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EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
TRI-UNION DEVELOPMENT CORPORATION
ARTICLE ONE
The name of the corporation is Tri-Union Development Corporation.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose for which the Corporation is organized is the transaction
of any or all lawful business for which corporations may be incorporated under
the Texas Business Corporation Act.
ARTICLE FOUR
The aggregate number of authorized shares of capital stock which the
Corporation shall have the authority to issue shall be 510,000 shares, which
shall consist of 445,000 shares of Class A Common Stock, $0.01 par value per
share (as such number may be increased pursuant to this Article Four), and
65,000 shares of Class B Common Stock, $0.01 par value per share. The Class A
Common Stock and the Class B Common Stock are referred to collectively as Common
Stock.
The number of authorized shares of any class or classes of capital
stock of the Corporation may be increased or decreased (but not below the number
of shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote thereon. Except as
otherwise required by law or expressly provided for herein, the powers, rights,
and preferences of the shares of Common Stock and the qualifications,
limitations, or restrictions thereof, shall be in all respects identical.
No shareholder of the Corporation shall have the right of cumulative
voting at any election of directors or upon any other matter. No holder of
securities of the Corporation shall be entitled as a matter of right, preemptive
or otherwise, to subscribe for or purchase any securities of the Corporation now
or hereafter authorized to be issued, or securities held in the treasury of the
Corporation, whether issued or sold for cash or other consideration or as a
dividend or otherwise. Any such security may be issued or disposed of by the
board of directors to such persons and on such terms as in its discretion it
shall deem advisable.
The relative rights, powers, preferences, qualifications, limitations,
and restrictions of the Class A Common Stock and the Class B Common Stock shall
be as follows:
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(a) Voting Rights.
(i) Each share of Class A Common Stock and each share of
Class B Common Stock shall be entitled to one vote at
each meeting of the shareholders of the Corporation
(and for purposes of written actions of shareholders
in lieu of meetings) with respect to any and all
matters presented to the shareholders of the
Corporation for their action or consideration, and
shall be entitled to notice of any shareholders'
meeting in accordance with the bylaws of the
Corporation. Except as otherwise provided herein or
required by law, holders of shares of Class B Common
Stock shall vote with the holders of shares of Class
A Common Stock and any other class of stock entitled
to vote with the holders of Common Stock and not as a
separate class. Except as otherwise provided herein
or by law, all actions submitted to a vote of the
holders of any or all classes of stock of the
Corporation shall require the approval of both (i)
the holders of a majority of the Class A Common Stock
and Class B Common Stock, voting together as a single
class, and (ii) the holders of a majority of the
Class B Common Stock, voting as a separate class.
(ii) The holders of a majority of the Class B Common
Stock, voting as a separate class, shall be entitled
to (a) designate one person to serve as a non-voting
advisory observer to the Corporation's board of
directors, and (b) elect to the board of directors at
any time a number of directors sufficient to
constitute a majority of the total number of
directors. The directors elected by the holders of
Class B Common Stock pursuant to this section may
only be removed, with or without cause, by the vote
of the holders of a majority of the Class B Common
Stock.
(iii) In addition to any approval required by law, any
amendment to the bylaws of the Corporation shall
require the approval of the holders of a majority of
the issued and outstanding shares of the Class B
Common Stock.
(b) Conversion. The Class A Common Stock shall have no conversion
rights. Each share of Class B Common Stock shall automatically
convert into one fully paid and nonassessable share of Class A
Common Stock upon the earliest to occur of:
(i) the disposition of beneficial ownership (as defined
in rules promulgated pursuant to the Securities
Exchange Act of 1934, as amended) of such share of
Class B Common Stock by the holder thereof, unless
such disposition was to an affiliate (as defined
below) of such holder;
(ii) the repayment, repurchase, or retirement of all of
the Series A 12.5% Senior Secured Notes and Series B
12.5% Senior Secured Notes issued in exchange
therefore of the Corporation issued June 18, 2001
(the "Notes"); or
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(iii) the written consent, delivered to the Corporation, by
the holders of a majority of the outstanding shares
of Class B Common Stock. Such consent shall be given
by the holders of Class B Common Stock if (a) the
Notes achieve a rating of B or better by Standard &
Poor's Ratings Services or B2 or better by Moody's
Investors Service, Inc., or (b) the initial purchaser
of the Class B Common Stock, together with its
affiliates (as defined below), owns beneficially or
of record less than ten percent (10%) of the Class B
Common Stock originally issued, in each case as
determined in good faith by the holders of a majority
of the Class B Common Stock.
After all authorized shares of Class B Common Stock are
originally issued, no subsequent reissuances of Class B Common
Stock will occur on account of there being Class B Common
Stock available for issuance due to conversion of Class B
Common Stock to Class A Common Stock, or repurchase,
redemption, or other acquisition of by the Company of shares
Class B Common Stock. Each certificate for such converted,
repurchased, redeemed, or acquired shares of Class B Common
Stock shall be deemed retired and canceled by the Corporation,
notwithstanding the failure of the holder thereof to surrender
such certificate for cancellation or exchange.
(c) Dividend and Liquidation Rights. The holders of Common Stock
shall be entitled to receive, when and if declared by the
board of directors of the Corporation, dividends, out of the
funds legally available therefor, in such amounts as the board
of directors may from time to time fix and determine, in its
sole and absolute discretion. All dividends or distributions
made on the Common Stock shall be made to all holders of
Common Stock ratably in proportion to the number of shares of
Common Stock then held by them. Upon the liquidation,
dissolution, or winding up of the affairs of the Corporation,
whether voluntary or involuntary, the holders of Common Stock
shall be entitled to receive all assets of the Corporation
available for distribution to shareholders, ratably in
proportion to the number of shares of Common Stock held by
them, after payment or provision for all liabilities and any
preferential rights.
(d) Co-Sale Provisions. No holder of Common Stock who, together
with such holder's affiliates and related persons, owns more
than 40% of the issued and outstanding Common Stock (a
"Principal Holder"), may transfer any of such shares of Common
Stock, directly or indirectly, for value unless and until such
holder has complied with the following: The transferring
Principal Holder (the "Transferor") must first offer (the
"Participation Offer") to include in the proposed transfer a
number of shares of Common Stock designated by any shareholder
other than the Transferor (each, a "Potential Co-Sale
Person"), not to exceed, in respect of any such Potential
Co-Sale Person, the product (rounded to the nearest whole
share) of (A) the aggregate number of shares of Common Stock
to be sold to the proposed transferee (the "Proposed
Transferee") and (B) a fraction with the numerator equal to
the number of shares of Common Stock owned by such Potential
Co-Sale Person and the denominator equal to the number of
shares of Common Stock then outstanding.
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The Transferor shall give written notice to each Potential
Co-Sale Person of the Participation Offer (the "Transferor's
Notice"). The Transferor shall deliver such notice to each
record holder of shares of Common Stock at the address set
forth in the Corporation's records for each such holder. The
Transferor's Notice shall be delivered to each record holder
of shares at least 30 days (or such longer period as may be
required by applicable law) prior to the proposed transfer in
a manner reasonably calculated to give prompt notice of such
Participation Offer to each beneficial holder of the shares.
The Transferor's Notice shall specify the Proposed Transferee,
the number of shares of Common Stock to be transferred to such
Proposed Transferee, the amount and type of consideration to
be received therefor, and the place and date on which the
transfer is to be consummated.
Each Potential Co-Sale Person who wishes to include Common
Stock in the proposed transfer shall so notify the Transferor
not more than 15 days after its receipt of the Transferor'S
Notice. The Participation Offer shall be conditioned upon the
Transferor's transfer of shares pursuant to the transactions
contemplated in the Transferor's Notice with the Proposed
Transferee named therein. If any Potential Co-Sale Person has
accepted the Participation Offer, the Transferor shall reduce
to the extent necessary the number of shares of Common Stock
it otherwise would have sold in the proposed transfer so as to
permit each Potential Co-Sale Person to sell the number of
shares that it is entitled to sell under these provisions, and
the Transferor and each Potential Co-Sale Person shall
transfer the number of shares specified in the Participation
Offer to the Proposed Transferee in accordance with the terms
set forth in the Transferor's Notice (it being acknowledged
that in no event shall the Transferor be obligated to transfer
any securities). For purposes of the foregoing provisions,
Class A Common Stock and Class B Common Stock will be treated
equally.
The shares to be sold shall be transferred by the Transferor
and each participating Potential Co-Sale Person to the
transferee at the headquarters of the Corporation by the
surrender for transfer of such shares to the Company or the
transferee against payment of the purchase price therefor in
immediately available funds to accounts designated by the
Transferor and each Potential Co-Sale Person. The closing of
such transfer shall be on the same date that the transferee
acquires shares from the Transferor, but in no event shall the
Transferor transfer shares prior to fifteen (15) days after
giving notice of such closing date to each Potential Co-Sale
Person. Each participating Potential Co-Sale Person shall not
be required to make any representations or warranties in
connection with such transfer other than representations and
warranties as to (i) ownership of the shares to be transferred
by such Potential Co-Sale Person free and clear of all liens,
claims and encumbrances, (ii) such person's power and
authority to effect such transfer, and (iii) such matters
pertaining to compliance with applicable securities laws as
the transferee may reasonably require. To the extent that any
prospective transferee prohibits such assignment or otherwise
refuses to purchase shares from any participating Potential
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Co-Sale Person, the Transferor shall not sell to such
prospective transferee any shares unless and until,
simultaneously with such sale, the Transferor shall have
purchased the shares to be sold by the participating Potential
Co-Sale Persons for the same price set forth in the
Transferor's Notice.
As used herein, "transfer" means any direct or indirect,
transfer, assignment, sale, gift, pledge, hypothecation or
other encumbrance, or any other disposition (whether voluntary
or involuntary or by operation of law), including without
limitation derivative or similar transactions or arrangements
whereby a portion or all of the economic interest in, or risk
of loss or opportunity for gain with respect to, Common Stock
is transferred or shifted to another party; provided, however,
that an exchange, merger, recapitalization, consolidation or
reorganization involving the Corporation in which securities
of the Corporation or any other party are issued in respect of
shares of the Common Stock shall not be deemed a transfer if
all shares of Common Stock are treated identically in such
transaction. As used herein, "related person" means with
respect to any person, (i) such person's parents, grandparents
or the lineal descendant of any parent or grandparent (in each
case whether by birth or adoption, in law or otherwise), (ii)
any spouse of any of the persons described in (i) above, (iii)
any substantial business relation of such person, and (iv) any
person or entity that acquires shares of Common Stock from
such person by will, devise or intestate succession or by any
other means that is not an arms-length transaction for fair
value. As used herein, "affiliate" means, with respect to a
specified person, any person that directly or indirectly
through one or more intermediaries controls, is controlled by
or is under common control with the specified person.
The foregoing co-sale provision will terminate when none of
the Class B Common Stock remains outstanding.
(e) Recapitalization, Reorganization, Etc. In the event of a share
split, subdivision, combination, reorganization,
reclassification or other similar transaction as a result of
which the shares of any class of Common Stock are split,
subdivided, combined, reorganized, reclassified or converted
into another security, or a consolidation, merger, combination
or other transaction in which the shares of any class of
Common Stock are exchanged for or changed into other stock or
securities, then each class of Common Stock shall be treated
equally in such event or transaction.
ARTICLE FIVE
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of one thousand dollars
($1,000) consisting of money, labor done, or property actually received.
ARTICLE SIX
The street address of the registered office of the Corporation is 530
Lovett Boulevard, Houston, Texas 77006-4021, and the name of the registered
agent of the Corporation at that address is Richard Bowman.
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ARTICLE SEVEN
The current number of Directors constituting the board of directors is
one. The name and address of the person who is serving as a director until the
next annual or special meeting of the shareholders or until his successor is
elected and qualified is:
Richard Bowman
530 Lovett Boulevard
Houston, Texas 77006-4021
ARTICLE EIGHT
Pursuant to Article 9.10.A of the Texas Business Corporation Act, any
action required to be taken at any annual or special meeting of shareholders, or
any action which may be taken at any annual or special meeting of shareholders,
may be taken without a meeting, without prior notice, and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall have
been signed by the holder or holders of shares having not less than the minimum
number of votes would be necessary to take such action at a meeting which the
holders of all shares entitled to vote on the action were present and voted.
ARTICLE NINE
To the fullest extent permitted by Texas statutes, as the same exist or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits broader limitations than permitted prior to
such amendment), a director of the Corporation shall not be liable to the
Corporation or its shareholders for monetary damages for an act or omission in
the director's capacity as a director. Any repeal or amendment of this Article
by the shareholders 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 amendment.
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IN WITNESS WHEREOF, the undersigned has executed these Amended
and Restated Articles of Incorporation on behalf of the Corporation as of the
____ day of July, 2001.
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Richard Bowman, President