RESTATED CERTIFICATE OF INCORPORATION
OF
CHESAPEAKE UTILITIES CORPORATION
Chesapeake Utilities Corporation, a corporation
organized and existing under the laws of the State of
Delaware, hereby certifies as follows:
1. The name of the Corporation is CHESAPEAKE
UTILITIES CORPORATION. The date of filing the Corporation's
original Certificate of Incorporation with the Secretary of
State of the State of Delaware was November 12, 1947.
2. This restated Certificate of Incorporation
restates and integrates and further amends the Certificate of
Incorporation of this Corporation.
3. The text of the Certificate of Incorporation of
the Corporation as amended or supplemented heretofore and
herewith is hereby restated to read as herein set forth in
full:
FIRST: The name of the Corporation is CHESAPEAKE
UTILITIES CORPORATION.
SECOND: The address of its registered office in
the State of Delaware is 1013 Centre Road, in the City of
Wilmington, County of New Castle, 19805. The name of its
registered agent at such address is Corporation Services
Company.
THIRD: The nature of the business, or objects or
purposes to be transacted, promoted or carried on are:
To produce, transmit, distribute and sell natural
and manufactured gas; to construct, maintain and operate works
for the supply and distribution of electricity for electric
lights, heat or power; to supply and distribute water; to
transport and store oil; and to produce and distribute steam,
heat and power; in each case to or for all persons and places,
public and private, where it may be desired, and to carry on
all activities and businesses that are usually or may be
conveniently carried on by a company in such business or that
are incidental to such business; and
To supply in any manner light, heat, steam, energy
or power to the public; to explore, impound, develop, acquire
and transport natural resources incident to the above-stated
businesses; and to supply, maintain and service equipment and
systems incident to the above-stated businesses; and
In general, to engage in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of the State of Delaware.
The objects and purposes specified in the foregoing
clauses shall, except where otherwise expressed, not be
limited or restricted by reference to each other but shall be
regarded as separate, independent businesses and purposes.
FOURTH: The total number of shares of all classes
of stock which the Corporation shall have authority to issue
is Fourteen Million (14,000,000) shares, divided into Twelve
Million (12,000,000) shares of Common Stock of the par value
of forty-eight and two-thirds cents ($.48 2/3) per share,
amounting in the aggregate to Five Million Eight Hundred Forty
Thousand Dollars ($5,840.000.00), and Two Million shares of
Preferred Stock, in series, of the par value $0.01 per share,
amounting in the aggregate to Twenty Thousand Dollars
($20,000).
The express terms and provisions of the shares
classified and designated as the Preferred Shares, par value
$0.01, are as follows:
(1) Authority to Issue in Series. The Board
of Directors is authorized, subject to limitations prescribed
by the General Corporation Law of the State of Delaware, to
provide for the issuance of the Preferred Shares in series,
and by filing a certificate pursuant to the General
Corporation Law of the State of Delaware, to establish from
time to time the number of shares to be included in such
series, and to fix the designations, powers, preferences and
relative, participating or other special rights of the shares
of each such series, and the qualifications, limitations or
restrictions thereof;
(2) Terms. The authority of the Board of
Directors with respect to each series of Preferred Shares
shall include, but not be limited to, determination of the
following:
(a) the number of shares constituting
that series and the distinctive designation of that series and
the stated value thereof, if any, if different from the par
value thereof;
(b) The dividends, if any, payable on the
shares of that series, whether dividends shall be cumulative,
and, if so, from which date or dates, and the preference, if
any, or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or
any other series of any class;
(c) Whether that series shall have voting
rights or power, in addition to the voting rights provided by
law, and, if so, the terms of such voting rights;
(d) Whether or not that series shall have
conversion or exchange privileges, and, if so, the terms and
conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board
of Directors shall determine;
(e) Whether or not the shares of that
series shall be redeemable, and, if so, the terms and
conditions of such redemption, including the date upon or date
after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(f) Whether that series shall have a
sinking fund for the redemption or purchase of shares of that
series, and, if so, the terms and amount of such sinking fund;
(g) The rights of the shares of that
series in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, and the relative
rights of priority, if any, of payment of the shares of that
series;
(h) The limitations and restrictions, if
any, to be effective while any shares of such series are
outstanding upon the payment of dividends or the making of
other distributions on, and upon the purchase, redemption or
other acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or any other series of this
class;
(i) The conditions or restrictions, if
any, upon the creation of indebtedness of the Corporation or
upon the issue of any additional stock, including additional
shares of such series or of any other series of this class or
of any other class; and
(j) Any other voting powers,
designations, preferences, and relative, participating
optional or other special rights, or qualifications,
limitations or restrictions thereof, of the shares of such
series;
in each case, to the full extent now or hereafter permitted by
the laws of the State of Delaware.
FIFTH: In furtherance, and not in limitation of
the powers conferred by statute, the Board of Directors is
expressly authorized to make, alter, amend and rescind the
Bylaws of this Corporation subject to the right of the
stockholders to alter, amend or rescind the same.
SIXTH: 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 consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which 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 this Corporation, as
the case may be, and also on this Corporation.
SEVENTH: Meetings of stockholders may be held
without the State of Delaware, if the Bylaws so provide. The
books of the Corporation may be kept (subject to any provision
contained in the statutes) outside of the State of Delaware at
such place or places as may be from time to time designated by
the Board of Directors or in the Bylaws of the Corporation.
EIGHTH: The number of directors which shall
constitute the whole Board of Directors of the Corporation
shall be nine (9). The Board shall be divided into three
classes, Class I, Class II and Class III. The number of
directors in each class shall be the whole number contained in
the quotient arrived at by dividing the number of directors by
three and if a fraction is also contained in such quotient,
and if such fraction is one-third (1/3) the extra director
shall be a member of Class III and if the fraction is
two-thirds (2/3) one of the directors shall be a member of
Class III and the other shall be a member of Class II. Each
director shall serve for a term ending on the third annual
meeting following the annual meeting at which such director
was elected. The foregoing notwithstanding, each director
shall serve until such director's successor shall have been
duly elected and qualified, unless such director shall resign,
become disqualified, disabled or shall otherwise be removed.
At each annual election, the directors chosen to
succeed those whose terms then expire shall be identified as
being of the same class as the directors they succeed. If for
any reason the number of directors in the various classes
shall not conform with the formula set forth in the preceding
paragraph, the Board of Directors may redesignate any director
into a different class in order that the balance of directors
in such classes shall conform thereto.
The Board of Directors, at its first meeting after
each annual meeting of stockholders, shall choose such
officers with such titles and duties as shall be stated in the
Bylaws of the Corporation, who shall hold office until their
successors are chosen and qualify in their stead.
Five (5) directors shall constitute a quorum for the
transaction of business, and if at any meeting of the Board of
Directors there shall be less than a quorum of five (5), a
majority of those present may adjourn the meeting from time to
time. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Directors
unless a greater number be required by law or by the
Certificate of Incorporation.
No director of the Corporation shall be removed from
office as a director by vote or other action of stockholders
or otherwise unless the director to be removed is physically
or mentally disabled or incapacitated to such an extent that
such director is unable to perform the duties of a director,
or unless the director has been convicted of a felony by a
court of competent jurisdiction and such conviction is no
longer subject to direct appeal, or unless the director to be
removed has been adjudged to be liable for misconduct in the
performance of such director's duty to the Corporation by a
court of competent jurisdiction and such adjudication is no
longer subject to direct appeal.
NINTH: In the event that it is proposed that this
Corporation enter into a merger or consolidation with any
other corporation and such other corporation or its affiliates
singly or in the aggregate own or control directly or
indirectly five percent (5%) or more of the outstanding shares
of the Common Stock of this Corporation, or that this
Corporation sell substantially all of its assets or business,
the affirmative vote of the holders of not less than
seventy-five percent (75%) of the total voting power of all
outstanding shares of stock of this Corporation shall be
required for the approval of any such proposal; provided,
however, that the foregoing shall not apply to any such
merger, consolidation or sale of assets or business which was
approved by resolution of the Board of Directors of this
Corporation prior to the acquisition of the ownership or
control of five percent (5%) of the outstanding shares of this
Corporation by such other corporation or its affiliates, nor
shall it apply to any such merger, consolidation or sale of
assets or business between this Corporation and another
corporation fifty percent (50%) or more of the stock of which
is owned by this Corporation. For the purposes hereof an
"affiliate" is any person (including a corporation,
partnership, trust, estate or individual) who directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person
specified; and "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of
management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
TENTH: No action required to be taken or which
may be taken at any annual or special meeting of shareholders
of the Corporation may be taken without a meeting and the
power of stockholders to consent in writing to the taking of
any action is specifically denied.
ELEVENTH: A director of the 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 Delaware General
Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefit. If the
Delaware General Corporation Law is amended after approval by
the stockholders of this article to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted
by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing
paragraph 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.
TWELFTH: The provisions set forth in Articles
EIGHTH, NINTH, TENTH, and here in Article TWELFTH, may not be
repealed or amended in any respect unless such repeal or
amendment is approved by the affirmative vote of the holders
of not less than seventy-five percent (75%) of the total
voting power of all outstanding shares of stock of this
Corporation. Except as expressly provided in the preceding
sentence, 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.
4. This Restated Certificate of Incorporation was
duly adopted in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
5. That the capital of said Corporation will not
be reduced under or by reason of any amendment in this
restated Certificate of Incorporation.
IN WITNESS WHEREOF, said CHESAPEAKE UTILITIES
CORPORATION has caused its corporate seal to be hereunto
affixed and this Restated Certificate of Incorporation to be
signed by Ralph J. Adkins, its President, and attested by
William C. Boyles, its Assistant Secretary, this 16th day of
May, 1995.
Chesapeake Utilities Corporation
By /s/ Ralph J. Adkins
---------------
President
(Corporate Seal)
Attest:
By /s/ William C. Boyles
---------------------
Assistant Secretary