:
RESOLVED, that the Certificate of Incorporation of PSI FOOD SERVICES CORP.
be amended and restated in its entirety, so that, as amended, said Certificate
of Incorporation shall be and read as follows:
ARTICLE I
The name of the corporation (hereinafter referred to as the "Corporation")
is MFC DEVELOPMENT CORP.
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ARTICLE II
The registered office of the Corporation is located in the County of New
Castle at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, State of Delaware. The name of the Corporation's registered agent at
said address is The Corporation Trust Company.
ARTICLE III
The nature of the business of the Corporation, and the objects and purposes
proposed to be transacted, promoted and carried on by it, shall be to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
ARTICLE IV
(a) The aggregate number of shares of stock which the Corporation shall
have the authority to issue is 42,000,000, of which 40,000,000 are shares of
Common Stock, with a par value of $.001 per share, and 2,000,000 are shares of
Preferred Stock, with a par value of $.001 per share.
(b) The Board of Directors hereby is vested with the authority to provide
for the issuance of the Preferred Stock, at any time and from time to time, in
one or more series, each of such series to have such voting powers,
designations, preferences and relative participating, optional, conversion and
other rights, and such qualifications, limitations or restrictions thereon as
are expressly provided in the resolution or resolutions duly adopted by the
Board of Directors providing for the issuance of such shares or series thereof.
The authority which hereby is vested
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in the Board of Directors shall include, but not be limited to, the authority to
provide for the following matters relating to each series of the Preferred
Stock:
(i) The designation of any series.
(ii) The number of shares initially constituting any such series.
(iii) The increase, and the decrease, to a number not less than the
number of the outstanding shares of any such series, the number of shares
constituting such series theretofore fixed.
(iv) The rate or rates and the times at which dividends on the shares
of Preferred Stock or any series thereof shall be paid, and whether or not such
dividends shall be cumulative, and if such dividends shall be cumulative, the
date or dates from and after which they shall accumulate.
(v) Whether or not the shares of Preferred Stock or series thereof
shall be redeemable, and, if such shares shall be redeemable, the terms and
conditions of such redemption, including but not limited to the date or dates
upon or after which such shares shall be redeemable and the amount per share
which shall be payable upon such redemption, which amount may vary under
different conditions and at different redemption dates.
(vi) The amount payable on the shares of Preferred Stock or series
thereof in the event of the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation; provided, however, that the holders of shares
ranking senior to other shares shall be entitled to be paid, or to have set
apart for payment, not less than the liquidation value of such shares before the
holders of shares of Common Stock or the holders of any other series of
Preferred Stock ranking junior to such shares.
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(vii) Whether or not the shares of Preferred Stock or series thereof
shall have voting rights, in addition to the voting rights provided by law, and,
if such shares shall have such voting rights, the terms and conditions thereof,
including but not limited to the right of the holders of such shares to vote as
a separate class either alone or with the holders of shares of one or more other
class or series of Preferred Stock and the right to have more than one vote per
share.
(viii) Whether or not a sinking fund shall be provided for the
redemption of the shares of Preferred Stock or series thereof, and, if such a
sinking fund shall be provided, the terms and conditions thereof.
(ix) Whether or not a purchase fund shall be provided for the shares of
Preferred Stock or series thereof, and, if such a purchase fund shall be
provided, the terms and conditions thereof.
(x) Whether or not the shares of Preferred Stock or series thereof
shall have conversion privileges, and, if such shares shall have conversion
privileges, the terms and conditions of conversion, including but not limited to
any provisions for the adjustment of the conversion rate or the conversion
price.
(xi) Any other relative rights, preferences, qualifications,
limitations and restrictions.
ARTICLE V
The name and mailing address of the incorporators of the Corporation
are:
NAME MAILING ADDRESS
M.A. Brzoska Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
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K.A. Widdoes Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
L.J. Vitalo Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
ARTICLE VI
No action required or permitted to be taken at any annual or special
meeting of stockholders of the Corporation may be taken without a meeting,
except upon the written consent of the holders of 100% of the shares of capital
stock of the Corporation entitled to vote on such action, unless such action has
been authorized by the Board of Directors, in which event such action may be
taken by the written consent of the holders of not less than a majority of the
shares of capital stock entitled to vote on such action.
ARTICLE VII
The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders.
(a) The number of directors of the Corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the By-Laws.
Election of directors need not be by ballot unless the By-Laws so provide.
(b) The Board of Directors shall have the power without the assent or
vote of the stockholders:
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(i) To make, alter, amend, change, add to or repeal the By-Laws
of the Corporation; to fix and vary the amount to be reserved for any proper
purpose; to authorize and cause to be executed mortgages and liens upon all or
any part of the property of the Corporation; to determine the use and
disposition of any surplus or net profits; and to fix the time for the
declaration and payment of dividends.
(ii) To determine from time to time whether, and at what times
and places, and under what conditions the accounts and books of the Corporation
(other than the stock ledger) or any of them, shall be open to the inspection of
the stockholders.
(c) The Board of Directors in their discretion may submit any contract
or act for approval or ratification at any annual meeting of the stockholders,
at any meeting of the stockholders called for the purpose of considering any
such act or contract, or through a written consent in lieu of a meeting in
accordance with the requirements of the General Corporation Law of Delaware as
amended from time to time, and any contract or act that shall be so approved or
be so ratified by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting (or by
written consent whether received directly or through a proxy) and entitled to
vote thereon (provided that a lawful quorum of stockholders be there represented
in person or by proxy) shall be as valid and as binding upon the Corporation and
upon all the stockholders as though it had been approved, ratified, or consented
to by every stockholder of the Corporation, whether or not the contract or act
would otherwise be open to legal attack because of directors' interest, or for
any other reason.
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(d) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and to do all such acts and things as may be exercised or done
by the Corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, this Certificate of incorporation, and to any By-Laws from time to
time made by the stockholders; provided, however, that no By-Laws so made shall
invalidate any prior act of the directors which would have been valid if such
By-Law had not been made.
ARTICLE VIII
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 receiver 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 of 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 the
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
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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 IX
The Board of Directors or the stockholders may adopt, amend or repeal
the By-Laws in such manner as may be by law or therein provided, but any By-Laws
made by the Board of Directors is subject to amendment or repeal by the
stockholders of the Corporation.
ARTICLE X
No director of the Corporation shall be 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, it being the intention of the foregoing provisions to
eliminate personal the liability of the Corporation's directors to the
Corporation or its stockholders to the fullest extent permitted by Section
102(b)(7) of the Delaware General Corporation Law, as amended from time to time.
ARTICLE XI
(a) 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 investigative (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, employee or agent of
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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 Delaware General 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 than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including without
limitation, 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 such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure 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 of
the Corporation. The right to indemnification conferred in this Article 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 Delaware General 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 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) If a claim under paragraph (a) of this Article 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 Delaware General 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 stockholders) 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 Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or
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its stockholders) 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.
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Article 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, By-Law, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) 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 Delaware General Corporation Law.
ARTICLE XIII
The Corporation reserves the right to amend, alter, change or repeal
any provision of this Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power.
SECOND: That in lieu of a meeting and vote of stockholders the written consents
of shareholders of the corporation owning a majority of the outstanding shares
of common stock of the corporation to the foregoing amendment and restatement of
the Certificate of Incorporation
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and the resolutions herein were delivered to the Secretary of the corporation in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment and restatement of the Certificate of
Incorporation of PSI FOOD SERVICES CORP. was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said PSI FOOD SERVICES CORP. has caused this
certificate to be signed by Lester J. Tanner, its President, this 8th day of
August, 2000.
PSI FOOD SERVICES CORP.
By /s/ Lester J. Tanner
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Lester J. Tanner, President
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