Exhibit 3.01
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CAPLAN CORPORATION
(name changed herein to)
MID-POWER SERVICE CORPORATION
This amended and restated certificate of incorporation for Caplan
Corporation has been duly adopted in accordance with the provisions of section
242 and 245 of the General Corporation Law of Delaware and shall become
effective on April 10, 2001. Caplan Corporation was originally incorporated on
July 5, 1983.
Article I
Name
The name of the corporation (the "Corporation") shall be:
Mid-Power Service Corporation
Article II
Duration
The Corporation shall continue in existence perpetually unless sooner
dissolved according to law.
Article III
Purposes
The purposes for which the Corporation is organized are to do all and
everything necessary, suitable, convenient, or proper for the accomplishment of
any of the purposes or the attainment of any one or more of the objects herein
enumerated or incidental to the powers herein named or which shall at any time
appear conducive or expedient for the protection or benefit of the Corporation,
with all the powers hereafter conferred by the laws under which this Corporation
is organized; and
To engage in any and all other lawful purposes, activities, and
pursuits, whether similar or dissimilar to the foregoing, for which corporations
may be organized under the General Corporation Law of Delaware and to exercise
all powers allowed or permitted thereunder.
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Article IV
Capitalization
The Corporation shall have authority to issue an aggregate of
110,000,000 shares, of which 10,000,000 shares shall be preferred stock, $0.001
par value (hereinafter the "Preferred Stock"), and 100,000,000 shares shall be
common stock, par value $0.001 (hereinafter the "Common Stock"). The powers,
preferences, and rights, and the qualifications, limitations, or restrictions
thereof, of the shares of stock of each class and series which the Corporation
shall be authorized to issue, is as follows:
(a) Preferred Stock. Shares of Preferred Stock may be issued
from time to time in one or more series as may from time to time be
determined by the board of directors. Each series shall be distinctly
designated. All shares of any one series of the Preferred Stock shall
be alike in every particular, except that there may be different dates
from which dividends thereon, if any, shall be cumulative, if made
cumulative. The powers, preferences, participating, optional, and other
rights of each such series and qualifications, limitations, or
restrictions thereof, if any, may differ from those of any and all
other series at any time outstanding. Except as hereinafter provided,
the board of directors of this Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of each particular series of Preferred Stock,
the designation, powers, preferences, and relative participating,
optional, and other rights and the qualifications, limitations, and
restrictions thereof, if any, of such series, including, without
limiting the generality of the foregoing, the following:
(i) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute each series,
which number may be increased (except as otherwise fixed by
the board of directors) or decreased (but not below the number
of shares thereof outstanding) from time to time by action of
the board of directors;
(ii) The rate and times at which, and the terms and
conditions on which, dividends, if any, on the shares of the
series shall be paid; the extent of preferences or relation,
if any, of such dividends to the dividends payable on any
other class or classes of stock of this Corporation or on any
series of Preferred Stock; and whether such dividends shall be
cumulative or noncumulative;
(iii) The right, if any, of the holders of the shares
of the same series to convert the same into, or exchange the
same for, any other class or classes of stock of this
Corporation and the terms and conditions of such conversion or
exchange;
(iv) Whether shares of the series shall be subject to
redemption and the redemption price or prices, including,
without limitation, a redemption price or prices payable in
shares of any other class or classes of stock of the
Corporation, cash, or other property and the time or times at
which, and the terms and conditions on which, shares of the
series may be redeemed;
(v) The rights, if any, of the holders of shares of
the series on voluntary or involuntary liquidation, merger,
consolidation, distribution, or sale of assets, dissolution,
or winding up of this Corporation;
(vi) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for shares of the
series; and
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(vii) The voting powers, if any, of the holders of
shares of the series which may, without limiting the
generality of the foregoing, include (A) the right to more or
less than one vote per share on any or all matters voted on by
the shareholders, and (B) the right to vote as a series by
itself or together with other series of Preferred Stock or
together with all series of Preferred Stock as a class, on
such matters, under such circumstances, and on such conditions
as the board of directors may fix, including, without
limitation, the right, voting as a series by itself or
together with other series of Preferred Stock or together with
all series of Preferred Stock as a class, to elect one or more
directors of this Corporation in the event there shall have
been a default in the payment of dividends on any one or more
series of Preferred Stock or under such other circumstances
and upon such conditions as the board of directors may
determine.
(b) Common Stock. The Common Stock shall have the following
powers, preferences, rights, qualifications, limitations, and
restrictions:
(i) After the requirements with respect to
preferential dividends of Preferred Stock, if any, shall have
been met and after this Corporation shall comply with all the
requirements, if any, with respect to the setting aside of
funds as sinking funds or redemption or purchase accounts and
subject further to any other conditions that may be required
by the General Corporation Law of Delaware, then, but not
otherwise, the holders of Common Stock shall be entitled to
receive such dividends, if any, as may be declared from time
to time by the board of directors without distinction to
series;
(ii) After distribution in full of any preferential
amount to be distributed to the holders of Preferred Stock, if
any, in the event of a voluntary or involuntary liquidation,
distribution or sale of assets, dissolution, or winding up of
this Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind
available for distribution to stockholders, ratably in
proportion to the number of shares of Common Stock held by
each without distinction as to series; and
(iii) Except as may otherwise be required by law or
this Certificate of Incorporation, in all matters as to which
the vote or consent of stockholders of the Corporation shall
be required or be taken, including, any vote to amend this
Certificate of Incorporation, to increase or decrease the par
value of any class of stock, effect a stock split or
combination of shares, or alter or change the powers,
preferences, or special rights of any class or series of
stock, the holders of the Common Stock shall have one vote per
share of Common Stock on all such matters and shall not have
the right to cumulate their votes for any purpose.
(c) Reverse Stock Split. The shares of common stock of the
Corporation issued and outstanding immediately preceding the Effective
Date shall be reverse-split, or consolidated, without any change in the
authorized number of shares of common stock or the par value thereof,
as follows:
(i) Each two shares of common stock issued and
outstanding immediately prior to the Effective Date shall be
converted into the right to receive one share of
post-reverse-split common stock ("New Common Stock").
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(ii) No fractional shares of New Common Stock shall
be issued in connection with the foregoing, and in lieu
thereof, the Corporation shall pay cash for such fractional
shares as provided in Article II(c)(v) herein.
(iii) As soon as reasonably practicable after the
Effective Date, the Corporation shall cause its registrar and
transfer agent, acting as exchange agent (the "Exchange
Agent") to mail to each holder of record of shares of common
stock immediately prior to the Effective Date (the
"Pre-Reverse-Split Common Stock"), a letter of transmittal
(which shall specify that delivery shall be effected, and risk
of loss and title to the Pre-Reverse-Split Common Stocks shall
pass, only upon delivery of certificate representing such
Pre-Reverse-Split Common Stock to the Exchange Agent, which
shall be in such form and have such other provisions as the
Corporation may reasonably specify, and which shall specify
the fee payable in order to effectuate such exchange) and
instructions for use in effecting the surrender of
certificates representing Pre-Reverse-Split Common Stock in
exchange for certificates representing shares of New Common
Stock issuable pursuant hereto. Upon surrender of a
certificate representing Pre-Reverse-Split Common Stock for
cancellation to the Exchange Agent, together with such duly
executed letter of transmittal and the payment of the
prescribed fee, the holder of such certificate representing
Pre-Reverse-Split Common Stock shall be entitled to receive in
exchange therefor a certificate representing that number of
whole shares of New Common Stock which such holder has the
right to receive in exchange for the Pre-Reverse-Split Common
Stock surrendered pursuant to the provisions hereof (after
taking into account all Pre-Reverse-Split Common Stock then
held by such holder), and the Pre-Reverse-Split Common Stock
so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of Pre-Reverse-Split Common Stock that
is not registered in the transfer records of the Corporation,
a certificate representing the proper number of shares of New
Common Stock may be issued to a transferee if the certificate
representing such Pre-Reverse-Split Common Stock is presented
to the Exchange Agent, accompanied by all documents required
to evidence and effect such transfer and by evidence that any
applicable stock transfer taxes and other transfer fees have
been paid. Holders of certificates representing
Pre-Reverse-Split Common Stock shall not be required to
convert their certificates into certificates representing New
Common Stock. Until surrendered as contemplated hereby, each
certificate representing Pre-Reverse-Split Common Stock shall
be deemed at any time after the Effective Date to represent
only the New Common Stock into which such certificate
representing Pre-Reverse-Split Common Stock is convertible as
provided herein.
(iv) After the Effective Date, there shall be no
further registration of transfers of certificates representing
Pre-Reverse-Split Common Stock. If, after the Effective Date,
certificates representing shares of Pre-Reverse-Split Common
Stock are presented to the Corporation or the Exchange Agent
for registration of transfer, such certificates shall be
canceled and exchanged for certificates representing New
Common Stock in accordance with the procedures set forth
herein.
(v) No certificates or scrip evidencing fractional
shares of New Common Stock shall be issued upon the surrender
for exchange of Pre-Reverse-Split Common Stock certificates,
and such fractional share interests shall not entitle the
owner thereof to any rights as a stockholder of the
Corporation. In lieu of any such fractional interests, each
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holder of a certificates representing Pre-Reverse-Split Common
Stock shall, upon surrender of such certificate for exchange
pursuant to this Article II(c), be paid an amount in cash
(without interest), rounded to the nearest cent, determined by
multiplying the last sale price of the Common Stock on the
OTCBB prior to the Effective Date by the fractional share of
New Common Stock to which such holder would otherwise be
entitled.
(d) Other Provisions
(i) The board of directors of the Corporation shall
have authority to authorize the issuance, from time to time
without any vote or other action by the stockholders, of any
or all shares of the Corporation of any class at any time
authorized, and any securities convertible into or
exchangeable for such shares, in each case to such persons and
for such consideration and on such terms as the board of
directors from time to time in its discretion lawfully may
determine; provided, however, that the consideration for the
issuance of shares of stock of the Corporation having par
value shall not be less than such par value. Shares so issued,
for which the full consideration determined by the board of
directors has been paid to the Corporation, shall be fully
paid stock, and the holders of such stock shall not be liable
for any further call or assessment thereon.
(ii) Unless otherwise provided in the resolution of
the board of directors providing for the issue of any series
of Preferred Stock, no holder of shares of any class of the
Corporation or of any security of obligation convertible into,
or of any warrant, option, or right to purchase, subscribe
for, or otherwise acquire, shares of any class of the
Corporation, whether now or hereafter authorized, shall, as
such holder, have any preemptive right whatsoever to purchase,
subscribe for, or otherwise acquire shares of any class of the
Corporation, whether now or hereafter authorized.
(iii) Anything herein contained to the contrary
notwithstanding, any and all right, title, interest, and claim
in and to any dividends declared or other distributions made
by the Corporation, whether in cash, stock, or otherwise,
which are unclaimed by the stockholder entitled thereto for a
period of six years after the close of business on the payment
date, shall be and be deemed to be extinguished and abandoned;
and such unclaimed dividends or other distributions in the
possession of the Corporation, its transfer agents, or other
agents or depositories, shall at such time become the absolute
property of the Corporation, free and clear of any and all
claims of any person whatsoever.
Article V
Limitation on Liability
A director of the Corporation shall have no personal liability to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (i) for any breach of a 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 General Corporation Law of Delaware as it may
from time to time be amended or any successor provision thereto, or (iv) for any
transaction from which a director derived an improper personal benefit.
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Article VI
Business Combinations with Interested Stockholders
The Corporation elects not to be governed by the provisions of section
203 of the General Corporation Law of Delaware regarding business combinations
with interested shareholders.
Article VII
Registered Office and Registered Agent
The name and address of the Corporation's registered agent in the state
of Delaware is The Corporation Trust Company, 1209 Orange Street, in the city of
Wilmington, county of New Castle, Delaware. Either the registered office or the
registered agent may be changed in the manner provided by law.
Article VIII
Amendment
The Corporation reserves the right to amend, alter, change, or repeal
all or any portion of the provisions contained in its Certificate of
Incorporation from time to time in accordance with the laws of the state of
Delaware, and all rights conferred on stockholders herein are granted subject to
this reservation.
Article IX
Adoption and Amendment of Bylaws
The bylaws of the Corporation shall be adopted by the board of
directors. The power to alter, amend, or repeal the bylaws or adopt new bylaws
shall be vested in the board of directors, but the stockholders of the
Corporation may also alter, amend, or repeal the bylaws or adopt new bylaws. The
bylaws may contain any provisions for the regulation or management of the
affairs of the Corporation not inconsistent with the laws of the state of
Delaware now or hereafter existing.
Article X
Directors
The governing board of the Corporation shall be known as the board of
directors. The number of directors comprising the board of directors shall be
fixed and may be increased or decreased from time to time in the manner provided
in the bylaws of the Corporation, except that at no time shall there be less
than one nor more than nine directors.
The undersigned, being the duly authorized officer of the Corporation
makes this certificate, hereby declaring and certifying that this is his act and
deed and that the facts herein stated are true, and accordingly has hereunto set
his hand this 4th day of April 2001.
/s/ Kenneth M. Emter
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Kenneth M. Emter, Secretary
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