RESTATED CERTIFICATE OF INCORPORATION
OF
POGO PRODUCING COMPANY
Pogo Producing Company, a corporation organized and
existing under and by virtue of the General Corporation Law of the
State of Delaware, Does Hereby Certify:
FIRST: The name of the corporation is Pogo
Producing Company.
SECOND: The name under which the corporation was
originally incorporated is Pennzoil Offshore Company. The date
of filing of its original certificate of incorporation with the
Secretary of State of the State of Delaware was February 19, 1970.
THIRD: This Restated Certificate of Incorporation was
duly adopted by the Board of Directors of the corporation in
accordance with Section 245 of the General Corporation Law of the
State of Delaware.
FOURTH: This Restated Certificate of Incorporation
only restates and integrates and does not further amend the
provisions of the corporation's certificate of incorporation as
heretofore amended or supplemented and there is no discrepancy
between those provisions and the provisions of this Restated
Certificate of Incorporation.
FIFTH: The text of the Certificate of Incorporation
of the corporation as heretofore amended or supplemented is
hereby restated to read as herein set forth in full:
ARTICLE I
The name of the corporation is Pogo Producing Company.
ARTICLE II
The address of its registered office in the State of Delaware
is located at No. 100 West Tenth Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted by the corporation is to engage in any lawful business,
act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
ARTICLE IV
A. The total number of shares of all classes of stock
which the corporation shall have authority to issue is 102,000,000
shares, divided into 100,000,000 shares of Common Stock of the
par value of $1 per share (Common Stock) and 2,000,000 shares
of Preferred Stock of the par value of $1 per share (Preferred
Stock). (Amended 4/25/95)
The Preferred Stock may be issued in one or more series
and the Preferred Stock of each such series shall have such
designations, preferences and relative, participating, optional,
redemption, conversion, exchange and other special rights, and
qualifications, limitations or restrictions thereof, as may be fixed
by the Board of Directors pursuant to the authority so to do which
is hereby expressly vested in it and stated and expressed in a
resolution or resolutions adopted by the Board of Directors
providing for the issuance of Preferred Stock of such series.
Except as otherwise provided in any resolution of the Board
of Directors providing for the issuance of any particular series of
Preferred Stock, Preferred Stock redeemed or otherwise acquired
by the corporation shall assume the status of authorized but
unissued Preferred Stock and may thereafter, subject to the
provisions of this Article IV and of any restrictions contained in
any resolution of the Board of Directors providing for the issuance
of any particular series of Preferred Stock, be reissued in the same
manner as other authorized but unissued Preferred Stock.
Except as otherwise specifically required by law or as
specifically provided herein or in any resolution of the Board of
Directors providing for the issuance of any particular series of
Preferred Stock, the exclusive voting power of the corporation shall
be vested in the Common Stock of the corporation. Each share of
Common Stock shall entitle the holder thereof to one vote at all
meetings of the stockholders of the corporation.
B. Except as otherwise provided in this Article IV, the
affirmative vote of the holders of not less than 80% of the
outstanding shares of Common Stock and of not less than 80% of
the outstanding shares of Preferred Stock outstanding and entitled
to vote, such Common Stock and Preferred Stock voting separately
and not as one class, shall be required:
(i) for a merger or consolidation of the corporation with
or into any other corporation, or
(ii) for any sale or lease of all or any substantial part of
the assets of the corporation to any other corporation,
person or other entity, or
(iii) any sale or lease to the corporation or any subsidiary
thereof of any assets (except assets having an aggregate fair
market value of less than $5,000,000) in exchange for
voting stock (or securities convertible into or exchangeable
for voting stock or options, warrants, or rights to purchase
voting stock or securities convertible into voting stock) of
the corporation or any subsidiary of the corporation by any
other corporation, person or entity,
if as of the record date for the determination of stockholders
entitled to notice thereof and to vote thereon, or as of the time the
Board of Directors shall have approved a memorandum of
understanding, or the corporation shall have entered into any
agreement, with respect to any such transaction for which the vote
or consent of the holders of no class or series of stock of the
corporation is otherwise required by law, the Certificate of
Incorporation or any other contract or agreement, such other
corporation, person or entity which is party to such a transaction
is the beneficial owner, directly or indirectly, of 5% or more of the
outstanding shares of any class or series of voting stock of the
corporation. Such affirmative vote or consent shall be in addition
to the vote or consent of the holders of any class or series of stock
of the corporation otherwise required by law or the Certificate of
Incorporation or the resolution or resolutions providing for the
issuance of such class or series which have been adopted by the
Board of Directors or any agreement between the corporation and
any national securities exchange.
For purposes of this Article IV any corporation, person or
other entity shall be deemed to be the beneficial owner of any
shares of stock of the corporation:
(i) which it owns directly, whether or not of record, or
(ii) which it has the right to acquire pursuant to any
agreement or understanding or upon exercise of conversion
rights, exchange rights, warrants or options or otherwise,
or
(iii) which are beneficially owned, directly or indirectly
(including shares deemed to be owned through application
of clause (ii) above), by any "affiliate" or "associate" as
those terms are defined in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934
as in effect on June 1, 1977, or
(iv) which are beneficially owned, directly or indirectly
(including shares deemed owned through application of
clause (ii) above), by any other corporation, person or
entity with which it or its "affiliate" or "associate" has any
agreement or arrangement or understanding for the purpose
of acquiring, holding, voting, or disposing of stock of the
corporation.
For the purposes of this Article IV, the outstanding shares
of any class or series of stock of the corporation shall include
shares deemed owned through the application of clauses (ii), (iii)
and (iv) above, but shall not include any other shares which may
be issuable pursuant to any agreement or upon exercise of
conversion or exchange rights, warrants, options or otherwise. As
used in this Article IV, the term "subsidiary" shall mean a
corporation, at least 40% of the voting power of the capital stock
(that is, voting power entitled to be exercised in the election of
directors, but excluding voting power entitled so to be exercised
only upon the happening of some contingency unless such
contingency shall have occurred and is continuing) of which, shall
be owned by this corporation or by one or more subsidiaries or by
this corporation and one or more subsidiaries.
The Board of Directors shall have the power and duty to
determine for the purposes of this Article IV on the basis of
information known to this corporation whether
(i) such other corporation, person or other entity
beneficially owns more than 5% of the outstanding shares
of any class or series of voting stock of the corporation,
(ii) a corporation, person or entity is an "affiliate" or
"associate" (as defined herein) of another,
(iii) the assets being acquired by the corporation, or any
subsidiary thereof, have an aggregate fair market value of
less than $5,000,000, and
(iv) the memorandum of understanding referred to in
Paragraph (4) below is substantially consistent with the
transaction covered thereby.
Any such determination shall be conclusive and binding for all
purposes of this Article IV.
The provisions of this Article IV otherwise requiring an
80% vote of the holders of Common Stock and Preferred Stock
shall not apply to:
(i) any merger or consolidation of this corporation with,
or any sale or lease to this corporation or any subsidiary
thereof of any assets of, or any sale or lease by this
corporation or any subsidiary thereof of any of its assets to,
any corporation, person or entity if the Board of Directors
of this corporation has approved a memorandum of
understanding with such other corporation, person or entity
with respect to such transaction prior to the time that such
other corporation, person or entity shall have become a
beneficial owner of more than 5% of the outstanding shares
of any class or series of voting stock of this corporation, or
(ii) any merger or consolidation of this corporation with,
or any sale or lease to this corporation or any subsidiary
thereof of any assets of, or any sale or lease by this
corporation or any subsidiary thereof of any of its assets to
any subsidiary of this corporation.
ARTICLE V
[The provision of the original Certificate of Incorporation
naming the incorporator is omitted pursuant to Section 245(c) of
the General Corporation Law of the State of Delaware.]
ARTICLE VI
In furtherance of, and not in limitation of, the powers
conferred by statute, the Board of Directors is expressly authorized
to make, alter or repeal the by-laws of the corporation.
ARTICLE VII
No contract or other transaction between the corporation
and any other corporation and no other act of the corporation with
relation to any other corporation shall, in the absence of fraud, in
any way be invalidated or otherwise affected by the fact that any
one or more of the directors of the corporation are pecuniarily or
otherwise interested in, or are directors or officers of, such other
corporation. Any director of the corporation individually, or any
firm or association of which any director may be a member, may
be a party to, or may be pecuniarily or otherwise interested in, any
contract or transaction of the corporation, provided that the fact
that he individually or as a member of such firm or association is
such a party or so interested shall be disclosed or shall have been
known to the Board of Directors or a majority of such members
thereof as shall be present at any meeting of the Board of Directors
at which action upon any such contract or transaction shall be
taken; any director of the corporation who is also a director or
officer of such other corporation or who is such a party or so
interested may be counted in determining the existence of a quorum
at any meeting of the Board of Directors which shall authorize any
such contract or transaction, and may vote thereat to authorize any
such contract or transaction, with like force and effect as if he
were not such director of officer of such other corporation or not
so interested. Any director of the corporation may vote upon any
contract or other transaction between the corporation and any
subsidiary or affiliated corporation without regard to the fact that
he is also a director of such subsidiary or affiliated corporation.
ARTICLE VIII
The Corporation reserves the right, subject to any express
provisions or restrictions contained in the Certificate of
Incorporation or Bylaws of the Corporation, to amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed herein or
by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation; provided that the provisions set
forth in Articles IV (Section B only), IX, X and in this Article VIII
may not be amended, altered, changed or repealed in any respect
unless such action is approved by the affirmative vote of the
holders of not less than 80% of the outstanding shares of Common
Stock and of not less than 80% of the outstanding shares of
Preferred Stock, voting separately and not as one single class.
ARTICLE IX
The number of directors which shall constitute the whole
Board of Directors of the Corporation shall be not less than three
(3) nor more than thirteen (13) as specified from time to time in
the Bylaws of the Corporation, except in the case of an increase in
the number of directors by reason of any default provisions with
respect to any outstanding series of Preferred Stock. The Board is
divided into three classes, being 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 authorized
number of directors by three and if a fraction is also contained in
such quotient, then 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; provided, however,
that the directors first elected to Class I shall serve for a term
ending on the annual meeting next ensuing, the directors first
elected to Class II shall serve for a term ending on the second
annual meeting following the meeting at which such directors were
first elected, and the directors first elected to Class III shall serve
a full term as hereinabove provided. The foregoing
notwithstanding, each director shall serve until his successor shall
have been qualified, or until he shall be disabled or shall otherwise
be removed.
For purposes of the preceding paragraph, reference to the
first election of directors shall signify the first election of directors
concurrent with the approval by stockholders of this Article IX. At
each annual election held thereafter, 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 greater of (a) four directors, or (b) a majority of the
directors at anytime in office, shall constitute a quorum for the
transaction of business, and if at any meeting of the Board of
Directors there shall be less than such a quorum, 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 this Certificate of Incorporation.
No director of the Corporation shall be removed from his
office as a director by vote or other action of stockholders or
otherwise except for cause.
A director need not be a stockholder. The election of
Directors need not be by ballot unless the Bylaws should so
require.
ARTICLE X
No action required to be taken or which may be taken at
any annual or special meeting of stockholders of this corporation
may be taken without a meeting, and the powers of stockholders to
consent in writing, without a meeting, to the taking of any action
is specifically denied."
ARTICLE XI (Added by Amendment dated 10/8/86)
No director of the Corporation shall be personally liable to
the Corporation or any of its stockholders for monetary damages
for breach of fiduciary duty as a director involving any act or
omission of any such director occurring on or after September 30,
1986; provided, however, that the foregoing provision shall not
eliminate or limit the liability of a director (i) for any breach of
such 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 Title 8, Section 174 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which such
director derived an improper personal benefit. Any repeal or
modification of this Article by the stockholders of the Corporation
shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation
existing at the time of such repeal or modification.
IN WITNESS WHEREOF, said Pogo Producing Company
has caused this certificate to be executed in its corporate name by
William E. Gipson, its President, and its corporate seal to be
hereunto affixed and attested by Hunter L. Martin, Jr., its
Secretary, this 3rd day of October, 1977.
POGO PRODUCING COMPANY
By /s/ William E. Gipson
William E. Gipson
President
ATTEST: /s/ Hunter L. Martin, Jr.
Hunter L. Martin, Jr.
Secretary
[Seal]
CORPORATE SEAL