EXHIBIT 3.1
ARTICLES OF AMENDMENT TO THE
RESTATED ARTICLES OF INCORPORATION
OF
EEX CORPORATION
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation adopts the following Articles of
Amendment to its Restated Articles of Incorporation:
FIRST: The name of the corporation is EEX Corporation.
SECOND: Article Four (A) of the Restated Articles of Incorporation of the
corporation is hereby deleted and replaced in its entirety with the following:
"(A) Authorized Capital Stock.
(i) The aggregate number of shares of all classes of stock the Company
shall have authority to issue is 160,000,000 consisting of and divided
into:
(a) one class of 150,000,000 shares of Common Stock, par value $0.01
per share (the "Common Stock"); and
(b) one class of 10,000,000 shares of Preferred Stock, no par value
(the "Preferred Stock"), which may be divided into and issued in
one or more series, as hereinafter provided.
(ii) Reverse Stock Split. Effective as of the close of business on
the date of filing this amendment to the Restated Articles of Incorporation
(the "Effective Time"), the filing of this amendment shall effect a reverse
stock split (the "Reverse Stock Split") pursuant to which each three (3)
shares of Common Stock of the corporation issued and outstanding, shall be
combined into one (1) validly issued, fully paid and nonassessable share of
Common Stock of the corporation. The number of authorized shares, the
number of shares of treasury stock and the par value of the Common Stock
shall not be affected by the Reverse Stock Split. Each stock certificate
that prior to the Effective Time represented shares of Common Stock shall,
following the Effective Time, represent the number of shares into which the
shares of Common Stock represented by such certificate shall be combined.
Fractional shares that occur as a result of the foregoing shall be
purchased by the corporation based upon the closing price reported for the
Common Stock on the New York Stock Exchange on the date of filing this
amendment."
THIRD: This amendment to the Restated Articles of Incorporation was
adopted by the shareholders of the corporation on December 8, 1998.
FOURTH: The number of shares of the corporation outstanding at the
time of such adoption was 127,150,427; and the number of shares entitled to vote
thereon was 127,150,427.
FIFTH: The number of shares voted for such amendment was 97,771,506;
and the number of shares voted against such amendment was 19,490,902.
Dated December 8, 1998.
EEX CORPORATION
By: (s) J. K. Hartrick
--------------------------
J. K. Hartrick
Senior Vice President, General Counsel
and Corporate Secretary
RESTATED ARTICLES OF INCORPORATION
OF
EEX CORPORATION
ARTICLE 1 SECTION ONE
EEX Corporation, a Texas corporation (the "Company") formerly named Enserch
Exploration, Inc. and formerly named Lone Star Energy Plant Operations, Inc.,
pursuant to the provisions of Article 4.07 of the Texas Business Corporation
Act, as amended, hereby adopts Restated Articles of Incorporation without
amendments as set forth below.
SECTION TWO
The Restated Articles of Incorporation accurately copy the Articles of
Incorporation and all amendments and supplements thereto that are in effect
immediately prior hereto (collectively, the "Old Articles"), including the
Statement of Resolution filed on September 11, 1996 establishing and designating
the $200 Series A Junior Participating Preferred Stock, but except that the
number of directors currently constituting the Board of Directors and the names
and addresses of the persons now serving as directors is inserted in lieu of
similar information in the Old Articles and the name of each incorporator is
omitted.
SECTION THREE
The Restated Articles of Incorporation were adopted by resolution of the Board
of Directors of the Company on February 24, 1998.
SECTION FOUR
The Old Articles are hereby superseded by the following Restated Articles of
Incorporation, which accurately copy the entire text thereof except as above set
forth:
1.01 RESTATED ARTICLES OF INCORPORATION
OF
EEX CORPORATION
ARTICLE ONE
The name of the corporation (the "Company") is EEX Corporation.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purposes for which the Company is organized are:
(1) To engage in all phases of the gas and oil business and related activities,
including without limitation engaging in exploration, drilling,
development, and production of gas and oil properties;
(2) To store, transport, buy and sell, gas, oil, salt, brine and other mineral
solutions and liquefied minerals;
(3) To explore for, produce, purchase and sell, store, process and manufacture,
transport and distribute gas, oil and all other minerals;
(4) To manufacture, produce, purchase or otherwise acquire, sell or dispose of,
distribute, mortgage, pledge, lease, repair, install, operate, deal in and
with, whether as principal or agent, products, goods, appliances, wares,
merchandise, fixtures, plants, structures, machinery, and materials of
every kind and description, to lend money for the carrying out of such
purposes, and to take and hold real and personal property for the payment
of such funds so loaned;
(5) To engage in the business of operation and maintenance of cogeneration and
other power production projects; and
(6) To transact any or all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act, as amended and in
effect from time to time (the "TBCA").
Restated Articles of Incorporation of EEX Corporation
Page 1 of 17
ARTICLE FOUR
(A) Authorized Capital Stock. The aggregate number of shares of all classes
of stock the Company shall have authority to issue is 410,000,000
consisting of and divided into:
(i) one class of 400,000,000 shares of Common Stock, par value $0.01 per
share (the "Common Stock"); and
(ii) one class of 10,000,000 shares of Preferred Stock, no par value (the
"Preferred Stock"), which may be divided into and issued in one or more
series, as hereinafter provided.
(B) Series. The Preferred Stock may be divided into and issued in, at any time
and from time to time, one or more series as the Board of Directors shall
determine pursuant to the authority hereby vested in it. The Board of
Directors shall have the authority to establish series of unissued shares
of Preferred Stock, at any time and from time to time, by fixing and
determining the designations, preferences, limitations and relative rights
of the shares of the series, subject to and within the limitations of the
TBCA and the Articles of Incorporation, including without limitation the
following:
(a) the number of shares constituting the series and the distinctive
designation of that series;
(b) the dividend rate on shares of the series, the dividend payment dates,
whether dividends shall be cumulative (and, if so, from which date or dates),
non-cumulative, or partially cumulative, and the relative rights of priority, if
any, of payment of dividends on the shares of the series;
(c) the amount payable to the holders of shares of the series upon any
voluntary or involuntary liquidation of the Company;
(d) the preference in the assets of the Company over any other class,
classes or series of shares upon the voluntary or involuntary liquidation of the
Company;
(e) whether the shares of the series are redeemable at the option of the
Company, the shareholder or another person or upon occurrence of a designated
event and, if so, the price payable upon redemption of shares of the series and
the terms and conditions on which such shares are redeemable;
(f) the provisions of the sinking fund, if any, for the redemption or
purchase of shares of the series;
(g) the voting rights, if any, of the shares of the series;
Restated Articles of Incorporation of EEX Corporation
Page 2 of 17
(h) the terms and conditions, if any, on which such shares may be
converted, at the option of the Company, the shareholder or another person or
upon occurrence of a designated event, into shares of any other class or series;
(i) the terms and conditions, if any, on which such shares may be
exchanged, at the option of the Company, the shareholder or another person or
upon occurrence of a designated event, for shares, obligations, indebtedness,
evidences of ownership, rights to purchase securities or other securities of the
Company or one or more other domestic or foreign corporations or other entities
or for other property or for any combination of the foregoing; and
(j) any other special rights and qualifications, limitations or
restrictions permitted by the TBCA to be granted to or imposed on the series.
Any of the designations, preferences, limitations and relative rights of the
shares of any series so established may be made dependent upon facts
ascertainable outside the Articles of Incorporation, which facts may include
future acts of the Company, provided that the manner in which such facts shall
operate upon the designations, preferences, limitations and relative rights of
the shares of any series shall be set forth in the resolution or resolutions
establishing the series.
All shares within the same series of Preferred Stock shall be identical except
as to the date of issue and the dates from which dividends on shares of the
series issued on different dates will cumulate, if cumulative. The Board of
Directors shall have the authority to increase or decrease the number of shares
within each series of Preferred Stock; provided, that the Board of Directors may
not decrease the number of shares within a series to less than the number of
shares within such series that are then outstanding.
(C) Preemptive Rights. No shareholder of the Company shall by reason of the
shareholder's holding shares of any class or series have any preemptive or
preferential right to purchase or subscribe to any shares of any class or
series of the Company, now or hereafter to be authorized, or any notes,
debentures, bonds or other securities convertible into or carrying options
or warrants to purchase shares of any class or series, now or hereafter to
be authorized, whether or not the issuance of any such shares, or such
notes, debentures, bonds or other securities, would adversely affect the
dividend or voting rights of such shareholders, other than such rights, if
any, as the Board of Directors in its discretion may fix; and the Board of
Directors may issue shares of any class or series of the Company, or any
notes, debentures, bonds or other securities convertible into or carrying
options or warrants to purchase shares of any class or series, without
offering any such shares of any class or series, either in whole or in
part, to the existing shareholders of any class or series.
(D) Subordination of Common Stock. The Common Stock shall be subject and
subordinate to the rights, privileges and preferences of any series of
Preferred Stock to the extent set forth in the resolution or resolutions of
the Board of Directors establishing the series.
Restated Articles of Incorporation of EEX Corporation
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(E) Other Provisions Applicable to Capital Stock.
(a) Each outstanding share of Common Stock shall be entitled to one vote
on each matter submitted to a vote at a meeting of shareholders,
except as otherwise provided by the TBCA or as set forth in the
resolution or resolutions of the Board of Directors establishing any
series of Preferred Stock.
(b) At each election for directors of the Company ("Directors"), every
shareholder entitled to vote at such election shall have the right to
vote the number of shares owned by such shareholder for as many
persons as there are Directors to be elected and for whose election
such shareholder has a right to vote; provided that cumulative voting
in the election for Directors is prohibited.
(c) In the event of any dissolution, liquidation or winding up of the
Company, but subject to the rights of the holders of any series of
Preferred Stock, holders of Common Stock shall be entitled to receive
pro rata all of the remaining assets of the Company available for
distribution to its shareholders.
(d) Subject to the rights of the holders of Preferred Stock as set forth
in the resolution or resolutions of the Board of Directors
establishing any series of Preferred Stock, dividends may be paid upon
Common Stock to the exclusion of Preferred Stock out of any assets of
the Company available therefor.
_____________________________
As adopted by the Board of Directors of the Company effective September 11,
1996:
"RESOLVED, that pursuant to the authority conferred upon the Board of
Directors of this Company by the provisions of the Restated Articles of
Incorporation of this Company, the Board of Directors hereby creates a new
series of Preferred Stock of the Company which shall consist of 1,000,000
shares of no par value, which shall be designated and known as $200 Series
A Junior Participating Preferred Stock, and that in addition to the
preferences, rights, voting powers and the restrictions or qualifications
of all shares of Preferred Stock regardless of series, described and
expressed in the Restated Articles of Incorporation of the Company, the
Board of Directors hereby declares that the shares of the $200 Series A
Junior Participating Preferred Stock shall have the terms, conditions,
rights and preferences, as follows:
1. Designation. The shares of such series shall be designated "$200 Series A
Junior Participating Preferred Stock" (herein called "Series A Preferred
Stock").
2. Number. The number of shares of Series A Preferred Stock shall be
1,000,000, which number may be increased or decreased by resolution adopted by
the Board of Directors:
Restated Articles of Incorporation of EEX Corporation
Page 4 of 17
provided, however, that no decrease shall reduce the number of authorized shares
of Series A Preferred Stock to less than the number of shares then issued and
outstanding plus the number of shares issuable upon the exercise of outstanding
rights, options for warrants or upon conversion of outstanding securities issued
by the Company.
3. Dividends. Subject to the rights of the holders of any shares of any
other series of Preferred Stock (or any similar stock) of the Company with
respect to dividends, but in preference to the holders of shares of the Common
Stock, par value $0.01 per share (the "Common Stock"), the Company or of any
other class or series of stock of the Company ranking junior to the Series A
Preferred Stock, the holders of shares of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, dividends for each Quarterly Dividend
Period (as hereinafter defined) equal (rounded to the nearest cent) to the
greater of (a) $20 or (b) subject to the provision for adjustment hereinafter
set forth, 200 times the aggregate per share amount of all cash dividends, and
200 times the aggregate per share amount (payable in cash, based upon the fair
market value at the time the non-cash dividend or other distribution is declared
as determined in good faith by the Board of Directors) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared (but not withdrawn) on the Common Stock during the
immediately preceding Quarterly Dividend Period, or, with respect to the first
Quarterly Dividend Period, since the first issuance of any share or fraction of
a share of Series A Preferred Stock. In the event the Company shall at any time
after September 10, 1996 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
As used herein "Quarterly Dividend Period" shall mean a period of three months
which shall commence on February 1, May 1, August 1 and November 1 in each year
(or in the case of original issuance, from the date of original issuance) and
shall end on and include the day next preceding the first date of the next
Quarterly Dividend Period. The first day of each such Quarterly Dividend Period
shall be the dividend payment date for the regular quarterly dividend payable
for the preceding Quarterly Dividend Period, except that the first dividend on
shares of Series A Preferred Stock shall be payable on the quarterly payment
date next succeeding the expiration of 30 days after the date of initial issue
of any shares of the Series A Preferred Stock.
Dividends on the Series A Preferred Stock, if any, shall be cumulative so that
no dividend (other than a dividend payable in Common Stock) or other
distribution shall be paid or declared or made on, and no amounts shall be
applied to the purchase or redemption of, the
Restated Articles of Incorporation of EEX Corporation
Page 5 of 17
Common Stock or any other class of stock ranking junior to the Series A
Preferred Stock as to dividends or assets unless (i) full cumulative dividends
for all past Quarterly Dividend Periods have been paid or declared and set apart
for payment, and full cumulative dividends for then current Quarterly Dividend
Period shall have been or simultaneously therewith shall be paid and declared on
outstanding Series A Preferred Stock, and (ii) after giving effect to such
payment of dividend, other distribution, purchase or redemption, the aggregate
capital of the Company applicable to all capital stock outstanding ranking
junior to the Series A Preferred Stock as the dividends or assets plus the
consolidated surplus of the Company and its subsidiaries shall exceed the
aggregate amount payable on involuntary dissolution, liquidation or winding up
of the Company on all shares of the Series A Preferred Stock and all stock
ranking prior to on a parity with the Series A Preferred Stock as the dividends
or assets to be outstanding after the payment of such dividend, other
distribution, purchase or redemption. Determinations made with respect to the
declaration and payment of dividends and other distributions shall be made in
accordance with the provisions of the Texas Business Corporation Act, as amended
and in effect at the time (the "TBCA").
4. Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the holders of the Series A Preferred
Stock shall, subject to the prior and superior rights of the holders of any
shares of any other series of Preferred Stock (or any similar stock) of the
Company, be entitled to receive the greater of (a) $200 per share, or (b) an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 200 times the aggregate amount to be distributed per share to holders
of Common Stock, plus in either instance accrued dividends to the date of
distribution, whether or not earned or declared. In the event the Company shall
at any time after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event pursuant to clause
(b) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
No distribution shall be made to the holders of shares of Common Stock or any
other stock ranking junior to the Series A Preferred Stock upon liquidation,
distribution or winding up, unless, prior thereto, the holders of Shares of
Series A Preferred Stock shall have received the amounts set forth above. If
the assets available for distribution to holders of shares of Series A Preferred
Stock shall not be sufficient to pay in full the amounts so determined to be
payable on all shares of the Series A Preferred Stock in the event of such
voluntary or involuntary dissolution, liquidation or winding up, as the case may
be, then assets available for payment shall be distributed ratably among the
holders of the Series A Preferred Stock of all series in accordance with the
amounts so determined to be payable on the shares of each series in the event of
voluntary or involuntary dissolution, liquidation or winding up, as the case may
be, in proportion to the full preferential amounts to which they are
respectively entitled. After
Restated Articles of Incorporation of EEX Corporation
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payment to the holders of the Series A Preferred Stock of the full preferential
amounts hereinbefore provided for, the holders of Series A Preferred Stock will
have no other rights or claims to any of the remaining assets of the Company
either upon distribution of such assets or upon dissolution, liquidation or
winding up. The sale of all or substantially all of the property of the Company
to, or the merger or consolidation of the Company into or with, any other
corporation, or the purchase or redemption by the Company of any shares of its
Preferred Stock, or its Series A Preferred Stock or its Common Stock or any
other class of its stock shall not be deemed to be a distribution of assets or a
dissolution, liquidation or winding up for the purpose of this paragraph.
5. Optional Redemption. So long as full cumulative dividends on all
outstanding shares of Series A Preferred Stock for all dividend periods ending
on or prior to the date fixed for redemption shall have been paid or declared
and set apart for payment and subject to any applicable requirements of Texas
law and the rights of the holders of any shares of any other series of Preferred
Stock (or any similar stock) of the Company, the Company shall have the option
to redeem the whole or any part of the Series A Preferred Stock at any time on
at least 30 days notice in accordance with the provisions of the procedures for
redemptions set forth in the TBCA at a redemption price equal to the greater of
(a) $200 and (b), subject to the provision for adjustment hereinafter set forth,
200 times the "current per share market price" of the Common Stock on the date
of mailing of the notice of redemption, together with unpaid accumulated
dividends to the date of such redemption. In the event the Company shall at any
time after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock
or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the amount to which holders of shares of Series A
Preferred Stock were otherwise entitled immediately prior to such event under
the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event. The "current per share market price" on any date shall be deemed to be
the average of the closing price per share of such Common Stock for the 10
consecutive "trading days" (as such term is hereinafter defined) immediately
prior to such date. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Common Stock is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted the
average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use or, if on any such
date the Common Stock is not quoted by any such organization, the average of the
closing bid and
Restated Articles of Incorporation of EEX Corporation
Page 7 of 17
asked prices as furnished by a professional market maker making a market in the
Common Stock selected by the Board of Directors of the Company. If on such date
no such market maker is making a market in the Common Stock, the fair value of
the Common Stock on such date as determined in good faith by the Board of
Directors of the Company shall be used. The term "trading day" shall mean a day
on which the principal national securities exchange on which the Common Stock is
listed or admitted to trading is open for transaction of business or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which banking
institutions in the State of New York are not authorized or obligated by law or
executive order to close.
6. Treasury Shares. So long as any shares of the Series A Preferred Stock
are outstanding, shares of the Series A Preferred Stock which are purchased,
redeemed or otherwise acquired by the Company shall not be reissued, or
otherwise disposed of, as shares of Series A Preferred Stock.
7. Conversion. Other than as set forth above, the Series A Preferred Stock
shall not have any conversion or exchange rights.
8. Voting Rights.
A) Each share of Series A Preferred Stock shall entitle the holder thereof to
200 votes on all matters submitted to a vote of the shareholders of the Company.
In the event the Company shall at any time after the Rights Declaration Date,
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such as the number of votes
to which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Series A Preferred Stock shall have no voting rights other than the
voting rights set forth herein, in the Restated Articles of Incorporation
of the Company or as otherwise provided by Texas law.
9. Consolidation, Merger, etc. In case the Company shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or converted or changed into other stock or
securities, cash and/or other property, then in any such case proper provision
shall be made so that each share of Series A Preferred Stock shall at the same
time be similarly exchanged for or converted or changed into an amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
200 times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, for which or into which each
share of Common Stock is exchanged for or converted or changed. In the event
the Company shall at any time after the Rights
Restated Articles of Incorporation of EEX Corporation
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Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
conversion or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
10. Amendment. No change shall be made in any of the rights or preferences
of the Series A Preferred Stock at the time outstanding without the affirmative
vote of at least two-thirds of the votes entitled to be cast with respect to the
shares of the Series A Preferred Stock outstanding on the record date for such
meeting in addition to any other vote, if any, as may be required for such
change under the applicable provisions of the Restated Articles of Incorporation
and the laws of the State of Texas at the time applicable thereto."
ARTICLE FIVE
The street address of the Company's registered office is 2500 City West Blvd.,
Suite 1400, Houston, Texas 77042, and the name of its registered agent at that
address is Janice K. Hartrick.
ARTICLE SIX
(A) Number. The number of Directors constituting the Board of Directors of the
Company shall be fixed from time to time by the Board of Directors by the
affirmative vote of not less than a majority of the Continuing Directors
(as defined in Article Ten) but shall not be less than three (3), subject
to such rights to elect additional Directors under such specified
circumstances as may be granted to holders of Preferred Stock,
(B) Required Vote to Elect Directors. With respect to the election of
Directors, the act of the shareholders electing the Directors shall be a
vote of the holders of a majority of the outstanding shares entitled to
vote in the election of Directors.
(C) Term. Directors shall hold office until their respective successors shall
have been elected and qualified.
(D) Removal. Directors may be removed from office, with or without cause, only
by the affirmative vote of the holders of not less than a majority of the
outstanding shares entitled to vote in the election of Directors, if notice
of the intention to act upon such matter shall have been given in the
notice calling for the meeting.
(E) Vacancies; Increase in Number of Directors. Subject to such rights to elect
Directors under specified circumstances as may be granted to holders of
Preferred Stock,
Restated Articles of Incorporation of EEX Corporation
Page 9 of 17
newly created directorships resulting from any increase in the number of
Directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other reason shall be filled
solely by the affirmative vote of a majority of the Continuing Directors,
even though less than a quorum of the Board of Directors. No decrease in
the number of Directors constituting the Board of Directors shall shorten
the term of any incumbent Director.
(F) Current Directors. The number of Directors constituting the Board of
Directors is five (5), subject to being increased or decreased as set forth
above. The names and addresses of the persons who are to serve as
Directors and their classification are:
Name Address
---- -------
T. M Hamilton 2500 City West Blvd., Suite 1400, Houston, Texas 77042
F. S. Addy 2500 City West Blvd., Suite 1400, Houston, Texas 77042
B. A. Bridgewater, Jr. 2500 City West Blvd., Suite 1400, Houston, Texas 77042
F. M. Lowther 2500 City West Blvd., Suite 1400, Houston, Texas 77042
M. P. Mallardi 2500 City West Blvd., Suite 1400, Houston, Texas 77042
ARTICLE SEVEN
To the fullest extent permitted by law, a Director shall not be liable to the
Company or its shareholders for monetary damages for any act or omission in his
capacity as a Director. Any repeal or modification of this Article shall be
prospective only and shall not adversely affect any limitation of the personal
liability of a Director existing at the time of the repeal or modification. The
provisions of this Article shall not be deemed to limit or preclude
indemnification of a Director by the Company for any liability of a Director
that has not been eliminated by the provisions of this Article.
ARTICLE EIGHT
(A) Power to Alter, Amend or Repeal Bylaws. The power to alter, amend, suspend
or repeal the Bylaws or to adopt new Bylaws shall be vested in, and shall
require the affirmative vote of not less than a majority of the Continuing
Directors (as defined in Article Ten); provided that any Bylaw or amendment
thereto as adopted by the Board of Directors may be altered, amended,
suspended or repealed by the affirmative vote of the holders of not less
than 66 2/3% of the outstanding Voting Stock (as defined in Article Ten) or
a new Bylaw in lieu thereof may be adopted by vote of such shareholders.
No Bylaw that has been altered, amended or adopted by such a vote of the
shareholders may be altered, amended or repealed by vote of the Directors
until two years shall have expired since such action by such vote of
shareholders.
(B) Bylaw Stock Ownership Restrictions. The Board of Directors shall have the
power and authority, from time to time, to adopt, alter or amend the Bylaws
to add or amend
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Page 10 of 17
such provisions as in their judgment may be necessary or appropriate to
ensure that the Company and its shareholders satisfy the citizenship or
other requirements imposed by any federal or state law relating to the
ownership, possession or leasing of gas, oil or other minerals, land,
vessels or any other property, licenses or rights of any nature whatsoever
in which the Company or any of its subsidiaries may have or hereafter have,
or seek to have, any right or interest. Without limiting such general
powers, the Board of Directors shall have the power and authority, from
time to time, to adopt, alter or amend the Bylaws to add or amend
provisions that for such purpose impose restrictions on the transfer or
registration of transfer of the shares of the Company, including without
limitation restrictions that:
(1) obligate the holders of the restricted shares to offer to the Company or to
any other holders of shares of the Company or to any other person or to any
combination of the foregoing, a prior opportunity, to be exercised within a
reasonable time, to acquire the restricted shares;
(2) provide that the Company or the holders of any class of shares of the
Company must consent to any proposed transfer of the restricted shares or
approve the proposed transferee of the restricted shares before the
transfer may be effected;
(3) prohibit the transfer of the restricted shares to designated persons or
classes of persons; or
(4) maintain any tax or other status or advantage to the Company.
ARTICLE NINE
(A) No Shareholder Written Consent Action. Any action required or permitted to
be taken by the shareholders of the Company must be effected at a duly
called annual or special meeting of such holders and may not be effected by
any consent in writing by such holders.
(B) Special Meetings of Shareholders. Subject to such rights to call special
meetings of shareholders under specified circumstances as may be granted to
holders of Preferred Stock, special meetings of shareholders may be called
only by the Chairman of the Board or the President of the Company, at the
request in writing or by vote of not less than a majority of the Continuing
Directors (as defined in Article Ten) or at the request of the holders of
not less than 50% of the outstanding shares entitled to vote at the
meeting, and not by any other persons. Any request for a special meeting
made by the Board of Directors shall state the purpose or purposes of the
proposed meeting, and business transacted at the meeting shall be confined
to the objects stated in the notice of the meeting.
Restated Articles of Incorporation of EEX Corporation
Page 11 of 17
ARTICLE TEN
In addition to any other vote of shareholders required by the TBCA, the
Articles of Incorporation or otherwise, the affirmative vote of the holders of
not less than 80% of the outstanding shares of "Voting Stock" (as hereinafter
defined) of the Company, including the affirmative vote of the holders of not
less than 50% of the outstanding shares of Voting Stock not "Beneficially
Owned"(as hereinafter defined), directly or indirectly, by any "Related Person"
(as hereinafter defined), shall be required for the approval or authorization of
any "Business Combination" (as hereinafter defined) in which any Related Person
has an interest (except proportionately as a shareholder of the Company);
provided, that the 50% voting requirement referred to above shall not be
applicable if the Business Combination is approved by the affirmative vote of
the holders of not less than 90% of the outstanding shares of Voting Stock;
provided further that the 80% requirement referred to above shall not be
applicable if:
(1) The Board of Directors by a vote of not less than a majority of the
"Continuing Directors" (as hereinafter defined) then holding office (a)
expressly approved in advance the acquisition of outstanding shares of
Voting Stock that resulted in the Related Person becoming a Related Person
or (b) approved the Business Combination prior to the Related Person
involved in the Business Combination having become a Related Person;
(2) The Business Combination is solely between the Company and another
corporation, 100% of the Voting Stock of which is owned, directly or
indirectly, by the Company; or
(3) All of the following conditions have been met: (a) the Business Combination
is a merger or consolidation, the consummation of which is proposed to take
place within one (1) year after the date of the transaction that resulted
in the Related Person becoming a Related Person and the cash or fair market
value of the property, securities or other consideration to be received per
share by holders of Common Stock in the Business Combination is not less
than the highest per share price (with appropriate adjustments for
recapitalizations and for stock splits, reverse stock splits and share
dividends, and including any brokerage commissions, transfer taxes and
soliciting dealer fees) paid by the Related Person in acquiring any of its
holdings of Common Stock; (b) the consideration to be received by such
holders is either cash or, if the Related Person shall have acquired the
majority of its holdings of Common Stock with a form of consideration other
than cash, the same form of consideration with which the Related Person
acquired such majority; (c) after such Related Person has become a Related
Person and prior to consummation of such Business Combination: (i) except
as approved by a majority of the "Continuing Directors" (as hereinafter
defined), there shall have been no failure to declare and pay at the
regular date therefor any full quarterly dividends (whether or not
cumulative) on any outstanding shares of Preferred Stock, (ii) there shall
have been no reduction in the annual rate of dividends paid per share on
the Company's Common Stock (adjusted as appropriate for recapitalizations
Restated Articles of Incorporation of EEX Corporation
Page 12 of 17
and for stock splits, reverse stock splits and share dividends) except as
approved by a majority of the Continuing Directors, (iii) such Related
Person shall not have become the Beneficial Owner of any additional shares
of Voting Stock of the Company except as part of the transaction that
resulted in such Related Person becoming a Related Person, and (iv) such
Related Person shall not have received the benefit, directly or indirectly
(except proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or
other tax advantages provided by the Company, whether in anticipation of or
in connection with such Business Combination or otherwise; and (d) a proxy
statement, that complies with the requirements of the "Exchange Act" (as
hereinafter defined) and the rules and regulations thereunder (or any
subsequent provisions replacing the Exchange Act, rules or regulations),
shall be mailed to all shareholders of record not less than forty (40) days
prior to the consummation of the Business Combination for the purpose of
soliciting shareholder approval of the Business Combination and shall
contain at the front thereof, in a prominent place, any recommendations as
to the advisability (or inadvisability) of the Business Combination that
the Continuing Directors, or any of them, may choose to state and, if
deemed advisable by a majority of the Continuing Directors, an opinion of a
reputable investment banking firm as to the fairness (or unfairness) of the
terms of such Business Combination from the point of view of the remaining
shareholders of the Company (such investment banking firm to be selected by
a majority of the Continuing Directors and to be paid a reasonable fee for
its services by the Company upon receipt of such opinion).
For the purposes of this Article:
"Affiliate," when used to indicate a relationship to a specified person,
shall mean a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, the specified person.
"Associate," when used to indicate a relationship with a specified
person, shall mean (a) any corporation, partnership or other organization
of which the specified person is an officer or partner or is, directly or
indirectly, the Beneficial Owner of five percent or more of any class of
equity securities, (b) any trust or other estate in which the specified
person has a substantial beneficial interest or as to which the specified
person serves as trustee or in a similar fiduciary capacity, (c) any
relative or spouse of the specified person, or any relative of that spouse,
who has the same home as the specified person or who is a director or
officer of the Company or any of its parents or Subsidiaries, and (d) any
person who is a director or officer of the specified person or any of its
parents or subsidiaries (other than the Company or any Subsidiary of the
Company).
"Beneficial Owner" and "Beneficially Own," when used with reference to
any Voting Stock, shall mean
Restated Articles of Incorporation of EEX Corporation
Page 13 of 17
(a) that the person or any of its Affiliates or Associates beneficially owns,
directly or indirectly, within the meaning of Rule 13d-3 under the Exchange
Act as in effect on September 10, 1996;
(b) that the person or any of its Affiliates or Associates has (i) the right to
acquire (whether that right is exercisable immediately or only after the
passage of time and whether that right is contingent or absolute) pursuant
to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or
(ii) the right to vote pursuant to any agreement, arrangement or
understanding (but neither that person nor any such Affiliate or Associate
shall be deemed to be the Beneficial Owner of any shares of Voting Stock
solely by reason of a revocable proxy granted with respect to shares for a
particular meeting of shareholders pursuant to a public solicitation of
proxies for that meeting, if neither that person nor any such Affiliate or
Associate is otherwise deemed the Beneficial Owner of those shares); or
(c) that are beneficially owned, directly or indirectly, within the meaning of
Rule 13d-3 under the Exchange Act as in effect on September 10, 1996 by any
other person with which the person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (other than solely by reasons of a revocable
proxy given in response to public proxy or consent solicitation made
pursuant to the applicable rules under the Exchange Act) or disposing of
any shares of Voting Stock; provided, however, that in the case of any
employee stock ownership or similar plan of the Company or of any
Subsidiary in which the beneficiaries thereof possess the right to vote any
shares of Voting Stock held by that plan, no such plan and no trustee with
respect thereto (or any Affiliate of that trustee), solely by reason of
that capacity as trustee, shall be deemed for the purposes hereof to
Beneficially Own any shares of Voting Stock held under any such plan.
"Business Combination" shall mean (a) any merger, consolidation or share
exchange involving the Company or a Subsidiary, (b) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of all or any
"Substantial Part" (as hereinafter defined) of the assets either of the
Company (including without limitation any voting securities of a
Subsidiary) or of a Subsidiary, (c) any sale, lease, exchange, transfer or
other disposition of assets having a fair market value of $5,000,000 or
more to the Company or a Subsidiary, (d) the issuance or transfer by the
Company or a Subsidiary (other than by way of a pro rata distribution to
all shareholders) of any securities of the Company or a Subsidiary, (e) any
reclassification of securities (including any reverse stock split) or
recapitalization by the Company, the effect of which would be to increase
the voting power (whether or not currently exercisable) of a Related
Person, (f) any plan or proposal for the liquidation or dissolution of the
Company, (g) any series or combination of transactions having, directly or
indirectly, the same effect as any of the foregoing, and (h) any agreement,
contract or other arrangement providing, directly or indirectly, for any of
the foregoing.
Restated Articles of Incorporation of EEX Corporation
Page 14 of 17
"Continuing Director" shall mean any member of the Board of Directors
who is not an Affiliate or Associate of a Related Person and who was a
member of the Board of Directors immediately prior to the time that the
Related Person became a Related Person, and any successor to a Continuing
Director who is not an Affiliate or Associate of the Related Person and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors then serving as members of the Board of Directors. Provisions
hereof requiring approval by Continuing Directors shall not be deemed
satisfied unless there is at least one Continuing Director.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"other consideration to be received," for purposes of subparagraph (3)
of this Article, shall include without limitation Common Stock retained by
the Company's existing public shareholders in the event of a Business
Combination in which the Company is the surviving corporation.
"person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, limited
liability company, corporation, company, institution, entity, party or
governmental authority.
"Related Person" shall mean and include any person or "group" of persons
(as such term is used in Regulation 13D-G under the Exchange Act), and each
Affiliate and Associate of any such person, that individually or
collectively is the Beneficial Owner in the aggregate of not less than 10%
of the outstanding Voting Stock, other than the Company or any employee
benefit plan(s) sponsored by the Company.
"Subsidiary" shall mean, with respect to any person, a person in which
the person directly or indirectly owns at least a majority of the
outstanding voting securities or other equity interests having the power,
under ordinary circumstances, to elect a majority of the directors, or
otherwise to direct the management and policies, of such person, and any
person that is affiliated with such person.
"Substantial Part" shall mean more than 5% of the book value of the
total assets of the person in question as of the end of the most recently
completed fiscal year or, in the case of Voting Stock of a Subsidiary, 10%
or more of the outstanding shares of such Subsidiary's Voting Stock.
"Voting Stock" shall mean all outstanding shares of capital stock of the
Company or other person entitled to vote generally in the election of
Directors, considered for the purposes of this Article as a single class.
If the Company has Voting Stock entitled to more or less than one vote for
any such share, each reference in this Article to a proportion or
percentage of shares of Voting Stock shall be calculated by
Restated Articles of Incorporation of EEX Corporation
Page 15 of 17
reference to the portion or percentage of votes entitled to be cast by the
holders of such shares.
For the purpose of this Article, a majority of the Continuing Directors shall
have the power to determine, on the basis of information known to them, of: (a)
the number of shares of Voting Stock of which any person is the Beneficial
Owner, (b) whether a person is a Related Person, (c) whether a person is an
Affiliate or Associate of another person, (d) whether a person has an agreement,
arrangement or understanding with another as to the matters referred to in the
definition of Beneficial Owner herein, (e) whether the assets subject to any
Business Combination constitute a Substantial Part, (f) whether any Business
Combination is one in which a Related Person has an interest (except
proportionately as a shareholder of the Company), (g) the fair market value of
property other than cash or stock, (h) the highest per share price in accordance
with this Article, (i) whether the applicable conditions set forth in this
Article have been met with respect to any Business Combination, and (j) such
other matters with respect to which a determination is required under this
Article.
A majority of the Continuing Directors then in office shall have the right to
demand that any person who those Directors reasonably believe is a Related
Person (or holds of record shares of Voting Stock Beneficially Owned by any
Related Person) supply the Company with complete information about (a) the
record owner(s) of all shares Beneficially Owned by the persons who those
Directors reasonably believe is a Related Person, (b) the number of, and class
or series of, shares Beneficially Owned by any such person who those Directors
reasonably believe is a Related Person and held of record by each such record
owner and the number(s) of the stock certificates(s) evidencing such shares and
(c) any other factual matter relating to the applicability or effect of this
Article as may reasonably be requested of such person, and that person shall
furnish that information within ten days after receipt of the demand.
ARTICLE ELEVEN
The provisions set forth in Articles Six, Eight and Nine hereof may not be
amended, altered, changed, repealed or rescinded in any respect unless such
action is approved by the affirmative vote of the holders of not less than 75%
of all shares of "Voting Stock" (as defined in Article Ten), considered for
purposes of this Article as one class; the amendment, alteration, change, repeal
or recision of this Article and Article Ten hereof shall require both such 75%
vote and the affirmative vote of the holders of not less than 50% of such Voting
Stock, excluding the vote of any shares owned by a "Related Person" (as defined
in Article Ten), if any (such 50% voting requirement shall not be applicable if
such amendment, alteration, change, repeal or recision is approved by the
affirmative vote of the holders of not less than 90% of such Voting Stock). The
voting requirement contained in this Article and in Articles Six, Eight, Nine
and Ten hereof shall be in addition to voting requirements imposed by law, other
provisions of these Articles of Incorporation or any designation of preferences
in favor of certain classes or series of classes of shares of capital stock of
the Company.
Restated Articles of Incorporation of EEX Corporation
Page 16 of 17
EXECUTED as of the 24th day of February, 1998.
EEX CORPORATION
By: (s) J. K. Hartrick
------------------
J. K. Hartrick
Senior Vice President,
General Counsel and Secretary
Restated Articles of Incorporation of EEX Corporation
Page 17 of 17