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Exhibit 3.1
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, territory, province,
municipality or other political subdivision or by any governmental agency, and
as owner thereof
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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 220,000,000 which shall be divided
into (a) 215,000,000 shares of common stock having a par value of $1.25 per
share and (b) 5,000,000 shares of no par value preferred stock.
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:
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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 no 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.
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.
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.
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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, 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.
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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.
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
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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 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.
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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 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,
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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 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.
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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 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
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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 William J. Johnson, its President,
and attested by Cheri L. Peper, its Assistant Secretary, this 1st day of
December, 1993.
APACHE CORPORATION
By: /s/ WILLIAM J. JOHNSON
William J. Johnson, President
ATTEST:
By: /s/ CHERI L. PEPER
Cheri L. Peper
Assistant Secretary
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