EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ABF ENERGY CORP.
ABF Energy Corp., a corporation organized and existing under the General
Corporation Law of the State of Delaware and originally incorporated in Delaware
on June 29, 1981 (the "Corporation") does hereby certify that: FIRST: The
Amended and Restated Certificate of Incorporation of the Corporation, in the
form attached hereto as Exhibit I, has been duly adopted in accordance with the
provisions of Section 242 and 245 of the General Corporation Law of the State of
Delaware, by the Board of Directors of the Corporation by written consent dated
as of June 8, 2000.
SECOND: The Amended and Restated Certificate of Incorporation of the
Corporation, in the form attached hereto as Exhibit I, has been duly approved by
the written consent of the stockholders of the Corporation in accordance with
the provisions of Section 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
THIRD: The Amended and Restated Certificate of Incorporation so adopted reads
in full as set forth in Exhibit I attached hereto and incorporated herein by
reference.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by
its duly authorized officer this 8th day of June, 2000.
ABF ENERGY CORP.
By:/s/ Marc A. Palazzo
-------------------------
Name: Marc A. Palazzo
Title: President
Exhibit I
ARTICLE I.
NAME
The name of this corporation (the "Corporation") shall be: CROWN JEWEL
RESOURCES CORP.
ARTICLE II.
REGISTERED OFFICE
Its registered office in the State of Delaware is to be
located at Corporation Trust Center, 1209 Orange Street, in the city of
Wilmington, county of New Castle. The registered agent at this address is The
Corporation Trust Company.
ARTICLE III.
PURPOSE
The Corporation is organized to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV.
CAPITAL STOCK
The total number of shares of stock of all classes which this
corporation is authorized to issue is two hundred twenty million (220,000,000),
consisting of two hundred million (200,000,000) shares of Common Stock, par
value $.00005 per share (the "Common Stock"), and twenty million (20,000,000)
shares of Preferred Stock, par value $.00005 per share (the "Preferred Stock").
The designations, powers, preferences, rights, qualifications, limitations or
restrictions relating to the Preferred Stock and the Common Stock shall be as
follows:
(a) Preferred Stock. The Preferred Stock may be issued from time
to time in one or more series. The Board of Directors of the
Corporation (the "Board") is hereby authorized, prior to the
issuance of any series of Preferred Stock, to fix by
resolution or resolutions providing for the issue of such
series the number of shares included in such series and the
voting powers, designations, preferences, and relative,
participating, optional and other special rights, and the
qualifications, limitations or restrictions thereof. Pursuant
to the foregoing general authority vested in the Board, but
not in limitation of the powers conferred on the Board thereby
and by Delaware Law, the Board is expressly authorized to
determine with respect to each series of Preferred Stock:
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(1) the designation or designations of such series and the
number of shares (which number from time to time may be
decreased by the Board, but not below the number of such
shares then outstanding, or may be increased by the Board,
but not in excess of the number of preferred shares then
authorized, unless otherwise provided in the resolution
creating such series) constituting such series;
(2) the rate or amount and times at which, and the preferences
and conditions under which, dividends shall be payable on
shares of such series, the status of such dividends as
cumulative or noncumulative, the date or dates from which
dividends, if cumulative, shall accumulate, and the status
of such shares as participating or nonparticipating after
the payments of dividends as to which such shares are
entitled to any preference;
(3) the rights and preferences, if any, of the holders of shares
of such series upon the liquidation, dissolution or winding
up of the affairs of, or upon any distribution of the assets
of, the Corporation, which amount may vary depending upon
whether such liquidation, dissolution or winding up is
voluntary or involuntary and, if voluntary, may vary at
different dates, and the status of the shares of such series
as participating or nonparticipating after the satisfaction
of any such rights and preferences;
(4) the full or limited voting rights, if any, to be provided
for shares of such series, in addition to the voting rights
provided by law;
(5) the times, terms and conditions, if any, upon which shares
of such series shall be subject to redemption, including the
amount the holders of shares of such series shall be
entitled to receive upon redemption (which amount may vary
under different conditions or at different redemption dates)
and the amount, terms, conditions and manner of operation of
any purchase, retirement or sinking fund to be provided for
the shares of such series;
(6) the rights, if any, of the Corporation or the holders of
shares of such series to convert such shares into, or to
exchange such shares for, shares of any other class or
classes or of any other series of the same class or other
securities of the Corporation, the prices or rates of
conversion or exchange, and adjustments thereto, and any
other terms and conditions applicable to such conversion or
exchange;
(7) the limitations, if any, applicable while such series is
outstanding on the payment of dividends or making of
distributions on, or the acquisition or redemption of,
Common Stock or any other class of shares ranking junior,
either as to dividends or upon liquidation, to the shares of
such series;
(8) the conditions or restrictions, if any, upon the issue of
any additional shares (including additional shares of such
series or any other series or of any other class) ranking on
a parity with or prior to the shares of such series either
as to dividends or upon liquidation; and
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(9) any other relative powers, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of
shares of such series;
in each case, so far as not inconsistent with the provisions of this
Certificate of Incorporation or the General Corporation Law of the State of
Delaware (the "DGCL"). All shares of Preferred Stock shall be identical and
of equal rank except with respect to the particulars that may be fixed by
the Board as provided above, and all shares of each series of Preferred
Stock shall be identical and of equal rank.
(b) Common Stock. Except as otherwise provided by the DGCL or by any
resolution adopted by the Board fixing the powers, preferences and rights,
the qualifications, limitations or restrictions of the Preferred Stock, all
rights pertaining to shares of the Corporation shall be vested exclusively
in the Common Stock. Each share of Common Stock shall have one vote upon
all matters to be voted on by the holders of the Common Stock. The Common
Stock shall share ratably, subject to the rights and preferences of the
Preferred Stock, in all assets of the Corporation in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, or upon any distribution of the assets of the
Corporation.
ARTICLE V.
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, repeal,
rescind, alter or amend in any respect the Bylaws of the Corporation. Election
of Directors need not be by written ballot.
ARTICLE VI.
ACTION BY STOCKHOLDERS
To the extent allowed by law, any action that is required to
be or may be taken at a meeting of the stockholders of the Corporation may be
taken without a meeting if written consent, setting forth the action, shall be
signed by persons who would be entitled to vote at a meeting those shares having
voting power to cast not less than the minimum number (or numbers, in the case
of voting by classes) of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote were present and voted.
Prompt notice shall be given of the taking of corporate action without a meeting
by less than unanimous written consent to those stockholders on the record date
whose shares were not represented on the written consent.
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ARTICLE VII.
INDEMNIFICATION
A Director of this 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 (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 DGCL, or (iv) for any
transaction from which the Director derived an improper personal benefit.
If the DGCL is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a Director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended.
Any repeal or modification of the foregoing provisions of this
Article VII by the stockholders of the Corporation shall not adversely affect
any right or protection of a Director of the Corporation existing at the time of
such repeal or modification.
The provisions of this Article VII shall not be deemed to
limit or preclude indemnification of a Director by the Corporation for any
liability of a Director which has not been eliminated by the provisions of this
Article VII.
