Exhibit 3.1
PAGE 1
DELAWARE
The First State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "APACHE CORPORATION", FILED IN THIS OFFICE ON THE TWELFTH DAY OF
FEBRUARY, A.D. 2004, AT 10:06 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[Seal]
/s/ Harriet Smith Windsor
-----------------------------
Harriet Smith Windsor,
Secretary of State
AUTHENTICATION: 2926444
0482215 8100 DATE: 02-12-04
040098414
State of Delaware
Secretary of State
Division of Corporations
Delivered 10:07 AM 02/12/2004
Filed 10:06 AM 02/12/2004
SRV 040098414 - 0482215 FILE
RESTATED
CERTIFICATE OF INCORPORATION
OF
APACHE CORPORATION
APACHE CORPORATION, a corporation organized and existing under the laws of
the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Apache Corporation and the name under
which the corporation was originally incorporated was Apache Oil Corporation.
The date of filing of its original Certificate of Incorporation with the
Secretary of State was the 6th day of December, 1954.
2. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Certificate of Incorporation of
this corporation as heretofore amended or supplemented, and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Certificate of Incorporation, as amended or
supplemented heretofore, is hereby restated without further amendments or
changes to read as herein set forth in full:
FIRST. The name of the corporation is APACHE CORPORATION.
SECOND. The Registered Office in the state of Delaware is located at the
Corporation Trust Center, 1209 Orange Street, in the county of New Castle,
Wilmington, Delaware 19801. The Registered Agent at that address is The
Corporation Trust Company.
THIRD. The nature of the business, or objects or purposes to be
transacted, promoted or carried on are: To engage in the leasing as principal,
trustee, agent and/or nominee of lands believed to contain petroleum, oils, and
gas; the improving, mortgaging, leasing, assigning, and otherwise disposing of
the same; the prospecting, drilling, pumping, piping, storing, refining, and
selling, both at wholesale and retail, of oils and gas; the buying, otherwise
acquiring, selling, and otherwise disposing of any and all real estate and
personal property for use in the business of the company; the construction of
any and all buildings, pipe lines, pumping stations, and storage tanks, and any
and all other buildings required in carrying on the business of the company; the
acting as trustee or agent for holders of oil lands in the receiving and
disbursement of funds to be used in drilling for the common benefit of the land
holders.
To buy, acquire, sell, retain, deal in, or otherwise dispose of absolutely
or contingently, petroleum and/or gas properties and interests (whether like or
different), and any right, title, or interest therein.
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To purchase, sell and own royalties in oil and gas lands and leases; to pay
mortgages, notes, taxes, assessments, and other charges that are or may become a
lien or charge against any lands or leases in which this company may have a
royalty interest.
To engage in the purchasing, leasing or otherwise acquiring, owning,
holding, operating, developing, mortgaging, pledging, exchanging, selling,
transferring, or otherwise disposing of, and investing, trading or dealing in
real and personal property of every kind and description or any interest
therein; the acting as trustee or agent for holders of interests in such real
and personal property in the receiving and disbursement of funds to be used in
connection therewith.
To act as agent for others in purchasing, selling, renting and managing
real estate and leasehold or other interests therein; in negotiating loans on
real estate and leasehold or other interests therein, in lending money secured
by bonds or notes secured by mortgages or trust deeds on such real estate or
leasehold or other interest therein, or on the mortgage bonds of industrial or
railroad companies or of any public service corporation, or on any state,
municipal or quasi-municipal bonds, or in the buying, selling, pledging,
mortgaging or otherwise dealing in any such securities, and to act as trustee in
connection with any of the foregoing securities.
To carry on the business of a telephone, telegraph, radio, television,
electrical light, heat and power, natural gas heat and power, and/or water
supply company, and in establishing, working, managing, controlling and
regulating exchanges and works for the supply and transmission of telephone,
telegraph, radio and television impulses, and for the supply of electric light,
heat and power, natural gas heat and power, and/or water for public or private
purposes, use and consumption.
To engage in the underwriting, buying, selling and rediscounting of notes,
drafts, bills of exchange, stocks, bonds, securities and chooses in action as a
broker and dealer in securities.
To acquire, and pay for in cash, stock or bonds of this Corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses, franchises and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating to
or useful in connection with any business of this corporation.
To acquire by purchase subscription, participation, or otherwise, and to
receive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the shares of the
capital stock, or any voting trust certificates in respect of the shares of
capital stock, script, warrants, rights, bonds, debentures, notes, trust
receipts, and other securities, obligations, chooses in action and evidences of
indebtedness or interest issued or created by any corporations, joint stock
companies, partnerships, limited partnerships, syndicates, associations, firms,
trusts or persons, public or private, or by the government of the United States
of America, or by any foreign government, or by any state,
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territory, province, municipality or other political subdivision or by any
governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
To enter into, make and perform contracts of every kind and description
with any person, firm, association, corporation, municipality, county, state,
body politic or government or colony or dependency thereof.
To borrow or raise monies for any of the purposes of the Corporation and,
from time to time to draw, make, accept, endorse, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or non-negotiable instruments and evidences of indebtedness, and to
secure the payment of any thereof and of the interest thereon by mortgage upon
or pledge, conveyance or assignment in trust of the whole or any part of the
property of the Corporation, whether at the time owned or thereafter acquired,
and to sell, pledge or otherwise dispose of such bonds or other obligations of
the Corporation for its corporate purposes.
To purchase, hold, sell and transfer the shares of its own capital stock;
provided it shall not use its funds or property for the purchase of its own
shares of capital stock when such use would cause any impairment of its capital
except as otherwise permitted by law, and provided further that shares of its
own capital stock belonging to it shall not be voted upon directly or
indirectly.
To have one or more offices, to carry on all or any of its operations and
business and to purchase or otherwise acquire, hold, own, mortgage, sell, convey
or otherwise dispose of, real and personal property of every class and
description in any of the states, districts, territories or colonies of the
United States, and in any and all foreign countries, subject to the laws of such
state, district, territory, colony or country.
In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the powers conferred by the laws of
Delaware upon corporations formed under the General Corporation Law of the State
of Delaware, and to do any or all things hereinbefore set forth to the same
extent as natural persons might or could do.
The objects and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in no wise limited or restricted by reference
from, the terms of any other clause in this Certificate of Incorporation, but
the objects and purposes specified in each of the foregoing clauses of this
article shall be regarded as independent objects and purposes.
FOURTH. The total number of shares of all classes of stock which this
corporation shall have authority to issue is 435,000,000 which shall be divided
into (a) 430,000,000 shares of common stock having a par value of $0.625 per
share and (b) 5,000,000 shares of no par value preferred stock.
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A description of the different classes of stock of the Corporation, a
statement of the relative rights of the holders of stock of such classes, and a
statement of the voting powers and the designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, of the various classes of stock are as follows:
A. Shares of the Preferred Stock may be issued by the Board of Directors
of the Corporation with such voting powers, full or limited or without voting
powers and in such classes and series and with such designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue of such stock
adopted by the Board of Directors of the Corporation.
B. A holder of the Common Stock of the Corporation shall be entitled to
one vote for each and every share of Common Stock standing in his name at any
and all meetings of stockholders of the Corporation.
C. Shares of the voting stock of the Corporation shall not be voted
cumulatively.
D. Except as provided in Paragraph A of this Article FOURTH, shares of
stock of the Corporation do not carry pre-emptive rights.
E. There shall be set forth on the face or back of each certificate for
shares of stock of the Corporation a statement that the Corporation will furnish
without charge to each stockholder who so requests, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights, provided, however, that there
shall be no lien in favor of the Corporation upon the shares represented by any
such certificate and there shall be no restriction upon the transfer of shares
so represented by virtue of any by-law of the Corporation unless such lien or
restriction is stated upon the certificate.
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
1. Designation and Amount. There shall be a series of Preferred
Stock, no par value per share, that shall be designated as "Series A
Junior Participating Preferred Stock," and the number of whole shares
constituting such series shall be 25,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided,
however, that no decrease shall reduce the number of shares of Series A
Junior Participating Preferred Stock to less than the number of shares
then issued and outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants, or upon conversion of
outstanding securities issued by the Corporation.
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2. Dividends and Distribution.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to
the shares of Series A Junior Participating Preferred Stock with respect
to dividends, the holders of record of shares of Series A Junior
Participating Preferred Stock as of the close of business on the last
Business Day of December, March, June and September in each year, in
preference to the holders of shares of any class or series of stock of the
Corporation ranking junior to the Series A Junior Participating 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, quarterly
dividends payable in cash on the last Business Day of January, April, July
and October in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Series A Junior Participating Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $100 or
(b) the Adjustment Number (as defined below) times the aggregate per share
amount of all cash dividends, and the Adjustment Number times the
aggregate per share amount (payable in kind) 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 on the Common Stock, par value
$1.25 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred
Stock. The "Adjustment Number" shall initially be 10,000. In the event the
Corporation shall at any time after January 31, 1995 (the "Effective
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 Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment 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 Corporation shall declare a dividend or distribution on
the Series A Junior Participating Preferred Stock as provided in paragraph
(A) above immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock).
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of
such shares of Series A Junior Participating Preferred Stock, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend
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Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior Participating Preferred
Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders
of shares of Series A Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which
record date shall be no more than 60 days prior to the date fixed for the
payment thereof.
3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Each share of Series A Junior Participating Preferred Stock
shall entitle the holder thereof to a number of votes equal to the
Adjustment Number on all matters submitted to a vote of the stockholders
of the Corporation.
(B) Except as required by law and by Section 10 hereof, holders
of Series A Junior Participating Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock
as provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on shares
of Series A Junior Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series
A Junior Participating Preferred Stock, except dividends paid ratably on
the Series A Junior Participating
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Preferred Stock and all such parity stock on which dividends are payable
or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled; or
(iii) purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Stock, or any shares of
stock ranking on a parity with the Series A Junior Participating Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
Series A Junior Participating Preferred Stock, or to such holders and
holders of any such shares ranking on a parity therewith, upon such terms
as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary or other
affiliate controlled by the Corporation to purchase or otherwise acquire
for consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
5. Reacquired Shares. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired promptly after the acquisition thereof.
All such shares shall upon their retirement become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to any conditions and restrictions on issuance set
forth herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation
(voluntary or otherwise), dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred
Stock shall have received $100 per share, plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the holders of
shares of Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Common Stock shall have received an
amount per share (the "Common Adjustment") equal to the quotient obtained
by dividing (i) the Series A Liquidation Preference by (ii) the Adjustment
Number. Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of (1) Series A Junior Participating Preferred Stock
and (2) Common Stock, respectively, (a) holders
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of Series A Junior Participating Preferred Stock and (b) holders of shares
of Common Stock shall, subject to the prior rights of all other series of
Preferred Stock, if any, ranking prior thereto, receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio
of the Adjustment Number to 1 with respect to (x) the Series A Junior
Participating Preferred Stock and (y) the Common Stock, on a per share
basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of Preferred Stock, if
any, that rank on a parity with the Series A Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably
to the holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) Neither the merger or consolidation of the Corporation into
or with another corporation nor the merger or consolidation of any other
corporation into or with the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the
meaning of this Section 6.
7. Consolidation, Merger, Etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each
share of Series A Junior Participating Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per share equal to the
Adjustment Number times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into
which or for which each share of Common Stock is changed or exchanged.
8. No Redemption. Shares of Series A Junior Participating Preferred
Stock shall not be subject to redemption by the Company.
9. Ranking. The Series A Junior Participating Preferred Stock shall
rank junior to all other series of the Corporation's Preferred Stock as to
the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise, and shall rank senior to the
Common Stock as to such matters.
10. Amendment. At any time that any shares of Series A Junior
Participating Preferred Stock are outstanding, the Restated Certificate of
Incorporation of the Corporation shall not be amended in any manner which
would materially alter or change the powers, preferences or special rights
of the Series A Junior Participating Preferred Stock so as to affect them
adversely
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without the affirmative vote of the holders of two-thirds of the
outstanding shares of Series A Junior Participating Preferred Stock,
voting separately as a class.
11. Fractional Shares. Series A Junior Participating Preferred Stock
may be issued in fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series A Junior Participating Preferred
Stock.
5.68% CUMULATIVE PREFERRED STOCK, SERIES B
1. Number of Shares and Designation. One hundred thousand (100,000)
shares of the five million (5,000,000) authorized shares of no par value
preferred stock of the Corporation are hereby constituted as a series of
preferred stock, no par value per share, designated as "5.68% Cumulative
Preferred Stock, Series B" (hereinafter called the "Series B Preferred
Stock").
2. Ranking. The Series B Preferred Stock shall rank prior and
superior to all of the Common Stock of the Corporation now or hereafter
outstanding, and the Series A Junior Participating Preferred Stock of the
Corporation as to payment of dividends and distribution of assets upon
dissolution, liquidation or winding up of the Corporation.
3. Dividends.
(i) General. Cumulative cash dividends shall be payable on each
share of Series B Preferred Stock when, as and if declared by the Board of
Directors of the Corporation or a duly authorized committee thereof, out
of the assets of the Corporation legally available therefor.
The initial dividend for the dividend period commencing on August
25, 1998, to but excluding October 30, 1998, will be $10.26 per share and
shall be payable on October 30, 1998. Thereafter, dividends on the Series
B Preferred Stock shall be payable quarterly, when, as and if declared by
the Board of Directors of the Corporation or a duly authorized committee
thereof on the last business day of January, April, July and October of
each year (each a "Dividend Payment Date") at the annual rate of 5.68% or
$56.80 per share. The amount of dividends payable on each share of Series
B Preferred Stock for each full quarterly period shall be computed by
dividing the annual dividend rate by four. The amount of dividends payable
for any other period that is shorter or longer than a full quarterly
dividend period will be computed on the basis of a 360-day year consisting
of twelve 30-day months.
If a Dividend Payment Date is not a business day, dividends (if
declared) on the Series B Preferred Stock shall be paid on the next
business day, without interest. As used herein, the term "business day"
means any day other than a Saturday or Sunday or any other day on which
banks in The City of
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New York are authorized or required by law or executive order to close. A
dividend period with respect to a Dividend Payment Date is the period
commencing on the preceding Dividend Payment Date and ending on the day
immediately prior to the next Dividend Payment Date. Dividends payable, if
declared, on a Dividend Payment Date shall be payable to holders of record
as they appear on the stock books of the Corporation on the record date,
which shall be the fifteenth day of the calendar month in which the
applicable Dividend Payment Date falls (each, a "Dividend Record Date").
Dividends on the Series B Preferred Stock shall be cumulative if
the Corporation fails to declare one or more dividends on the Series B
Preferred Stock in any amount, whether or not the earnings or financial
condition of the Corporation were sufficient to pay such dividends in
whole or in part.
Holders of shares of Series B Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock, in
excess of full dividends (including accrued dividends, if any) on shares
of Series B Preferred Stock. No interest or sum of money in lieu of
interest shall be payable in respect of any dividend or payment which may
be in arrears.
Dividends in arrears on the Series B Preferred Stock payable, if
declared, but not declared for payment or paid on any Dividend Payment
Date may be declared by the Board of Directors of the Corporation or a
duly authorized committee thereof and paid on any date fixed by the Board
of Directors of the Corporation or a duly authorized committee thereof,
whether or not a Dividend Payment Date, to the holders of record of the
shares of Series B Preferred Stock, as they appear on the stock register
of the Corporation on such record date, which shall be not less than ten
nor more than 30 days prior to the payment date therefor, as shall be
fixed by the Board of Directors of the Corporation or a duly authorized
committee thereof.
(ii) Changes in the Dividends Received Percentage. If, prior to
18 months after the date of the original issuance of the Series B
Preferred Stock, one or more amendments to the U. S. Internal Revenue Code
of 1986, as amended (the "Code"), are enacted which change the percentage
of the dividends received deduction as specified in Section 243(a)(1) of
the Code or any successor provision (the "Dividends Received Percentage"),
the amount of each dividend on each share of the Series B Preferred Stock
for dividend payments made on or after the date of enactment of such
change shall be adjusted by multiplying the amount of the dividend payable
determined as described above (before adjustment) by a factor, which shall
be the number determined in accordance with the following formula (the
"DRD Formula"), and rounding the result to the nearest cent (with one-half
cent and above rounded up):
1-[.35 (1-.70)]
---------------
1-[.35 (1-DRP)]
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For the purposes of the DRD Formula, "DRP" means the Dividends
Received Percentage applicable to the dividend in question; provided
however, that if the Dividends Received Percentage applicable to the
dividend in question shall be less than 50%, then the DRP shall equal .50.
No amendment to the Code, other than a change in the percentage of the
dividends received deduction set forth in Section 243(a)(1) of the Code or
any successor provision, shall give rise to such an adjustment.
Notwithstanding the foregoing provisions, in the event that, with respect
to any such amendment, the Corporation receives either an unqualified
opinion from a nationally recognized independent tax counsel selected by
the Corporation or a private letter ruling or similar form of
authorization from the U.S. Internal Revenue Service ("IRS") to the effect
that such an amendment does not apply to dividends payable on the Series B
Preferred Stock, then any such amendment shall not result in the
adjustment provided for pursuant to the DRD Formula. The opinion
referenced in the previous sentence shall be based upon a specific
exception in the legislation amending the DRP or upon a published
pronouncement of the IRS addressing such legislation. Unless the context
otherwise requires, references to dividends herein shall mean dividends as
adjusted by the DRD Formula. The Corporation's calculation of the
dividends payable as so adjusted, and as certified accurate as to
calculation and reasonable as to method by the independent certified
public accountants then regularly engaged by the Corporation, shall be
final and not subject to review.
If any amendment to the Code which reduces the Dividends Received
Percentage is enacted after a Dividend Record Date and before the next
Dividend Payment Date, the amount of dividend payable on such Dividend
Payment Date shall not be increased; but instead, an amount equal to the
excess of (x) the product of the dividends paid by the Corporation on such
Dividend Payment Date and the DRD Formula (where the DRP used in the DRD
Formula would be equal to the greater of the Dividends Received Percentage
applicable to the dividend in question and .50) over (y) the dividends
paid by the Corporation on such Dividend Payment Date, shall be payable
(if declared) to holders of record on the next succeeding Dividend Payment
Date in addition to any other amounts payable on such date.
In addition, if any such amendment to the Code is enacted that
reduces the Dividends Received Percentage and such reduction retroactively
applies to a Dividend Payment Date as to which the Corporation previously
paid dividends on the Series B Preferred Stock (each an "Affected Dividend
Payment Date"), the Corporation shall pay (if declared) additional
dividends (the "Additional Dividends") on the next succeeding Dividend
Payment Date (or if such amendment is enacted after the dividend payable
on such Dividend Payment Date has been declared, on the second succeeding
Dividend Payment Date following the date of enactment) to holders of
record on such succeeding Dividend Payment Date in an amount equal to the
excess of (x) the product of the dividends paid by the Corporation on each
Affected Dividend Payment Date and the DRD Formula (where the DRP used in
the DRD Formula would be equal to the greater of the Dividends Received
Percentage and .50
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applied to each Affected Dividend Payment Date) over (y) the dividends
paid by the Corporation on each Affected Dividend Payment Date.
Notwithstanding the foregoing, Additional Dividends shall not be
paid as a result of the enactment of any amendment to the Code 18 months
or more after the date of original issuance of the Series B Preferred
Stock which retroactively reduces the Dividends Received Percentage, or if
such amendment would not result in an adjustment due to the Corporation
having received either an opinion of counsel or tax ruling referred to in
the third preceding paragraph. The Corporation shall make only one payment
of Additional Dividends.
In the event that the amount of dividend payable per share of the
Series B Preferred Stock shall be adjusted pursuant to the DRD Formula
and/or Additional Dividends are to be paid, the Corporation will cause
notice of each adjustment and, if applicable, any Additional Dividends, to
be sent to the holders of the Series B Preferred Stock with the payment of
dividends on the next Dividend Payment Date after the date of such
adjustment.
In the event that, prior to 18 months after the date of the
original issuance of the Series B Preferred Stock, the Dividends Received
Percentage is reduced to 50% or less, the Corporation may, at its option,
redeem the Series B Preferred Stock in whole, but not in part, as
described below.
(iii) Payment Restrictions. The Corporation may not declare or
pay any dividend or make any distribution of assets (other than dividends
paid or other distributions made in stock of the Corporation ranking
junior to the Series B Preferred Stock as to the payment of dividends and
the distribution of assets upon liquidation, dissolution or winding up)
on, or redeem, purchase or otherwise acquire (except upon conversion or
exchange for stock of the Corporation ranking junior to the Series B
Preferred Stock as to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up), shares of Common
Stock, of Series A Preferred Stock or of any other stock of the
Corporation ranking junior to the Series B Preferred Stock as to the
payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, unless all accrued and unpaid dividends on the
Series B Preferred Stock for all prior dividend periods have been or
contemporaneously are declared and paid and the full quarterly dividend on
the Series B Preferred Stock for the current dividend period has been or
contemporaneously is declared and set apart for payment.
Whenever all accrued dividends on the Series B Preferred Stock
are not paid in full, the Corporation may not declare or pay dividends or
make any distribution of assets (other than dividends paid or other
distributions made in stock of the Corporation ranking junior to the
Series B Preferred Stock as to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up) on any
other stock of the Corporation ranking on a parity with the Series B
Preferred Stock as to the payment of dividends unless
12
(i) all accrued and unpaid dividends on the Series B Preferred Stock for
all prior dividend periods are contemporaneously declared and paid or (ii)
all dividends declared and paid or set apart for payment or other
distributions made on the Series B Preferred Stock and any other stock of
the Corporation ranking on a parity with the Series B Preferred Stock as
to the payment of dividends are declared and paid or set apart for payment
or made pro rata so that the amount of dividends declared and paid or set
apart for payment or other distributions made per share on the Series B
Preferred Stock and such other stock of the Corporation will bear the same
ratio that accrued and unpaid dividends per share on the Series B
Preferred Stock and such other stock of the Corporation bear to each
other.
Whenever all accrued dividends on the Series B Preferred Stock
are not paid in full, the Corporation may not redeem, purchase or
otherwise acquire (except upon conversion or exchange for stock of the
Corporation ranking junior to the Series B Preferred Stock as to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up) other stock of the Corporation ranking on a
parity with the Series B Preferred Stock as to the payment of dividends or
the distribution of assets upon liquidation, dissolution or winding up
unless (i) all outstanding shares of the Series B Preferred Stock are
contemporaneously redeemed or (ii) a pro rata redemption is made of shares
of Series B Preferred Stock and such other stock of the Corporation, with
the amount allocable to each series of such stock determined on the basis
of the aggregate liquidation preference of the outstanding shares of each
series and the shares of each series being redeemed only on a pro rata
basis.
4. Liquidation Preference. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, the
holders of shares of Series B Preferred Stock shall be entitled to receive
out of the assets of the Corporation available for distribution to
stockholders, before any distribution of assets is made on the Common
Stock of the Corporation or any other class or series of stock of the
Corporation ranking junior to the Series B Preferred Stock, upon
liquidation, a liquidating distribution in the amount of $1,000 per share,
plus an amount equal to the sum of all accrued and unpaid dividends
including any increase in dividends payable due to changes in the
Dividends Received Percentage and Additional Dividends (whether or not
earned or declared) for the then-current dividend period and all dividend
periods prior thereto.
Neither the sale of all or substantially all of the property or
business of the Corporation, nor the merger, conversion or consolidation
of the Corporation into or with any other corporation, nor the merger,
conversion or consolidation of any other corporation into or with the
Corporation shall constitute a liquidation, dissolution or winding up,
voluntary or involuntary, for the purposes of the foregoing paragraph.
After the payment to the holders of the shares of Series B Preferred Stock
of the full preferential amounts provided
13
for above, the holders of the shares of Series B Preferred Stock as such
shall have no right or claim to any of the remaining assets of the
Corporation.
In the event the assets of the Corporation available for
distribution to the holders of the shares of Series B Preferred Stock upon
any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all amounts
to which such holders are entitled as provided above, no such distribution
shall be made on account of any other stock of the Corporation ranking on
a parity with the Preferred Stock as to the distribution of assets upon
such liquidation, dissolution or winding up unless a pro rata distribution
is made on the Series B Preferred Stock and such other stock of the
Corporation, with the amount allocable to each series of such stock
determined on the basis of the aggregate liquidation preference of the
outstanding shares of each series and distributions to the shares of each
series being made on a pro rata basis.
5. Voting Rights.
(i) The holders of shares of Series B Preferred Stock will not be
entitled to vote, except as set forth below or as expressly required by
applicable law. In exercising any such vote, each outstanding share of
Series B Preferred Stock shall be entitled to one vote.
(ii) If the equivalent of six quarterly dividends payable on the
Series B Preferred Stock or any other class or series of preferred stock
ranking on a parity with the Series B Preferred Stock as to the payment of
dividends have not been paid, the Corporation has resolved to increase the
number of directors of the Corporation by two (without duplication of any
increase made pursuant to the terms of any other series of preferred stock
of the Corporation), and the holders of the Series B Preferred Stock,
voting as a single class with the holders of shares of any other class of
the preferred stock of the Corporation ranking on a parity with the Series
B Preferred Stock either as to dividends or distribution of assets and
upon which like voting rights have been conferred and are exercisable,
will be entitled to elect two directors at any meeting of stockholders of
the Corporation at which directors are to be elected held during the
period such dividends remain in arrears. Each class or series of preferred
stock entitled to vote for the additional directors shall have a number of
votes proportionate to the aggregate liquidation preference of its
outstanding shares. Such voting right shall continue until full cumulative
dividends for all past dividend periods on all such preferred stock of the
Corporation, including any shares of the Series B Preferred Stock, have
been paid or declared and set apart for payment. Any such elected
directors shall serve until the Corporation's next annual meeting of
stockholders (notwithstanding that prior to the end of such term the right
to elect directors shall cease to exist) or until their respective
successors shall be elected and qualify.
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(iii) Whenever such right shall vest, it may be exercised
initially either at a special meeting of holders of Series B Preferred
Stock or at any annual stockholders' meeting, but thereafter it shall be
exercised only at annual stockholders' meetings. Any director who shall
have been elected by the holders of Series B Preferred Stock as a class
pursuant to this subparagraph (iii) may be removed at any time, either for
or without cause by, and only by, the affirmative votes of the holders of
record of a majority of the outstanding shares of Series B Preferred Stock
given at a special meeting of such stockholders called for such purpose,
and any vacancy created by such removal may also be filled at such
meeting. Any vacancy caused by the death or resignation of a director who
shall have been elected by the holders of Series B Preferred Stock as a
class pursuant to this subparagraph (iii) may be filled only by the
holders of all outstanding Series B Preferred Stock at a meeting called
for such purpose.
Any meeting of the holders of all outstanding Series B Preferred
Stock entitled to vote as a class for the election or removal of directors
shall be held at the place at which the last annual meeting of
stockholders was held. At such meeting, the presence in person or by proxy
of the holders of a majority of the outstanding shares of all outstanding
Series B Preferred Stock shall be required to constitute a quorum; in the
absence of a quorum, a majority of the holders present in person or by
proxy shall have the power to adjourn the meeting from time to time
without notice, other than announcement at the meeting, until a quorum
shall be present.
(iv) So long as any Series B Preferred Stock is outstanding, the
affirmative vote or consent of the holders of at least 80% of the
outstanding shares of the Series B Preferred Stock will be required for
any amendment of the Restated Certificate of Incorporation of the
Corporation (or any certificate supplemental thereto) which will adversely
affect the powers, preferences, privileges or rights of the Series B
Preferred Stock. The affirmative vote or consent of the holders of at
least 80% of the outstanding shares of the Series B Preferred Stock and
any other series of the preferred stock of the Corporation ranking on a
parity with the Series B Preferred Stock either as to dividends or upon
liquidation, voting as a single class without regard to series, will be
required to issue, authorize or increase the authorized amount of, or
issue or authorize any obligation or security convertible into or
evidencing a right to purchase, any additional class or series of stock
ranking prior to the Series B Preferred Stock as to dividends or upon
liquidation, or to reclassify any authorized stock of the Corporation into
such prior shares, but such vote will not be required for the Corporation
to take any such actions with respect to any stock ranking on a parity
with or junior to the Series B Preferred Stock.
The affirmative vote or consent of the holders of a majority of
all the outstanding shares of Series B Preferred Stock, voting or
consenting separately as a class, shall be required to approve any merger,
conversion, consolidation or compulsory share exchange to which the
Corporation is a party, unless (i) the terms of such merger, conversion,
consolidation or
15
compulsory share exchange do not provide for a change in the terms of the
Series B Preferred Stock and (ii) the Series B Preferred Stock is on a
parity with or prior to (in respect of the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up) any
other class or series of capital stock authorized by the surviving
corporation, other than any class or series of stock of the Corporation
ranking senior as to the Series B Preferred Stock either as to the payment
of dividends or the distribution of assets upon liquidation, dissolution
or winding up of the Corporation and previously authorized with the
consent of holders of Series B Preferred Stock as described herein (or
other than any capital stock into which such prior stock is converted as a
result of such merger, consolidation or compulsory share exchange).
In addition, if the holders of the shares of the Series B
Preferred Stock are entitled to vote upon or consent to a merger,
consolidation, conversion or compulsory share exchange of the Corporation,
and if the Corporation offers to purchase all of the outstanding shares of
the Series B Preferred Stock (the "Offer"), then each holder of the Series
B Preferred Stock who does not sell its shares of Series B Preferred Stock
pursuant to the Offer shall be deemed irrevocably to have voted or
consented all shares of Series B Preferred Stock owned by such holder in
favor of the merger or consolidation of the Corporation without any
further action by the holder. The Offer shall be at a price of $1,000 per
share, together with accrued and unpaid dividends (whether or not
declared) to the date fixed for repurchase including any increase in
dividends payable due to changes in the Dividends Received Percentage and
Additional Dividends. The Offer shall remain open for acceptance for a
period of at least 30 days.
6. Redemption. Prior to August 25, 2008, the Series B Preferred
Stock is not redeemable, except as set forth herein. On or after such
date, each share of Series B Preferred Stock shall be redeemable, in whole
or in part, at the option of the Corporation, at any time and from time to
time, out of funds legally available therefor, at a redemption price of
$1,000 per share, plus accrued and unpaid dividends (whether or not
declared) to the date fixed for redemption, including any increase in
dividends payable due to changes in the Dividends Received Percentage and
Additional Dividends. If fewer than all the outstanding shares of Series B
Preferred Stock are to be redeemed, the Corporation will select those to
be redeemed by lot or pro rata or by any other method as may be determined
by the Board of Directors to be equitable.
If, prior to 18 months after the date of the original issuance of
the Series B Preferred Stock, one or more amendments to the Code are
enacted which result in a reduction of the Dividend Received Percentage to
50% or less, the Corporation, at its option may redeem all, but not less
than all, of the outstanding shares of Series B Preferred Stock provided
that, within 60 days of the date on which an amendment to the Code is
enacted which changes the Dividend Received Percentage to 50% or less, the
Corporation sends notice to holders of the Series B Preferred Stock of
such redemption. Any redemption of the Series B Preferred Stock pursuant
to this paragraph will take place on the
16
date specified in the notice, which date shall not be less than 30 or more
than 60 days from the date such notice is sent to holders of the Series B
Preferred Stock. Any redemption of the Series B Preferred Stock in
accordance with this paragraph shall be at a redemption price equal to the
greater of (i) $1,000 per share of the Series B Preferred Stock (the
"Liquidation Value") to be redeemed or (ii) the sum of the present values
of the Remaining Scheduled Dividends prior to August 25, 2028 and the
Liquidation Value assuming payment on August 25, 2028, discounted to the
redemption date on a quarterly basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Yield plus zero basis points,
excluding any increase in dividends payable due to changes in the Dividend
Received Deduction Percentage, if any, plus in the case of (i) or (ii)
accrued and unpaid dividends (whether or not declared) to the date fixed
for redemption.
"Treasury Yield" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Rate for such redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
of August 25, 2028 that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities maturing on or about August 25, 2028.
"Independent Investment Banker" means Smith Barney Inc. or, if such firm
is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed
by the Corporation.
"Comparable Treasury Rate" means, as of any date of determination,
the yield to maturity implied by (i) the yields reported, as of 10:00 A.M.
(New York City time) on the second business day preceding such date of
determination on the display designated as "Page 678" on the Telerate
Access Service (or such other display as may replace Page 678 on Telerate
Access Service) for actively traded U.S. Treasury securities having a
30-year maturity as of such date of determination, or (ii) if such yields
are not reported as of such time or the yields reported as of such time
are not ascertainable, the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so reported
as of the second business day preceding the date of determination in
Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities having
a 30-year constant maturity as of such date of determination.
"Remaining Scheduled Dividends" means cumulative cash dividends at a
rate of 5.68% of the Liquidation Value per share of Series B Preferred
Stock equivalent to $56.80 per annum per share of Series B Preferred Stock
from the date specified in the notice until August 25, 2028.
17
Not more than 60 nor less than 30 days prior to the redemption date,
notice by first class mail, postage prepaid, shall be given to the holders
of record of the Series B Preferred Stock to be redeemed, addressed to
such stockholders at their last addresses as shown on the books of the
Corporation. Each such notice of redemption shall specify the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of the shares of
Series B Preferred Stock and that on and after the redemption date,
dividends will cease to accumulate on such shares.
Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the holder of Series B
Preferred Stock receives such notice; and failure to give such notice by
mail, or any defect in such notice, to the holders of any shares
designated for redemption shall not affect the validity of the proceedings
for the redemption any other shares of Series B Preferred Stock. On or
after the date fixed for redemption as stated in such notice, each holder
of the shares called for redemption shall surrender the certificate
evidencing such shares to the Corporation at the place designated in such
notice and shall thereupon be entitled to receive payment of the
redemption price. If less than all the shares represented by any such
surrendered certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares. If, on the date fixed for redemption,
funds necessary for the redemption shall be available therefor and shall
have been irrevocably deposited or set aside, then, notwithstanding that
the certificates evidencing any shares so called for redemption shall not
have been surrendered, the dividends with respect to the shares so called
shall cease to accumulate after the date fixed for redemption, the shares
shall no longer be deemed outstanding, the holders thereof shall cease to
be stockholders with respect to such shares, and all rights whatsoever
with respect to the shares so called for redemption (except the right of
the holders to receive the redemption price without interest upon
surrender of their certificates therefor) shall terminate.
The Series B Preferred Stock is not subject to any mandatory
redemption, sinking fund or other similar provisions.
7. Outstanding Shares. For purposes of this Certificate of
Designations, all shares of Series B Preferred Stock shall be deemed
outstanding, except (i) from the date fixed for redemption pursuant to
Section 6 hereof, all shares of Series B Preferred Stock that have been so
called for redemption under Section 6; and (ii) from the date of
registration of transfer, all shares of Series B Preferred Stock held of
record by the Corporation or any subsidiary of the Corporation.
8. Preemptive Rights. The Series B Preferred Stock is not entitled
to any preemptive or subscription rights in respect of any securities of
the Corporation.
18
9. Severability of Provisions. Whenever possible, each provision
hereof shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating or
otherwise adversely affecting the remaining provisions hereof. If a court
of competent jurisdiction should determine that a provision hereof would
be valid or enforceable if a period of time were extended or shortened or
a particular percentage were increased or decreased, then such court may
make such change as shall be necessary to render the provision in question
effective and valid under applicable law.
10. Fractional Shares. The Series B Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of
holders of Series B Preferred Stock.
11. Reversion to Corporation. Subject to applicable escheat laws,
any monies set aside by the Corporation in respect of any payment with
respect to shares of the Series B Preferred Stock, or dividends thereon,
and unclaimed at the end of two years from the date upon which such
payment is due and payable shall revert to the general funds of the
Corporation, after which reversion the holders of such shares shall look
only to the general funds of the Company for the payment thereof. Any
interest accrued on funds so deposited shall be paid to the Corporation
from time to time.
FIFTH. The minimum amount of capital with which the Corporation will
commence business is One thousand Dollars ($1,000.00).
SIXTH. The names and places of residence of the original incorporators
were as follows:
NAMES RESIDENCES
H. K. Webb Wilmington, Delaware
H. C. Broadt Wilmington, Delaware
A. D. Atwell Townsend, Delaware
SEVENTH. The Corporation is to have perpetual existence.
EIGHTH. The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
19
NINTH. The number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the directors then in office.
At each annual meeting of shareholders commencing in 1986, the terms of
office for which candidates are nominated and elected shall be divided so that
as nearly as numerically possible the terms of office of one-third of the total
number of directors elected and serving upon completion of such election will
expire at the annual meeting of shareholders next following the date of such
election, and one-third each at each of the two next ensuing annual meetings of
shareholders.
A majority of the directors then in office, in their sole discretion and
whether or not constituting less than a quorum, may elect a replacement director
to serve during the unexpired term of any director previously elected whose
office is vacant as a result of death, resignation, retirement,
disqualification, removal or otherwise, and may elect directors to fill any
newly created directorships created by the Board. At any election of directors
by the Board of Directors to fill any vacancy caused by an increase in the
number of directors, the terms of office for which candidates are nominated and
elected shall be divided as set forth in the immediately preceding paragraph.
Each director shall be elected and serve until his successor shall have
been duly elected and qualified unless he shall have resigned, become
disqualified, deceased or disabled, or shall otherwise have been removed from
office.
In furtherance and not in limitations of the powers conferred by statute,
the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the Corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the Corporation.
To set apart out of any of the funds of the Corporation available for
dividends, a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By resolution passed by a majority of the whole Board, to designate one or
more committees, each committee to consist of two or more of the directors of
the Corporation, which, to the extent provided in the resolution or in the
by-laws of the Corporation, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it. Such committee or committees shall have such name or names as
may be stated in the by-laws of the Corporation or as may be determined from
time to time by resolution adopted by the Board of Directors.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, to sell, lease or exchange
all of the property and assets of the Corporation,
20
including its good will and its corporate franchises, upon such terms and
conditions and for such consideration which may be in whole or in part shares of
stock in, and/or other securities of, any other corporation or corporations, as
its Board of Directors shall deem expedient and for the best interest of the
Corporation.
Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of four-fifths of all classes
of stock of the Corporation entitled to vote in the election of directors,
considered as one class, shall be required to alter, amend, or adopt any
provision inconsistent with or repeal this Article NINTH.
In the absence of fraud no contract or other transaction between this
Corporation and any other corporation shall be affected by the fact that any
director of this Corporation is interested in, or is a director or officer of,
such other corporation, and any director, individually or jointly, may be a
party to, or may be interested in, any contract or transaction of this
Corporation or in which this Corporation is interested; and no contract, or
other transaction of this Corporation with any person, firm, or corporation,
shall be affected by the fact that any director of this Corporation is a party
to, or is interested in, such contract, act, or transaction, or in any way
connected with such person, firm, or corporation, and every person who may
become a director of this Corporation is hereby relieved from any liability that
might otherwise exist from contracting with the Corporation for the benefit of
himself or any firm, association, or corporation in which he may be in any way
interested.
TENTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
ELEVENTH. Meetings of stockholders may be held outside the state of
Delaware, if the by-laws so provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of the state of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the by-laws of the Corporation. Election of directors
need not be by ballot unless the by-laws of the Corporation shall so provide.
21
TWELFTH. A. Except as set forth in this article, the affirmative vote or
consent of the holders of four-fifths of all classes of stock of the Corporation
entitled to vote in elections of directors, considered for the purposes of this
article as one class, shall be required (a) for the adoption of any agreement
for the merger or consolidation of the Corporation with or into any other
corporation, or (b) to authorize any sale or lease of all or any substantial
part of the assets of the Corporation to, or any sale or lease to the
Corporation or any subsidiary thereof in exchange for securities of the
Corporation of any assets (except assets having an aggregate fair market value
of less than $5,000,000) of, any other corporation, person or other entity if,
in either case, as of the record date for the determination of stockholders
entitled to vote thereon or consent thereto, such other corporation, person or
entity is the beneficial owner, directly or indirectly, of more than 5% of the
outstanding shares of stock of the Corporation entitled to vote in elections of
directors considered for the purposes of this article as one class. Such
affirmative vote or consent shall be in addition to the vote or consent of the
holders of the stock of the Corporation otherwise required by law or any
agreement between the Corporation and any national securities exchange.
B. For the purpose of this article, (a) 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 has the right to acquire pursuant to any agreement or
upon exercise of conversion rights, warrants or options or otherwise, or (ii)
which are beneficially owned directly or indirectly (including shares deemed
owned through application of clause (i) above), by any other corporation, person
or entity with which it or its "affiliate" or "associate" (as defined below) has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of stock of the Corporation or which is its
"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 at the date of adoption of this article by the shareholders of the
Corporation, and (b) the outstanding shares of any class of stock of the
Corporation shall include shares deemed owned through application of clauses (i)
and (ii) above but shall not include any other shares which may be issuable
pursuant to any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
C. The Board of Directors shall have the power and duty to determine for
the purposes of this article, on the basis of information known to the
Corporation, whether (a) such other corporation, person or entity beneficially
owns more than 5% of the outstanding shares of stock of the Corporation entitled
to vote in elections of directors, (b) a corporation, person or entity is an
"affiliate" or "associate" (as defined above) of another, (c) the assets being
acquired by the Corporation or any subsidiary thereof have the aggregate fair
market value of less than $5,000,000, and (d) the memorandum of understanding
referred to below is substantially consistent with the transaction covered
thereby. Any such determination shall be conclusive and binding for all purposes
of this article.
D. The provisions of this article shall not be applicable to (a) any
merger or consolidation of the Corporation with or into any other corporation,
or any sale or lease of all or any substantial part of the assets of the
Corporation or any subsidiary thereof in exchange for securities of the
Corporation or of any assets of, any corporation, if the Board of Directors of
the Corporation shall by resolution have approved a memorandum of understanding
with such other corporation with respect to and substantially consistent with
such transaction prior to the time that such other corporation shall have become
a holder of more than 5% of the
22
outstanding shares of stock of the Corporation entitled to vote in elections of
directors; (b) any merger or consolidation of the Corporation with, or any sale
or lease to the Corporation or any subsidiary thereof of any of the assets of,
any corporation of which a majority of the outstanding shares of all classes of
stock entitled to vote in elections of the directors is owned of record or
beneficially by the Corporation and its subsidiaries.
E. No amendment to the Certificate of Incorporation of the Corporation
shall amend, alter, change or repeal any of the provisions of this article,
unless the amendment effecting such amendment, alteration, change or repeal
shall receive the affirmative vote or consent of the holders of four-fifths of
all classes of stock of the Corporation entitled to vote in elections of
directors, considered for the purposes of this article as one class.
THIRTEENTH. The Corporation reserves the right, except as herein provided,
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
FOURTEENTH. A. Any resolution adopted by the Board of Directors in
connection with a Second Tier Transaction shall include provisions assuring that
each holder of Common Stock (other than a Related Person) shall have the right
(which right may be an alternative to other options offered to such holder) to
receive not less than the highest price paid by, and to receive terms not less
favorable than the most favorable terms granted by, any Related Person in
connection with the acquisition of Common Stock pursuant to a Tender Offer.
B. The term "Related Person" means any corporation, person or other entity
that has Beneficial Ownership, directly or indirectly, of more than 5% of the
outstanding Voting Stock. In determining the outstanding Voting Stock, there
shall be included Voting Stock as to which a Related Person has Beneficial
Ownership, but there shall not be included any other Voting Stock which may be
issuable pursuant to any agreement, or upon exercise of conversion rights,
warrants or options or otherwise. The Board of Directors shall have the power
and duty to determine for the purposes of this article, on the basis of
information known to the Corporation, whether (a) such other corporation, person
or entity has Beneficial Ownership of more than 5% of the outstanding Voting
Stock, or (b) a corporation, person or entity is an "affiliate" or "associate"
(as defined below) of another for purposes of determining Beneficial Ownership.
Any such determination shall be conclusive and binding for all purposes of this
article.
The term "Beneficial Ownership" shall include without limitation: (i) all
Voting Stock directly or indirectly owned by a person or entity, by an
"affiliate" or "associate" of a person or entity, (as those terms are defined in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended, as in effect at the date of adoption of this article);
(ii) all Voting Stock which such person or entity, affiliate or associate has
the right to acquire (a) through the exercise of any option, warrant or right
(whether or not currently exercisable), (b) through the conversion of a
security, (c) pursuant to the power to revoke a trust, discretionary account, or
similar arrangement; and (iii) all Voting Stock as to which such person or
entity, affiliate or associate, directly or indirectly, through any contract,
arrangement, understanding, relationship, or otherwise (including without
limitation any written or unwritten agreement to act in concert) has or shares
voting power (which includes the power to vote or
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to direct the voting of such Voting Stock) or investment power (which includes
the power to dispose or to direct the disposition of such Voting Stock) or both.
The term "Second Tier Transaction" means, at such time that there is a
Related Person which has acquired Voting Stock by means of a Tender Offer, (a)
the adoption, or submission to the shareholders of the Corporation for approval,
or any agreement or plan for the merger, consolidation or reorganization of the
Corporation with or into any other corporation or entity, or (b) the
authorization of any sale or lease of all or substantially all of the assets of
the Corporation or (c) the issuance or sale by the Corporation of any equity
security (as that term is defined in the Securities Exchange Act of 1934, as
amended) to a Related Person or any affiliate or associate of a Related Person
under circumstances that holders of Voting Stock do not have the opportunity to
purchase such equity on a pro rata basis.
The term "Tender Offer" means any tender offer for, or request or
invitation for tenders of, Voting Stock, within the meaning of Section 14(d)(1)
of the Securities Exchange Act of 1934, as amended, and any purchase or series
of purchases of Voting Stock at or above then prevailing market prices for such
Voting Stock pursuant to which more than 5% of the outstanding Voting Stock is
acquired in any two-year period.
The term "Voting Stock" means securities of the Corporation entitled under
ordinary circumstances to vote in elections of directors, considered for the
purposes of this article as one class.
C. No amendment to the Certificate of Incorporation shall amend, alter,
change or repeal any of the provisions of this article, unless the amendment
effecting such amendment, alteration, change or repeal shall receive the
affirmative vote or consent of the holders of four-fifths of the Voting Stock
and shall receive the affirmative vote or consent of a majority of all Voting
Stock other than Voting Stock of which a Related Person has Beneficial
Ownership.
FIFTEENTH. A. Subject to Paragraph B below, the Corporation shall not
acquire, directly or indirectly, any Voting Stock, by purchase, exchange or
otherwise from any Related Person.
B. This article shall not be applicable to any acquisition of Voting Stock
(1) pursuant to a Tender Offer made to all holders of any class of Voting Stock
on the same price, terms and conditions and, if for less than all of the Voting
Stock, subject to pro rata acceptance (except as to holders of fewer than 100
shares), (2) in compliance with Rule 10b-18 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended, as in effect at the date
of adoption of this article, or (3) for a total consideration per share,
including payment for legal fees, investment banking fees, brokerage fees and
related costs and expenses of the holder in acquiring such Voting Stock, not in
excess of the Market Value Per Share.
C. The term "Related Person" means any corporation, person or entity that
has Beneficial Ownership, directly or indirectly, of more than 5% of the
outstanding Voting Stock. In determining the outstanding Voting Stock of the
Corporation, there shall be included Voting Stock as to which a Related Person
has Beneficial Ownership, but there shall not be included any other Voting Stock
which may be issuable pursuant to any agreement, or upon exercise
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of conversion rights, warrants or options or otherwise. The Board of Directors
shall have the power and duty to determine for the purposes of this article, on
the basis of information known to the Corporation, whether (a) such other
corporation, person or entity has Beneficial Ownership of more than 5% of the
outstanding Voting Stock, or (b) a corporation, person or entity is an
"affiliate" or "associate" (as defined below) of another for purposes of
determining Beneficial Ownership. Any such determination shall be conclusive and
binding for all purposes of this article.
The term "Beneficial Ownership" shall include without limitation: (i) all
Voting Stock directly or indirectly owned by a person or entity, by an
"affiliate" or "associate" of a person or entity, (as those terms are defined in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act, as amended, as in effect at the date of adoption of this article); (ii) all
Voting Stock which such person or entity, affiliate or associate has the right
to acquire (a) through the exercise of any option, warrant or right (whether or
not currently exercisable), (b) through the conversion of a security, (c)
pursuant to the power to revoke a trust, discretionary account, or similar
arrangement; and (iii) all Voting Stock as to which such person or entity,
affiliate or associate, directly or indirectly, through any contract,
arrangement, understanding, relationship, or otherwise (including without
limitation any written or unwritten agreement to act in concert) has or shares
voting power (which includes the power to vote or to direct the voting of such
Voting Stock) or investment power (which includes the power to dispose or to
direct the disposition of such Voting Stock) or both.
The term "Market Value Per Share" means for the 30-day period immediately
preceding the date on which Voting Stock is acquired (i) the average closing
price on the Composite Tape for New York Stock Exchange Issues, (ii) if the
Voting Stock is not quoted on the Composite Tape or is not listed on such
Exchange, the average closing price on the principal United States securities
exchange registered under the Securities Exchange Act of 1934, on which such
stock is listed, (iii) if such stock is not listed on any such exchange, the
average closing bid quotation on the National Association of Securities Dealers,
Inc., Automated Quotations System or any comparable system then in use, or (iv)
if no such quotations are available, the fair market value as determined by the
Board of Directors in its discretion.
The term "Voting Stock" means securities of the Corporation entitled under
ordinary circumstances to vote in elections of directors, considered for the
purposes of this article as one class.
SIXTEENTH. Except as otherwise expressly provided in this Certificate of
Incorporation, any action required or permitted to be taken by the shareholders
of the Corporation must be effected at a duly called annual or special meeting
of the shareholders and may not be effected by any consent in writing by
shareholders, and the affirmative vote of the holders of four-fifths of all
classes of stock of the Corporation entitled to vote in elections of directors,
considered as one class, shall be required to alter, amend, or adopt any
provision inconsistent with, or to repeal, this Article SIXTEENTH.
SEVENTEENTH. No director shall be personally liable to the Corporation or
any stockholder for monetary damages for breach of fiduciary duty as a director,
except for any matter in respect to which such director shall be liable under
Section 174 of Title 8 of the
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Delaware Code (relating to the Delaware General Corporation Law) or any
amendment thereto or successor provision thereto or shall be liable by reason
that, in addition to any and all other requirements for such liability, he (i)
shall have breached his duty of loyalty to the Corporation or its stockholders,
(ii) shall not have acted in good faith, or in failing to act, shall not have
acted in good faith, (iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing violation of law or
(iv) shall have derived an improper personal benefit. Neither the amendment nor
repeal of this Article SEVENTEENTH, nor the adoption of any provision of the
Certificate of Incorporation inconsistent with this Article SEVENTEENTH, shall
eliminate or reduce the effect of this Article SEVENTEENTH, in respect to any
matter occurring, or any cause of action, suit or claim that, but for this
Article SEVENTEENTH would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
4. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors in accordance with Section 245 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, said Apache Corporation has caused this Restated
Certificate of Incorporation to be signed by Cheri L. Peper, its Corporate
Secretary, and attested by Jeffrey B. King, its Assistant Secretary, this 11th
day of February 2004.
APACHE CORPORATION
By: /s/ Cheri L. Peper
------------------------------
Cheri L. Peper
Corporate Secretary
ATTEST:
By: /s/ Jeffrey B. King
------------------------------
Jeffrey B. King
Assistant Secretary
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