Exhibit 3.1
CERTIFICATE OF INCORPORATION
of
PENNACO ENERGY, INC.
The undersigned person, acting as sole incorporator of the corporation
pursuant to the General Corporation Law of the State of Delaware, does hereby
make this Certificate of Incorporation ("Certificate of Incorporation") for such
corporation, declaring and certifying that this is my act and deed and that the
facts herein stated are true:
ARTICLE I
NAME
The name of the corporation is Pennaco Energy, Inc. (hereinafter, the
"Corporation").
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, Wilmington, County of New Castle, 19801. The
name of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
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ARTICLE IV
CAPITAL STOCK
Section 1. Authorized Shares. The total number of shares of stock
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which the Corporation shall have authority to issue is Sixty Million
(60,000,000) shares consisting of Fifty Million (50,000,000) shares of common
stock, par value $.001 per share, and Ten Million (10,000,000) shares of
preferred stock, par value $.001 per share.
Section 2. Voting Rights of Stockholders. Each holder of the
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Common Stock shall be entitled to one vote for each share of stock standing in
his name on the books of the Corporation.
Section 3. Consideration for Shares. The Common Stock shall be
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issued for such consideration, as shall be fixed from time to time by the Board
of Directors. In the absence of fraud, the judgment of the directors as to the
value of any property for shares shall be conclusive. When shares are issued
upon payment of the consideration fixed by the Board of Directors, such shares
shall be taken to be fully paid stock and shall be non-assessable. The
Certificate of Incorporation shall not be amended in this particular.
Section 4. Pre-emptive Rights. Except as may otherwise be
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provided by the Board of Directors, no holder of any shares of the stock of the
Corporation shall have any preemptive right to purchase, subscribe for, or
otherwise acquire any shares of stock of the Corporation of any class now or
hereafter authorized, or any securities exchangeable for or convertible into
such shares, or any warrants or other instruments evidencing rights or options
to subscribe for, purchase, or otherwise acquire such shares.
Section 5. Stock Rights and Options. The Corporation shall have
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the power to create and issue rights, warrants, or options entitling the holders
thereof to purchase from the Corporation any shares of its capital stock of any
class or classes, upon such terms and conditions and at such times and prices as
the Board of Directors may provide, which terms and conditions shall be
incorporated in an instrument or instruments evidencing such rights. In the
absence of fraud, the judgment of the directors as to the adequacy of
consideration for the issuance of such rights or options and the sufficiency
thereof shall be conclusive.
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Section 6. Preferred Stock. The Corporation shall have authority
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to issue a total of ten million (10,000,000) shares of Preferred Stock. The
Preferred Stock may be issued from time to time as herein provided in one or
more series. The designations, relative rights, preferences and limitations of
the Preferred Stock, and particularly of the shares of each series thereof, may,
to the extent permitted by law, be similar to or differ from those of any other
series. The Board of Directors of the Corporation or a duly authorized
committee thereof is hereby expressly granted authority, subject to the
provisions of this Article IV, to fix by resolution from time to time before
issuance thereof the number of shares in each series of such class and all
designations, preferences, relative participating, optional or other special
rights and qualifications, limitations and restrictions of the shares in each
such series, including, but without limiting the generality of the foregoing,
the following:
(a) the designation of the series and the number of shares to
constitute such series (which number may be increased or decreased from time to
time unless otherwise provided by the Board of Directors);
(b) the dividend rate (or method of determining such rate), any
conditions on which and times at which dividends are payable, the preference or
relation which such dividends shall bear to the dividends payable on any other
class or classes or of any other series of capital stock including the Preferred
Stock, and whether such dividends shall be cumulative or noncumulative;
(c) whether the series will be redeemable (at the option of the
Corporation or the holders of such shares or both, or upon the happening of a
specified event) and, if so, the redemption prices and the conditions and times
upon which redemption may take place and whether for cash, property or rights,
including securities of the company or another corporation;
(d) the terms and amount of any sinking, retirement or purchase fund;
(e) the conversion or exchange rights (at the option of the
Corporation or the holders of such shares or both, or upon the happening of a
specified event), if any, including the conversion or exchange times, prices,
rates, adjustments and other terms of conversion or exchange;
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(f) the voting rights, if any (other than any voting rights that the
Preferred Stock may have as a matter of law);
(g) any restrictions on the issue or reissue or sale of additional
Preferred Stock;
(h) the rights of the holders upon voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation
(including preferences over the Common Stock or other class or classes or series
of capital stock including the Preferred Stock);
(i) the preemptive rights, if any, to subscribe to additional issues
of stock or securities of the Corporation; and
(j) such other special rights and privileges, if any, for the benefit
of the holders of the Preferred Stock, as shall not be inconsistent with the
provisions of these Certificate of Incorporation, as amended, or applicable law.
All shares of Preferred Stock of the same series shall be identical in
all respects, except that shares of any one series issued at different times may
differ as to dates, if any, from which dividends thereon may accumulate. All
shares of Preferred Stock redeemed, purchased or otherwise acquired by the
Corporation (including shares surrendered for conversion) shall be canceled and
thereupon restored to the status of authorized but unissued shares of Preferred
Stock undesignated as to series.
Except as otherwise may be required by law, and except as otherwise
may be provided in this Certificate of Incorporation, as amended, or in the
resolution of the Board of Directors of the Corporation creating any series of
Preferred Stock, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, each holder of the Common
Stock being entitled to one vote for each share thereof held.
Except as may be stated and expressed in any resolution or resolutions
of the Board of Directors providing for the issue of any series of Preferred
Stock, (i) any amendment to this Certificate of Incorporation which shall
increase or decrease the number of shares of any class or classes of authorized
capital stock of the Corporation (but not below the number of shares thereof
then outstanding) may be adopted by the affirmative vote of the holders of a
majority of the
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outstanding shares of the voting stock of the Corporation, and (ii) no holder of
capital stock shall be entitled as a matter of right to subscribe for or
purchase, or have any preemptive right with respect to, any part of any new or
additional issue of stock of any class whatsoever, or of securities convertible
into any stock of any class whatsoever, whether now or hereafter authorized and
whether issued for cash or other consideration or by way of dividend.
ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator are:
Paul M. Rady
1050 17/th/ Street., Suite 700
Denver, Colorado 80265
ARTICLE VI
DIRECTORS
The powers of the incorporator shall terminate upon the filing of the
Certificate of Incorporation. The name and mailing address of the person who is
to serve as the director of the Corporation until the first annual meeting of
stockholders or until his successor is elected and qualified are:
Name Address
Paul M. Rady 1050 17/th/ Street., Suite 700
Denver, Colorado 80265
For the management of the business and for the conduct of the affairs
of the Corporation, and for the future definition, limitation, and regulation of
the powers of the Corporation and its directors and stockholders, it is further
provided:
Section 1. Classification of Board. The Board of Directors shall
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be divided into three classes, designated Class I, Class II and Class III, as
nearly equal in number as possible, and the term of office of directors of one
class shall expire at each annual meeting of stockholders,
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and in all cases as to each director until his successor shall be elected and
shall qualify or until his earlier resignation, removal from office, death or
incapacity. Additional directorships resulting from an increase in number of
directors shall be apportioned among the classes as equally as possible. The
initial term of office of directors of Class I shall expire at the annual
meeting of stockholders in 2000; that of Class II shall expire at the annual
meeting in 2001; and that of Class III shall expire at the annual meeting in
2002; and in all cases as to each director until his successor shall be elected
and shall qualify or until his earlier resignation, removal from office, death
or incapacity. At each annual meeting of stockholders the number of directors
equal to the number of directors of the class whose term expires at the time of
such meeting (or, if less, the number of directors properly nominated and
qualified for election) shall be elected to hold office until the third
succeeding annual meeting of stockholders after their election.
Section 2. Size of Board. The members of the governing board of
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the Corporation shall be styled directors. The number of directors of the
Corporation, their qualifications, manner of election, time and place of
meeting, and powers and duties shall be such as are prescribed by this
Certificate of Incorporation, by statute and in the Bylaws of the Corporation.
Section 3. Powers of Board of Directors. In furtherance and not
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in limitation of the powers conferred by the laws of the State of Delaware, the
Board of Directors is expressly authorized and empowered:
(a) To make, alter, amend, and repeal the Bylaws subject to the power
of the stockholders to alter or repeal the Bylaws made by the Board of
Directors.
(b) Subject to the applicable provisions of the Bylaws then in
effect, to determine, from time to time, whether and to what extent, and at what
times and places, and under what conditions and regulations, the accounts and
books of the Corporation, or any of them, shall be open to stockholder
inspection. No stockholder shall have any right to inspect any of the accounts,
books or documents of the Corporation, except as permitted by law, unless and
until authorized to do so by resolution of the Board of Directors or of the
stockholders of the Corporation.
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(c) To issue stock of the Corporation for money, property, services
rendered, labor performed, cash advanced, acquisitions for other corporations or
for any other assets of value in accordance with the action of the Board of
Directors without vote or consent of the stockholders and the judgment of the
Board of Directors as to value received and in return therefore shall be
conclusive and said stock, when issued, shall be fully-paid and non-assessable.
(d) To authorize and issue, without stockholder consent, obligations
of the Corporation, secured and unsecured, under such terms and conditions as
the Board of Directors, in its sole discretion, may determine, and to pledge or
mortgage, as security therefore, any real or personal property of the
Corporation, including after-acquired property.
(e) To determine whether any and, if so, what part, of the earned
surplus of the Corporation shall be paid in dividends to the stockholders, and
to direct and determine other use and disposition of any such earned surplus.
(f) To fix, from time to time, the amount of the profits of the
Corporation to be reserved as working capital or for any other lawful purpose.
(g) To establish bonus, profit-sharing, stock option, or other types
of incentive compensation plans for the employees, including officers and
directors, of the Corporation, and to fix the amount of profits to be shared or
distributed, and to determine the persons to participate in any such plans an
the amount of their respective participations.
(h) To designate, by resolution or resolutions passed by a majority
of the whole Board of Directors, one or more committees, which, to the extent
permitted by law and authorized by the resolution or the Bylaws, shall have and
may exercise the powers of the Board of Directors.
(i) To provide for the reasonable compensation of its own members by
Bylaw, and to fix the terms and conditions upon which such compensation will be
paid.
(j) In addition to the powers and authority herein before, or by
statute, expressly conferred upon it, the Board of Directors may exercise all
such powers and do all such acts and things as may be exercised or done by the
Corporation, subject nevertheless, to the provisions of
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the laws of the State of Delaware, of this Certificate of Incorporation, and of
the Bylaws of the Corporation.
Section 4. Interested Directors. No contract or transaction
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between this Corporation and any of its directors, or between this Corporation
and any other corporation, firm, association, or other legal entity shall be
invalidated by reason of the fact that the director of the Corporation has a
direct or indirect interest, pecuniary or otherwise, in such corporation, firm,
association, or legal entity, or because the interested director was present at
the meeting of the Board of Directors which acted upon or in reference to such
contract or transaction, or because he participated in such action, provided
that (1) the interest of each such director shall have been disclosed to or
known by the Board of Directors and a disinterested majority of the Board of
Directors shall have nonetheless ratified and approved such contract or
transaction (such interested director or directors may be counted in determining
whether a quorum is present for the meeting at which such ratification or
approval is given); or (2) the conditions of Section 144 of the Delaware General
Corporation Law are met.
ARTICLE VII
NO STOCKHOLDER ACTION WITHOUT MEETING
No action required or permitted to be taken at any annual meeting or
special meeting of the stockholders may be taken without a meeting and the power
of stockholders to consent in writing, without a meeting, to the taking of any
action is specifically denied. Special meetings of the stockholders of the
Corporation may be called only by the Chairman of the Board or the President of
the Corporation or by resolution adopted by the affirmative vote of the Board of
Directors.
ARTICLE VIII
LIMITATION OF LIABILITY OF OFFICERS OR DIRECTORS
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 General Corporation Law of the
State of Delaware, or (iv) for
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any transaction from which the director derived an improper personal benefit. If
the General Corporation Law of the State of Delaware is amended 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 General Corporation
Law of the State of Delaware, as so amended. Any repeal or modification of this
paragraph 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.
ARTICLE IX
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by the General
Corporation Law of the State of Delaware (including, without limitation, Section
145 thereof), as amended from time to time, indemnify any officer or director
whom it shall have power to indemnify from and against any and all of the
expenses, liabilities or other losses of any nature. The indemnification
provided in this Article X shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity, while holding
such office, and shall continue as to a person who has ceased to be a officer or
director and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE X
PLACE OF MEETING; CORPORATE BOOKS
Subject to the laws of the State of Delaware, the stockholders and the
directors shall have power to hold their meetings, and the directors shall have
power to have an office or offices and to maintain the books of the Corporation
outside the State of Delaware, at such place or places as may from time to time
be designated in the Bylaws or by appropriate resolution.
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ARTICLE XI
AMENDMENT OF CERTIFICATION OF INCORPORATION
Notwithstanding any other provision of this Certificate of
Incorporation, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of all of the then outstanding
shares of the stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
amend in any respect or repeal this Article XII, or Articles IV, VIII, IX and
XIII. All rights herein conferred on the directors, officers and stockholders
are granted subject to this reservation.
ARTICLE XII
AMENDMENT OF BYLAWS
The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation, provided, however, that any adoption,
amendment or repeal of Bylaws of the Corporation by the Board of Directors shall
require the approval of at least sixty-six and two-thirds percent (66 2/3%) of
the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board of
Directors). The stockholders shall also have power to adopt, amend or repeal
Bylaws of the Corporation, provided, however, that in addition to any vote of
the holders of any class or series of stock of this Corporation required by this
Certificate of Incorporation the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the voting power of all of the
then outstanding shares of the stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required for such adoption, amendment or repeal by the stockholders of any
provisions of the Bylaws of the Corporation.
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I, THE UNDERSIGNED, hereunto set my hand this 31st day of March, 2000.
/s/ Paul M. Rady
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Paul M. Rady
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