EXHIBIT 3.6
CERTIFICATE OF INCORPORATION
of
OMNI EXPLORATION, INC.
FIRST. Name. The name of the Corporation is Omni Exploration, Inc.
SECOND. Registered Office. The address of its registered office in the
State of Delaware is 102 Springer Building, 3411 Silverside Road, in
Wilmington, County of New Castle. The name of its registered agent at such
address is Organization Services, Inc., c/o George Warren, President.
THIRD. Purposes. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware and to do all
things and execute all powers, rights and privileges which a business
corporation may now or hereafter be organized or authorized to do or to
exercise under the laws of the State of Delaware.
FOURTH. Capitalization. The total number of shares of stock which the
Corporation shall have authority to issue is Thirty-Five Million (35,000,000)
shares, consisting of Ten Million (10,000,000) shares of Preferred Stock with a
par value of $0.01 per share and Twenty-Five Million (25,000,000) shares of
Common Stock with a par value of $0.01 per share.
(a) The Preferred Stock may be issued from time to time in one or
more series of any number of shares, provided that the aggregate number of
shares issued and not cancelled of any and all such series shall not
exceed the total number of shares of Preferred Stock hereinabove
authorized. Each series of Preferred Stock shall be distinctively
designated by letter or descriptive words. All series of Preferred Stock
shall rank equally and be identical in all respects except as permitted by
the provisions of paragraph (b) of this Article FOURTH.
(b) Authority is hereby vested in the Board of Directors from time
to time to issue the Preferred Stock as Preferred Stock of any series and
in connection with the creation of such series to fix by resolution or
resolutions providing for the issue of shares thereof the voting rights,
if any, the designations, preferences, qualifications, privileges,
limitations, restrictions, options, conversion rights, and other special
and relative rights of such series to the full extent now or hereafter
permitted by this Certificate of Incorporation and the laws of the State
of Delaware. The authority of the Board with respect to each series shall
include, but not be limited to, determination of the following:
(1) The distinctive designation of such series and the number
of shares which shall constitute such series, which number may be
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increased or decreased (but not below the number of shares thereof
then outstanding) from time to time by action of the Board of
Directors;
(2) The dividend rate, if any, of such series, any preferences
to or provisions in relation to the dividends payable on any other
class or classes or of any other series of stock whether or not the
dividends are cumulative or non-cumulative, and any limitations,
restrictions or conditions on the payment of dividends;
(3) Whether the shares of such series shall be subject to
redemption and, if such shares are subject to redemption, the price
or prices at which, and the terms and conditions on which, the
shares of such series may be redeemed by the Corporation;
(4) Whether the shares of such series shall be entitled to the
benefits of a sinking fund to be applied to the purchase or
redemption of shares of such series and if so entitled, the amount
of such fund and the manner of its application;
(5) The amount or amounts payable upon the shares of such
series in the event of any liquidation, dissolution or winding up of
the Corporation;
(6) Whether the shares of such series shall be made
convertible into or exchangeable for, shares of any other class or
classes of stock of the Corporation or shares of any other series of
Preferred Stock, and, if made so convertible or exchangeable, the
conversion price or prices, or the rate or rates of exchange, and
the adjustments thereof, if any, at which such conversion or
exchange may be made, and any other terms and conditions of such
conversion or exchange;
(7) Whether the shares of such series have any voting powers
and, if voting powers are so granted, the extent of such voting
powers;
(8) Whether the issue of any additional shares of such series
or of any future series in addition to such series shall be subject
to restrictions in addition to the restrictions, if any, on the
issue of additional shares imposed in the resolution or resolutions
fixing the terms of any outstanding series of Preferred Stock
theretofore issued pursuant to this Article FOURTH, and if subject
to additional restrictions, the extent of such additional
restrictions; and
(9) Any other relative rights, preferences and limitations of
that series.
(c) Except as otherwise provided by law, or this Certificate of
Incorporation or by the resolution or resolutions providing for the issue
of any series of Preferred Stock, the holders of shares of Preferred
Stock, as such
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holders, (i) shall not have any right to vote, and are hereby specifically
excluded from the right to vote, in the election of directors or for any
other purpose, and (ii) shall not be entitled to notice of any meeting of
stockholders.
FIFTH. Incorporator. The name and mailing address of the incorporator are
as follows:
NAME MAILING ADDRESS
---- ---------------
Thomas J. Sharbaugh 38th Floor Centre Square West
Philadelphia, PA 19102
SIXTH. Additional Powers of Board of Directors. The Board of Directors
shall have power, without stockholder action, to make By-Laws for the
Corporation and to amend, alter or repeal any By-Laws.
The powers and authorities herein conferred upon the Board of Directors
are in furtherance and not in limitation of those conferred by the laws of the
State of Delaware. In addition to the powers and authorities herein or by
statute expressly conferred upon it, the Board of Directors may exercise all
such powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the laws of the State
of Delaware, of this Certificate of Incorporation and of the By-Laws of the
Corporation.
SEVENTH. Voting by Ballot. Elections of Directors need not be by ballot
unless the By-Laws of the Corporation provide otherwise.
EIGHTH. Right to Amend Certificate of Incorporation. The Corporation
reserves the right at any time and from time to time to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in this Certificate of Incorporation, in the manner now
or hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant tot his Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article EIGHTH.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware does make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 4th day of May, 1981.
/s/ Thomas J. Sharbaugh (SEAL)
-----------------------------------
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Omni Exploration, Inc., a corporation organized and existing under and by
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of said corporation,
resolutions were duly adopted setting forth a proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable and calling a meeting of stockholders for consideration thereof. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that Article THIRD of the Certificate of Incorporation of
the Corporation be amended to read as follows:
The nature of the business or purposes to be conducted or promoted
is:
Primarily, to engage in the production of oil and gas, but the
Corporation is also authorized and empowered to engage in any other
lawful act or activity for which corporations may be organized under
the General Corporation Law of Delaware and to do all things and
execute all powers, rights and privileges which a business
corporation may now or hereafter be organized or authorized to do or
to exercise under the laws of the State of Delaware.
and further
RESOLVED, that the first paragraph of Article FOURTH of the
Certificate of Incorporation of the Corporation be amended to read as
follows:
The total number of shares of stock which the Corporation
shall have authority to issue is Sixty Million (60,000,000) shares,
consisting of Fifty Million (50,000,000) shares of Common Stock with
a par value of $0.01 per share and Ten Million (10,000,000) shares
of Preferred Stock with a par value of $0.01 per share.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of the stockholders of said corporation was duly called and
held, upon notice and in accordance with Section 222 of the General Corporation
Law of the State of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
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THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, Omni Exploration, Inc. has caused this certificate to
be signed by Gerald Griffin, its President and attested by Stanley Schwartz,
Jr., its Secretary, this 5th day of May, 1986.
OMNI EXPLORATION, INC.
By: /s/ Gerald Griffin
---------------------------------
Gerald Griffin, President
ATTEST:
By: /s/ Stanley Schwartz, Jr.
----------------------------
Stanley Schwartz, Jr.
Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Omni Exploration, Inc., a corporation organized and existing under and by
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of said corporation,
resolutions were duly adopted setting forth proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendments to
be advisable and calling a meeting of stockholders for consideration thereof.
The resolutions setting forth the proposed amendment are as follows:
RESOLVED, that Article NINTH of the Certificate of Incorporation be
added and approved to read in its entirety as follows:
NINTH. A director of this Corporation shall not be personally
liable for monetary damages to the Corporation or its
stockholders for breach of any fiduciary duty as a director,
except for liability (i) for any breach of the director's duty
of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derives an
improper personal benefit. If the Delaware General Corporation
Law is amended after approval by the stockholders of this
Article to authorize corporate action further eliminating or
limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated
or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended. The foregoing
limitation on liability shall not apply to acts or omissions
occurring prior to the effective date of this Article Ninth.
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of the stockholders of said corporation was duly called and
held, upon notice and in accordance with Section 222 of the General Corporation
Law of the State of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendments.
THIRD: That the aforesaid amendments were duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
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IN WITNESS WHEREOF, Omni Exploration, Inc. has caused this certificate
to be signed by Harold L. Levin, its Chairman of the Board, and attested by
Stanley Schwartz, Jr., its Secretary, this 7th day of August, 1987.
OMNI EXPLORATION, INC.
By: /s/ Harold L. Levin
-----------------------------------
Harold L. Levin
Chairman of the Board
ATTEST:
By: /s/ Stanley Schwartz, Jr.
--------------------------
Stanley Schwartz, Jr.
Secretary
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CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
OMNI EXPLORATION, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
The present registered agent of the corporation is ORGANIZATION SERVICES,
INC. and the present registered office of the corporation is in the county of
New Castle. The Executive Committee of The Board of Directors of OMNI
EXPLORATION, INC. adopted the following resolution on the 26th day of October
1987.
Resolved, that the registered office of OMNI EXPLORATION, INC. in
the state of Delaware be and it hereby is changed to Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle, and the authorization of the present registered agent of this
corporation be and the same is hereby withdrawn, and THE CORPORATION TRUST
COMPANY, shall be and is hereby constituted and appointed the registered
agent of this corporation at the address of its registered office.
IN WITNESS WHEREOF, OMNI EXPLORATION, INC. has caused this statement to be
signed by Richard Blackstone, its Vice President and attested by Stanley
Schwartz, Jr., its Secretary this 26th day of October 1986.
By /s/ Richard Blackstone
--------------------------------
Vice President
Richard Blackstone
ATTEST:
By /s/ Stanley Schwartz, Jr.
----------------------------------
Secretary
Stanley Schwartz, Jr.
CERTIFICATE OF DESIGNATION OF
PREFERENCES AND RIGHTS OF SERIES A PREFERRED STOCK OF
OMNI EXPLORATION, INC.
----------------------------
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
----------------------------
OMNI EXPLORATION, INC., a Delaware corporation (the "Corporation"),
certifies that pursuant to the authority contained in Article FOURTH of its
Certificate of Incorporation, and in accordance with the provisions of Section
151 of the General Corporation Law of the State of Delaware, its Board of
Directors has adopted the following resolution creating a series of its
Preferred Stock designated Series A Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation by its Certificate of Incorporation, the
Board hereby designates and authorizes for issuance 200,000 shares of
Series A Preferred Stock, which shall have the relative rights,
preferences and limitations set forth as follows:
SECTION 1. Designation. The series of Preferred Stock shall be
designated and known as "Series A Preferred Stock." The number of
shares constituting the Series A Preferred Stock shall be 200,000.
SECTION 2. Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the affairs of the
corporation, the holders of Series A Preferred Stock shall be entitled to
receive, prior and in preference to any distributions of any of the assets
or surplus funds of the corporation to the holders of the Common Stock of
the corporation, by reason of their ownership thereof, an amount equal to
$15 per share.
All of the preferential amounts to be paid to the holders of the
Series A Preferred Stock under this Section 2 shall be paid or set apart
for payment before the payment or setting apart for payment of any amount
for, or the distribution of any assets of the corporation to, the holders
of the Common Stock in connection with such liquidation, dissolution or
winding-up. After the payment or the setting apart of payment to the
holders of the Series A Preferred Stock of the preferential amounts so
payable to them, the holders of the Common Stock shall share ratably all
remaining assets of the corporation with no right of participation
accruing to any holder of Series A Preferred Stock.
If the assets or surplus funds to be distributed to the holders of
the Series A Preferred Stock are insufficient to permit the payment to
such holders of their full preferential amount, the assets and surplus
funds legally available for distribution shall be distributed ratably
among the holders of the Series A Preferred Stock in proportion to the
full preferential amount each such holder is otherwise entitled to
receive.
SECTION 3. Conversion. The holders of shares of Series A
Preferred Stock shall have conversion rights as follows (the
"Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred Stock
shall be convertible, without the payment of any additional
consideration by the holder thereof and at the option of the holder
thereof at the office of the corporation or any transfer agent for
the Series A Preferred Stock, into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing
fifteen dollars ($15) by the Series A Conversion Price, determined
as hereinafter provided, in effect at the time of conversion. The
conversion price at which shares of Common Stock shall be
deliverable upon conversion of Series A Preferred Stock without the
payment of any additional consideration by the holder thereof (the
"Series A Conversion Price") shall initially be one dollar and fifty
five cents ($1.55). Such initial Series A Conversion Price shall be
subject to adjustment, in order to adjust the number of shares of
Common Stock into which the Series A Preferred Stock is convertible,
as hereinafter provided.
(b) Mechanics of Conversion. No fractional shares of Common
Stock shall be issued upon conversion of the Series A Preferred
Stock. In lieu of any fractional shares to which the holder would
otherwise be entitled, the corporation shall pay cash equal to such
fraction multiplied by the average of the highest ask price and the
lowest bid price (or average of the highest price and lowest price
for the Common Stock, if the shares a listed on an exchange or
quoted on an automated quotation system) for the trading day
immediately prior to the date the duly endorsed stock certificate
for the shares of Series A Preferred Stock to be converted are
properly surrendered to the corporation. Before any holder of Series
A Preferred Stock shall be entitled to convert the same into full
shares of Common Stock, he shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the
corporation or of any transfer agent for the Series A Preferred
Stock, and shall give written notice to the corporation at such
office that he elects to convert the same and shall state therein
his name or the name or names of his nominees in which he wishes the
certificate or certificates for shares of Common Stock to be issued.
The corporation shall, as soon as practicable thereafter, issue and
deliver at such office to such holder of Series A Preferred Stock,
or to his nominee or nominees, a certificate or certificates for the
number of shares of Common Stock to which he shall be entitled as
aforesaid, together with cash in lieu of any fraction of a share.
Such conversion shall be deemed to have been made immediately prior
to the close of business on the date of such surrender of the shares
of Series A Preferred Stock to be converted, and the person or
persons entitled to receive the shares of Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on such date.
(c) Adjustments to Series A Conversion Price for Diluting
Issues:
(i) Special Definitions. For purposes of this Subsection
3(c) the following definitions shall apply:
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(1) "Option" shall mean rights, options or
warrants to subscribe for, purchase or otherwise acquire
either Common Stock or Convertible Securities.
(2) "Original Issue Date" for the Series A
Preferred Stock shall mean the date on which the first
share of said Series A Preferred Stock was originally
issued.
(3) "Convertible Securities" shall mean any
evidences of indebtedness, shares (other than Common
stock and Series A Preferred Stock) or other securities
directly or indirectly convertible into or exchangeable
for Common Stock.
(4) "Additional Shares of Common Stock" shall mean
all shares of Common Stock issued (or, pursuant to
Subsection 3(c)(iii), deemed to be issued) by the
corporation after the Original Issue Date, but shall not
include shares of Common Stock issued or issuable:
(A) upon conversion of shares of Series A
Preferred Stock; and
(B) by way of dividend or other distribution
on shares of Common Stock excluded from the
definition of Additional Shares of Common Stock by
the foregoing clause (A) or this clause (B) or on
shares of Common Stock so excluded.
(ii) No adjustment of Series A Conversion Price. No
adjustment in the number of shares of Common Stock into which
the Series A Preferred Stock is convertible shall be made, by
adjustment in the Series A Conversion Price in respect of the
issuance of Additional Shares of Common Stock or otherwise,
unless the consideration per share for an Additional Share of
Common Stock issued or deemed to be issued by the corporation
is less than the Series A Conversion Price in effect on the
date of, and immediately prior to, the issue of such
Additional Share.
(iii) Issue of Securities Deemed Issue of Additional
Shares of Common Stock.
(1) Options and Convertible Securities. In the
event the corporation at any time or from time to time
after the Original Issue Date shall issue any Options or
Convertible Securities or shall fix a record date for
the determination of holders of any class of securities
entitled to receive any such Options or Convertible
Securities, then the maximum number of shares (as set
forth in the instrument relating thereto without regard
to any provisions contained therein for a subsequent
adjustment of such number) of
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Common Stock issuable upon the exercise of such Options
or, in the case of Convertible Securities and Options
therefore, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional
Shares of Common Stock issued as of the time of such
issue or, in case such a record date shall have been
fixed, as of the close of business on such record date,
provided that Additional Shares of Common Stock shall
not be deemed to have been issued unless the
consideration per share (determined pursuant to
Subsection 3(c)(v) hereof), of such Additional Shares of
Common Stock would be less than the Series A Conversion
Price in effect on the date of and immediately prior to
such issue, or such record date, as the case may be, and
provided further that in any such case in which
Additional Shares of Common Stock are deemed to be
issued:
(A) no further adjustment in the Series A
Conversion Price shall be made upon the subsequent
issue of Convertible Securities or shares of
Common Stock upon the exercise of such Options or
conversion or exchange of such Convertible
Securities;
(B) if such Options or Convertible
Securities by their terms provide, with the
passage of time or otherwise, for any increase in
the consideration payable to the corporation, or
decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or
exchange thereof, the Series A Conversion Price
computed upon the original issue thereof (or upon
the occurrence of a record date with respect
thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such
increase or decrease insofar as it affects such
Options or the rights of conversion or exchange
under such Convertible Securities;
(C) upon the expiration of any such options
or any rights of conversion or exchange under such
Convertible Securities that shall not have been
exercised, the Series A Conversion Price computed
upon the original issue thereof (or upon the
occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon,
shall upon such expiration, be recomputed as if:
(I) in the case of Convertible
Securities or Options for Common Stock the
only Additional Shares of Common Stock
issued were the shares of Common Stock, if
any, actually issued upon the
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exercise of such Options or the conversion
or exchange of such Convertible Securities
and the consideration received therefor was
the consideration actually received by the
corporation for the issue of all such
Options, whether or not exercised, plus the
consideration actually received by the
corporation upon such exercise, or for the
issue of all such Convertible Securities
which were actually converted or exchanged,
plus the additional consideration, if any,
actually received by the corporation upon
such conversion or exchange, and
(II) in the case of Options for
Convertible Securities only the Convertible
Securities, if any, actually issued upon the
exercise thereof were issued at the time of
issue of such Options, and the consideration
received by the corporation for the
Additional Shares of Common Stock deemed to
have been then issued was the consideration
actually received by the corporation for the
issue of all such Options, whether or not
exercised, plus the consideration deemed to
have been received by the corporation
(determined pursuant to Subsection 3(c)(v))
upon the issue of the Convertible Securities
with respect to which such Options were
actually exercised;
(D) no readjustment pursuant to clause (B)
or (C) above shall have the effect of increasing
the Series A Conversion Price to an amount which
exceeds the lower of (i) the Series A Conversion
Price on the original adjustment date, or, (ii)
the Series A Conversion Price that would have
resulted from any issuance of Additional Shares of
Common Stock between the original adjustment date
and such readjustment date;
(E) in the case of any Options which expire
by their terms not more than 30 days after the
date of issue thereof, no adjustment of the Series
A Conversion Price shall be made until the
expiration or exercise of all such Options,
whereupon such adjustment shall be made in the
same manner provided in clause (C) above; and
(F) if such record date shall have been
fixed and such Options or Convertible Securities
are not issued on the date fixed therefor, the
adjustment previously made in the Series A
Conversion Price which became effective on such
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record date shall be canceled as of the close of
business on such record date, and thereafter the
Series A Conversion Price shall be adjusted
pursuant to this Subsection 3(c)(iii) as of the
actual date of their issuance.
(2) Stock Dividends, Stock Distributions and
Subdivisions. In the event the corporation at any time
or from time to time after the Original Issue Date shall
declare or pay any dividend or make any other
distribution on the Common Stock payable in Common
Stock, or effect a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise than
by payment of a dividend in Common Stock), then and in
any such event, Additional Shares of Common Stock shall
be deemed to have been issued:
(A) in the case of any such dividend or
distribution, immediately after the close of
business on the record date for the determination
of holders of any class of securities entitled to
receive such dividend or distribution, or
(B) in the case of any such subdivision, at
the close of business on the date immediately
prior to the date upon which such corporate action
becomes effective.
If such record date shall have been fixed and such
dividend shall not have been fully paid on the date
fixed therefor, the adjustment previously made in the
Series A Conversion Price which became effective on such
record date shall be canceled as of the close of
business on such record date, and thereafter the Series
A Conversion Price shall be adjusted pursuant to this
Subsection 3(c)(vi) as of the time of actual payment of
such dividend.
(iv) Adjustment of Series A Conversion Price of Series A
Preferred Stock Upon Issuance of Additional Shares on Common
Stock. In the event the corporation shall issue Additional
Shares of Common Stock (including Additional Shares of Common
Stock deemed to be issued pursuant to SUBSECTION 3(c)(iii),
without consideration or for a consideration per share less
than the Series A Conversion Price for shares of Series A
Preferred Stock in effect on the date of and immediately prior
to such issue, then and in such event, such Series A
Conversion Price for shares of Series A Preferred Stock shall
be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) equal to the consideration
per share for which such Additional Shares are issued.
(v) Determination of Consideration. For purposes of this
SUBSECTION 3(c), the consideration received by the corporation
for the
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issue of any Additional Shares of Common Stock shall be
computed as follows:
(1) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be
computed at the aggregate amount of cash received
by the corporation excluding amounts paid or
payable for accrued interest or accrued dividends;
(B) insofar as it consists of property other
than cash, be computed at the fair value thereof
at the time of such issue, as determined in good
faith by the Board of Directors; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares or
securities or other assets of the corporation for
consideration which covers both, be the proportion
of such consideration so received, computed as
provided in clauses (A) and (B) above, as
determined in good faith by the Board of
Directors.
(2) Options and Convertible Securities. The
consideration per share received by the corporation for
Additional Shares of Common Stock deemed to have been
issued pursuant to SUBSECTION 3(c)(iii)(1), relating to
Options and Convertible Securities, shall be determined
by dividing
(A) the total amounts, if any, received or
receivable by the corporation as consideration for
the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of
additional consideration (as set forth in the
instruments relating thereto, without regard to
any provision contained therein for a subsequent
adjustment of such consideration) payable to the
corporation upon the exercise of such Options or
the conversion or exchange of such Convertible
Securities, or in the case of Options for
Convertible Securities, the exercise of such
Options for Convertible Securities and the
conversion or exchange of such Convertible
Securities, by
(B) the maximum number of shares of Common
Stock (as set forth in the instruments relating
thereto, without regard to any provision contained
therein for a subsequent adjustment of such
number) issuable upon the
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exercise of such Options or the conversion or
exchange of such Convertible Securities.
(vi) Adjustments for Dividends, Distributions,
Subdivisions, Combinations or Consolidation of Common Stock.
(1) Stock Dividends, Stock Distributions or
Subdivisions. In the event the corporation shall issue
Additional Shares of Common Stock pursuant to SUBSECTION
3(c)(iii)(2) in a stock dividend, stock distribution or
subdivision, the Series A Conversion Price in effect
immediately prior to such stock dividend, stock
distribution or subdivision shall, concurrently with the
effectiveness of such stock dividend, stock distribution
or subdivision, be proportionately increased.
(2) Combinations or Consolidations. In the event
the outstanding shares of Common Stock shall be combined
or consolidated, by reclassification or otherwise, into
a lesser number of shares of Common Stock, the Series A
Conversion Price in effect immediately prior to such
combination or consolidation shall, concurrently with
the effectiveness of such combination or consolidation,
be proportionately decreased.
(vii) Adjustment for Merger or Reorganization, etc. In
case of any consolidation or merger of the corporation with or
into another corporation or the conveyance of all or
substantially all of the assets of the corporation to another
corporation, each share of Series A Preferred Stock shall
thereafter be convertible into the number of shares of stock
or other securities or property to which a holder of the
number of shares of Common Stock of the corporation
deliverable upon conversion of such Series A Preferred Stock
would have been entitled upon such consolidation, merger, or
conveyance; and, in any such case, appropriate adjustment (as
determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to
the rights and interest thereafter of the holders of the
Series A Preferred Stock, to the end that the provisions set
forth herein (including provisions with respect to changes in
and other adjustments of the Series A Conversion Price) shall
thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter
deliverable upon the conversion of the Series A Preferred
Stock.
(d) No Impairment. The corporation will not, by amendment of
its Articles of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be
observed or performed hereunder by the corporation but will at all
times in good faith assist in the carrying out of all the provisions
of this SECTION 3
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and in the taking of all such action as may be necessary or
appropriate in order to protect the Series A Conversion Rights of
the holders of the Series A Preferred Stock against impairment.
(e) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Series A Conversion Price pursuant
to this SECTION 3, the corporation at its expense shall promptly
compute such adjustment or readjustment in accordance with the terms
hereof and furnish to each holder of Series A Preferred Stock a
certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or
readjustment is based. The corporation shall, upon the written
request at any time of any holder of Series A Preferred Stock,
furnish or cause to be furnished to such holder a like certificate
setting forth (i) such adjustments and readjustments, (ii) the
Series A Conversion Price at the time in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other
property which at the time would be received upon the conversion of
Series A Preferred Stock.
(f) Notice of Record Date. In the event of any taking by the
corporation of a record of the holders of any class of securities
for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than a cash dividend which is the
same as cash dividends paid in previous quarters) or other
distribution, the corporation shall mail to each holder of Series A
Preferred Stock at least ten (10) days prior to the date specified
herein, a notice specifying the date on which any such record is to
be taken for the purpose of such dividend or distribution.
(g) Common Stock Reserved. The corporation shall reserve and
keep available, out of its authorized Common Stock, such number of
shares of Common Stock as shall from time to time be sufficient to
effect conversion of the Series A Preferred Stock.
SECTION 4. Mandatory Conversion. Upon the third anniversary of the
initial issuance of the Series A Preferred Stock, the holders of shares of
Series A Preferred Stock will be required to convert their shares of
Series A Preferred Stock into shares of Common Stock at the Series A
Conversion Price in effect on the third anniversary of the initial
issuance of the Series A Preferred Stock. On the third anniversary of the
initial issuance of the Series A Preferred Stock, outstanding shares of
Series A Preferred Stock will represent only the right to receive the
number of shares of Common Stock into which such shares are convertible.
SECTION 5. Voting Rights.
(a) Voting Rights. Except as otherwise provided by law, the
holders of shares of Series A Preferred Stock and the holders of
Common Stock shall be entitled to vote upon any matter submitted to
a shareholder for a vote on the following basis:
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(i) holders of Common Stock shall have one vote per
share; and
(ii) holders of Series A Preferred Stock shall have that
number of votes per share as is equal to the number of shares
of Common Stock into which each such share of Series A
Preferred Stock held by such holder is convertible on the
record date of the shareholder meeting.
(b) Notice. The holders of Series A Preferred Stock shall,
concurrent with holders of Common Stock, be entitled to receive
notice of all meetings of the shareholders.
(c) Class Voting. There shall be no class voting except as
required by law.
SECTION 6. Cash Dividend Rights. Each share of Series A Preferred
Stock shall participate in cash dividends out of assets of the corporation
legally available for payment, when and as declared, to be paid on the
Common Stock, as if such share of Series A Preferred Stock were fully
converted into shares of Common Stock on the record date for the cash
dividend on the Common Stock. No cash dividends shall be declared or paid,
per share, on the Common Stock unless at the same time a like amount of
cash dividends per share of Common Stock into which an outstanding share
of Series A Preferred Stock is convertible is paid on each outstanding
share of Series A Preferred Stock.
SECTION 7. Redemption Rights.
(a) Right of Redemption. Share of Series A Preferred Stock may
be redeemed at the election of the corporation as a whole or from
time to time in part at any time after the date of the first share
of Series A Preferred Stock is issued, and the Redemption Price as
specified in SUBSECTION 7(b).
(b) Redemption Price. The Redemption price for shares of
Series A Preferred Stock shall be $18.00 per share.
(c) Notice of Redemption. The corporation will mail by
registered mail written notice of each redemption of Series A
Preferred Stock to each record holder of Series A Preferred Stock
not more than 50 nor less than 30 days prior to the date on which
such redemption is to be made. Upon mailing any notice of redemption
which relates to a redemption at the corporation's option, the
corporation will become obligated to redeem the total number of
Series A Preferred Stock specified therein at the time of redemption
specified therein (the "Redemption Date"). In case fewer than the
total number of Series A Preferred Stock represented by any
certificate are redeemed, the corporation will issue a new
certificate representing the number of unredeemed Series A Preferred
Stock to the holder thereof without cost to such holder.
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(d) Dividends After Redemption Date. No share of Series A
Preferred Stock is entitled to any cash dividends accruing after its
Redemption Date. On such Redemption Date, all rights of the holder
of such share will cease, and such share will not be deemed to be
outstanding.
(e) Redeemed or Otherwise Acquired Series A Preferred Stock.
Any share of Series A Preferred Stock that is redeemed or otherwise
acquired by the corporation will be canceled and will not be
reissued, sold or transferred.
(f) Determination of the Number of Shares to Be Redeemed from
Each Holder. Except as otherwise provided herein, the number of
shares of Series A Preferred Stock to be redeemed from each holder
thereof in redemptions hereunder will be the number of Series A
Preferred Stock determined by multiplying the total number of Series
A Preferred Stock to be redeemed times a fraction, the numerator of
which will be the total number of Series A Preferred Stock then held
by such holder and the denominator of which will be the total of
Series A Preferred Stock then outstanding.
SECTION 8. Residual Rights. All rights accruing to the outstanding
shares of the corporation not expressly provided for to the contrary
herein shall be vested in the Common Stock.
IN WITNESS WHEREOF, OMNI EXPLORATION, INC. has caused this Certificate of
Designation of Preferences and Rights of Series A Preferred Stock to be duly
executed by its President and attested to by its Secretary and has caused its
corporate seal to be affixed hereto, this 29th day of September, 1992.
OMNI EXPLORATION, INC.
By: /s/ Michael R. Gilbert
-------------------------------
Michael R. Gilbert, President
(Corporate Seal)
ATTEST:
/s/ Susan H. Rader
- -----------------------------------------
Susan H. Rader, Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OMNI EXPLORATION, INC.
OMNI EXPLORATION, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of Delaware, does hereby certify:
FIRST: That Board of Directors of OMNI EXPLORATION, INC. duly adopted
resolutions setting forth an amendment to the Certificate of Incorporation of
said corporation (the "Amendment"), declaring the Amendment to be advisable and
calling for the submission of the proposed Amendment to the stockholders of the
Corporation for consideration thereof. The resolution setting forth the proposed
Amendment is as follows:
RESOLVED, that Article FOURTH of the Certificate of Incorporation of
this Corporation be amended to add a new paragraph at the end of Article
FOURTH, which new paragraph shall read in its entirety as follows:
As of the effectiveness of this Certificate of Amendment (the
"Effective Time"), each outstanding share of Common Stock of the
Corporation issued immediately prior to the Effective Time
(including shares held in the treasury of the Corporation) shall
automatically be reclassified as and changed into 1/1000th of a
share of Common Stock of the Corporation, par value $0.01 per share,
without any action on the part of the holder thereof; provided,
however, that fractional shares of Common Stock will not be issued
and each person who otherwise would hold a fractional share of
Common Stock after the Effective Time shall be entitled to receive
in lieu thereof cash in the amount equal to such fractional interest
multiplied by $90.00.
SECOND: That thereafter pursuant to a resolution of the Board of
Directors, an annual meeting of the stockholders of the Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the Amendment.
THIRD: That the Amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the Effective Time of this Amendment shall be 4:35 p.m.
Eastern Daylight Time on the date this Certificate of Amendment is filed with
the Secretary of State of the State of Delaware.
- 1 -
IN WITNESS WHEREOF, OMNI EXPLORATION, INC. has caused this certificate to
be signed by Michael R. Gilbert, its President, and Susan H. Rader, its
Secretary, this 29th day of September, 1992.
OMNI EXPLORATION, INC.
By: /s/ Michael R. Gilbert
------------------------------
Michael R. Gilbert, President
ATTEST: /s/ Susan H. Rader
--------------------------------
Susan H. Rader, Secretary
- 2 -
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OMNI EXPLORATION, INC.
OMNI EXPLORATION, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of Delaware, does hereby certify:
FIRST: That the Board of Directors of OMNI EXPLORATION, INC. duly adopted
resolutions setting forth an amendment to the Certificate of Incorporation of
said corporation (the "Amendment"), declaring the Amendment to be advisable and
calling for the submission of the proposed Amendment to the stockholders of the
Corporation for consideration thereof. The resolution setting forth the proposed
Amendment is as follows:
RESOLVED, that Article FOURTH of the Certificate of Incorporation of
this Corporation be amended to add a new paragraph at the end of Article
FOURTH, which new paragraph shall read in its entirety as follows:
As of the effectiveness of this Certificate of Amendment (the
"Effective Time"), each outstanding share of Common Stock, par value
$0.01 per share, of the Corporation issued immediately prior to the
Effective Time (including shares held in the treasury of the
Corporation) shall automatically be reclassified as and changed into
70 validly issued, fully paid and nonassessable shares of Common
Stock of the Corporation, par value $0.01 per share, without any
action on the part of the holder hereof. Upon the effectiveness of
this amendment, each certificate representing shares of Common Stock
immediately prior to the effectiveness of this amendment shall
represent such number of shares of Common Stock, par value $0.01 per
share, as is equal to such number of shares of Common Stock held
immediately prior to the effectiveness of this amendment multiplied
by 70.
SECOND: That thereafter pursuant to a resolution of the Board of
Directors, an annual meeting of the stockholders of the Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the Amendment.
THIRD: That the Amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the Effective Time of this Amendment shall be 4:45 p.m.
Eastern Daylight Time on the date this Certificate of Amendment is filed with
the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, OMNI EXPLORATION, INC. has caused this certificate
to be signed by Michael R. Gilbert, its President, and Susan H. Rader, its
Secretary, this 29th Day of September, 1992.
OMNI EXPLORATION, INC.
By: /s/ Michael R. Gilbert
--------------------------------
Michael R. Gilbert, President
ATTEST: /s/ Susan H. Rader
-----------------------------
Susan H. Rader, Secretary
- 2 -
CERTIFICATE OF MERGER
OF
CAIRN ENERGY USA, INC.
(A DELAWARE CORPORATION)
INTO
OMNI EXPLORATION, INC.
(A DELAWARE CORPORATION)
The undersigned corporation organized and existing under the General
Corporation Law of the State of Delaware hereby certifies that:
FIRST: That the name and state of incorporation of each of the
constituent corporations to the merger are as follows:
NAME STATE OF INCORPORATION
---- ----------------------
CAIRN ENERGY USA, INC. Delaware
OMNI EXPLORATION, INC. Delaware
SECOND: That an Agreement and Plan of merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the surviving corporation in the merger is OMNI EXPLORATION,
INC.
FOURTH: That the Certificate of Incorporation of OMNI EXPLORATION, INC. in
effect immediately prior to the merger shall be the Certificate of Incorporation
of the surviving corporation; except that, upon the effectiveness of this
Certificate of Merger, Article FIRST of the surviving corporation's Certificate
of Incorporation shall be amended to read in its entirety as follows:
FIRST. Name. The name of the Corporation is Cairn Energy USA, Inc.
FIFTH: That the executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation, which is located at
8325 Douglas Ave., Suite 1221, Dallas, Texas 75225.
SIXTH: That a copy of the Agreement and Plan of Merger will be furnished
by the surviving corporation, on request and without cost, to any stockholder of
any constituent corporation.
SEVENTH: That the effective time of this Certificate of Merger shall be
4:55 p.m. Eastern Daylight Time on the date this Certificate of Merger is filed
with the Secretary of State of the State of Delaware.
Dated September 29, 1992
OMNI EXPLORATION, INC.
By: /s/ Michael R. Gilbert
---------------------------------
Michael R. Gilbert, President
ATTEST: /s/ Susan H. Rader
------------------------------
Susan H. Rader, Secretary
- 2 -
CERTIFICATE OF CORRECTION
FILED TO CORRECT A CERTAIN INACCURACY OR ERROR IN THE
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS OF SERIES A
PREFERRED STOCK
OF
CAIRN ENERGY USA, INC.
Cairn Energy USA, Inc., formerly Omni Exploration, Inc. and a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY THAT:
1. That name of the corporation is Cairn Energy USA, Inc.
2. The Certificate of Designation of Preferences and Rights of Series A
Preferred Stock of Omni Exploration, Inc., which was filed by the Secretary of
State of the State of Delaware on September 29, 1992 and recorded in the office
of the Recorder of Deeds of New Castle County, Delaware on September 29, 1992
(the "Certificate"), requires correction as permitted by subsection (f) of
Section 103 of the General Corporation Law of the State of Delaware.
3. The inaccuracy or defect to be corrected in the Certificate is as
follows:
A. Subsection 3(a) of the Certificate omitted the words "On or after
the first anniversary of the first issuance of shares of Series A
Preferred Stock" at the beginning of such subsection and consequently such
omitted words need to be inserted before the first word of Subsection
3(a), "Each," and "Each" needs to begin with a lowercase letter.
B. The last word of Subsection 3(c)(vi)(1) should have been
"decreased" instead of "increased."
C. The last word of Subsection 3(c)(vi)(2) should have been
"increased" instead of "decreased."
4. The pertinent subsections of the Certificate in corrected form are as
follows:
A. Subsection 3(a) of the Certificate is corrected as follows:
SECTION 3. Conversion. The holders of shares of Series A
Preferred Stock shall have conversion rights as follows (the
"Conversion Rights"):
(a) Right to Convert. On or after the first anniversary
of the first issuance of shares of Series A Preferred Stock,
each share of Series A Preferred Stock shall be convertible,
without the payment of any additional consideration by the
holder thereof and at the option of the holder thereof at the
office of the corporation or any transfer agent for the Series
A Preferred Stock, into such number of fully paid and
nonassessable shares of Common Stock as is determined by
dividing fifteen dollars ($15) by the Series A Conversion
Price, determined as hereinafter provided, in effect at the
time of conversion. The conversion price at which shares of
Common Stock shall be deliverable upon conversion of Series A
Preferred Stock without the payment of any additional
consideration by the holder thereof (the "Series A Conversion
Price") shall initially be one dollar and fifty five cents
($1.55). Such initial Series A Conversion Price shall be
subject to adjustment, in order to adjust the number of shares
of Common Stock into which the Series A Preferred Stock is
convertible, as hereinafter provided.
B. Subsection 3(c)(vi)(1) of the Certificate is corrected as
follows:
(1) Stock Dividends, Stock Distributions or
Subdivisions. In the event the corporation shall issue
Additional Shares of Common Stock pursuant to SUBSECTION
3(c)(III)(2) in a stock dividend, stock distribution or
subdivision, the Series A Conversion Price in effect
immediately prior to such stock dividend, stock
distribution or subdivision shall, concurrently with the
effectiveness of such stock dividend, stock distribution
or subdivision, be proportionately decreased.
C. Subsection 3(c)(vi)(2) of the Certificate is corrected as
follows:
(2) Combinations or Consolidations. In the event
the outstanding shares of Common Stock shall be combined
or consolidated, by reclassification or otherwise, into
a lesser number of shares of Common Stock, the Series A
Conversion Price in effect immediately prior to such
combination or consolidation shall, concurrently with
the effectiveness of such combination or consolidation,
be proportionately increased.
Signed and attested to on November 9, 1992.
Cairn Energy, Inc.
formerly Omni Exploration, Inc.
/s/ Michael R. Gilber
-----------------------------------
Michael R. Gilbert, President
ATTEST:
/s/ Susan H. Rader
- -----------------------------------------
Susan H. Rader, Secretary
- 2 -