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EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
UNION TEXAS PETROLEUM HOLDINGS, INC.
UNION TEXAS PETROLEUM HOLDINGS, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), DOES HEREBY CERTIFY THAT:
FIRST: At a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted setting forth a proposed amendment to the
Restated Certificate of Incorporation of the Corporation, declaring said
amendment to be advisable and directing that the amendment proposed be
considered at the next annual meeting of the stockholders of the Corporation.
The resolution setting forth the proposed amendment is as follows:
NOW, THEREFORE, BE IT RESOLVED, that Article Fourth of the Restated
Certificate of Incorporation of the Company (the "Certficate") be amended (i)
to change the total number of shares of all classes of capital stock which the
Company shall have authority to issue from 202,000,000 to 215,000,000 shares,
(ii) to increase the authorized number of shares of Preferred Stock from
2,000,000 shares to 15,000,000 shares, and (iii) to change the par value of the
Preferred Stock from one dollar ($1.00) per share to one cent ($.01) per share,
so the first paragraph of Article Fourth shall be amended to read in its
entirety as follows:
"The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is Two Hundred
Fifteen Million (215,000,000), of which Fifteen Million (15,000,000)
shares shall be Preferred Stock of the par value one cent ($.01) per
share and Two Hundred Million (200,000,000) shares shall be Common
Stock of the par value of five cents ($.05) per share."
FURTHER RESOLVED, that Section A of Article Fourth, entitled "Preferred
Stock," be amended to read in its entirety as follows:
A. Preferred Stock. The Board of Directors is expressly
authorized to provide for the issue of all or any shares of the
Preferred Stock, in one or more series, and to fix for each such
series such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional
or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in
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the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (a "Preferred Stock
Designation") and as may be permitted by the General Corporation Law of
the State of Delaware. The number of authorized shares of Preferred
Stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a
majority of the voting power of all of the then outstanding shares of
the capital stock of the Corporation entitled to vote generally in the
election of directors (the "Voting Stock") voting together as a single
class, without a separate vote of the holders of the Preferred Stock,
or any series thereof, unless a vote of any such holders is required
pursuant to any Preferred Stock Designation."
SECOND: Thereafter, pursuant to resolution of its Board of Directors,
an annual meeting of 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 said amendment.
THIRD: The aforesaid amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, UNION TEXAS PETROLEUM HOLDINGS, INC. has caused
this certificate to be signed by Newton W. Wilson, III, its General Counsel,
Vice President-Administration and Secretary, this 10th day of May, 1995.
UNION TEXAS PETROLEUM HOLDINGS, INC.
By: /s/ NEWTON W. WILSON, III
-----------------------------------------
Newton W. Wilson, III
General Counsel, Vice President -
Administration and Secretary
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RESTATED CERTIFICATE OF INCORPORATION
OF
UNION TEXAS PEROLEUM HOLDINGS, INC.
(Incorporated on December 9, 1982)
FIRST: The name of the Corporation is:
UNION TEXAS PETROLEUM HOLDINGS, INC.
SECOND: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is Two Hundred Two Million
(202,000,000) of which Two Million (2,000,000) shares shall be Preferred Stock
of the par value of One Dollar ($1.00) per share and Two Hundred Million
(200,000,000) shares shall be Common Stock of the par value of five cents
($.05) per share.
A. Preferred Stock. Except with respect to the series of Preferred Stock
expressly herein designated in this Article Fourth, the Board of Directors is
expressly authorized to provide for the issue of all or any shares of the
Preferred Stock, in one or more series, and to fix for each such series such
voting powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated
and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such series (a "Preferred Stock
Designation") and as may be permitted by the General Corporation Law of the
State of Delaware. The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors (the
"Voting Stock") voting together as a single class, without a separate vote of
the holders of the Preferred Stock, or any series thereof, unless a vote of
any such holders is required pursuant to any Preferred Stock Designation.
A Certificate of Designation creating a series of Cumulative Preferred
Stock providing for an issue of 1,000,000 shares of Preferred Stock designated
"8% Cumulative Series B Preferred Stock" was filed with the Secretary of State
of Delaware on June 27, 1985. Each share of the 8% Cumulative Series B
Preferred Stock is hereby converted into, reclassified and redesignated as a
share of 20% Series B Redeemable Stock as hereinafter designated. A Certificate
of Designation creating a series of Cumulative Preferred Stock providing for an
issue of 1,000,000 shares of Preferred Stock designated "Cumulative Series C
Preferred Stock" was filed with the Secretary of State of Delaware on
November 15, 1985. Each share of the Cumulative Series C Preferred Stock is
hereby converted into, reclassified and redesignated as a share of 20.75%
Series C Redeemable Stock as hereinafter designated. The designation,
preferences and relative, participating, optional and other special rights, and
the qualifications, limitations and restrictions of the 20% Series B
Redeemable Preferred Stock and the 20.75% Series C Redeemable Preferred Stock
are as follows:
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1. Designation. The distinctive designations of the two series are
(i) the "20% Series B Redeemable Preferred Stock" (hereinafter, the "Series B
Preferred Stock") and (ii) the "20.75% Series C Redeemable Preferred Stock"
(hereinafter, the "Series C Preferred Stock").
2. Certain Definitions. Unless the context otherwise requires, the terms
defined in this paragraph 2 shall have, for all purposes, the meanings herein
specified.
Dividend Period. The term "Dividend Period" shall have the meaning
set forth in paragraph 3 below.
Junior Stock. The term "Junior Stock" shall mean any class of Common
Stock of the Corporation and any other class or series of stock of the
Corporation, howsoever designated, which is not entitled to receive any
dividends in any Dividend Period unless all dividends required to have been
paid or declared and set apart for payment on the Series B Preferred Stock
and the Series C Preferred Stock shall have been so paid or declared and
set apart for payment or, for purposes of paragraph 4 below, shall mean any
class of Common Stock of the Corporation, howsoever designated, not
entitled to receive any assets upon liquidation, dissolution or winding up
of the affairs of the Corporation until the Series B Preferred Stock and
the Series C Preferred Stock shall have received the entire amount to which
such stock is entitled upon such liquidation, dissolution or winding up.
Liquidation Price. The term "Liquidation Price" shall have the meaning
set forth in paragraph 4 below.
Parity Stock. The term "Parity Stock" shall mean any class or series
of stock of the Corporation entitled to receive payment of dividends on a
parity with the Series B Preferred Stock and the Series C Preferred Stock
or, for purposes of paragraph 4 below, shall mean any other class or series
of stock of the Corporation entitled to receive assets upon liquidation,
dissolution or winding up of the affairs of the Corporation on a parity
with the Series B Preferred Stock and the Series C Preferred Stock. The
Series B Preferred Stock and the Series C Preferred Stock are Parity Stock.
Senior Stock. The term "Senior Stock" shall mean any class or series
of stock of the Corporation ranking senior to the Series B Preferred Stock
and the Series C Preferred Stock in respect of the right to receive
dividends, or, for the purposes of paragraph 4 below, shall mean any
class or series of stock of the Corporation ranking senior to the Series B
Preferred Stock and the Series C Preferred Stock in respect of the right
to participate in any distribution upon liquidation, dissolution or
winding up of the affairs of the Corporation.
3. Dividends. Subject to the prior preferences and other rights of any
Senior Stock, (i) each issued and outstanding share of Series B Preferred
Stock shall entitle the holder of record thereof as of the "record date" to
receive, when and as declared by the Board of Directors, out of any funds
legally available therefor, cash dividends at the rate of 8% per annum for
dividends accruing through September 30, 1987 and 20% per annum for dividends
accruing after September 30, 1987, and no more and (ii) each issued and
outstanding share of Series C Preferred Stock shall entitle the holder of
record thereof as of the "record date" to receive, when and as declared by the
Board of Directors, out of any funds legally available therefor, cash
dividends at the rate of 8.75% per annum for dividends accruing through
September 30, 1987 and 20.75% per annum for dividends accruing after September
30, 1987, and no more. Such dividends shall be payable quarterly on March 31,
June 30, September 30 and December 31 of each year. The quarterly period
between consecutive dates for payment of dividends shall hereinafter be
referred to as a "Dividend Period." As used above, the term "record date" means
March 15, June 15, September 15 and December 15 of each year, or such other
record date designated by the Board of Directors of the Corporation with
respect to the dividend payable on such respective dividend payment date.
If for any Dividend Period holders of the Series B Preferred Stock or the
Series C Preferred Stock shall not receive the full dividends provided for in
this paragraph 3, such unpaid dividends for such Dividend Period shall be
cumulative, and shall accrue without interest on a day-to-
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day basis, whether or not earned or declared, from and after the date when
payment thereof would have been due.
So long as any shares of Series B Preferred Stock or the Series C Preferred
Stock shall be outstanding, the Corporation shall not declare or pay on any
Junior Stock any dividend whatsoever, whether in cash, property or otherwise
(other than dividends payable in shares of any class or series of Junior Stock,
together with cash in lieu of fractional shares), nor shall the Corporation
make any other distribution on any Junior Stock, nor shall any Junior Stock be
purchased or redeemed by the Corporation for value, nor shall any monies be
paid or set apart for a sinking fund for the purchase or redemption of any
Junior Stock, unless (i) all dividends to which the holders of the Series B
Preferred Stock and the Series C Preferred Stock shall have been entitled for
all previous Dividend Periods shall have been paid or declared and a sum or
money sufficient for the payment thereof set apart and (ii) all required
mandatory redemptions of this Series B Preferred Stock and the Series C
Preferred Stock shall have been made; provided, however, that, notwithstanding
the foregoing, the Corporation may at any time repurchase its Junior Stock (x)
as may be required or permitted by the terms of any stock subscription,
purchase or option agreements between the Corporation and employees thereof
existing on September 30, 1987 or (y) pursuant to Section 3 of the Shareholders
Agreement, as amended from time to time, by and among the Corporation and
certain shareholders dated April 19, 1985, a copy of which will be furnished to
any shareholder upon request therefor to the Corporation (the "Shareholders
Agreement").
All dividends on the Series B Preferred Stock and the Series C Preferred
Stock and on any class or series of Parity Stock for any year shall be declared
pro rata so that the amounts of dividends per share declared during such year
on the Series B Preferred Stock, the Series C Preferred Stock and on any class
or series of Parity Stock shall in all cases bear to each other the same
proportions as do the respective full amounts of dividends to which the holders
of the Series B Preferred Stock, the Series C Preferred Stock and each class or
series of Parity Stock would be entitled to be paid, if declared during such
year, and so that the amount of dividends per share declared during such year
on shares of the Series B Preferred Stock and the Series C Preferred Stock
with differing dividend rates bear to each other the same proportions as such
respective dividend rates. In the event of the payment of any dividends for
any period other than a Dividend Period, the amount of the dividend shall be
prorated based on a dividend period of 90 days with three 30-day months.
4. Distributions Upon Liquidation, Dissolution or Winding Up. In the
event of any voluntary or involuntary liquidation, dissolution or other
winding up of the affairs of the Corporation, subject to the prior preferences
and other rights of any Senior Stock, but before any distribution or payment
shall be made to the holders of Junior Stock, the holders of the Series B
Preferred Stock and the Series C Preferred Stock shall be entitled to be paid
$100 per share of Series B Preferred Stock and Series C Preferred Stock (the
"Liquidation Price") plus any accrued and unpaid dividends thereon to the date
of such liquidation or dissolution or such other winding up, and no more, in
cash. If, upon any such liquidation, dissolution or other winding up of the
affairs of the Corporation, the net assets of the Corporation distributable
among the holders of all outstanding shares of the Series B Preferred Stock,
the Series C Preferred Stock and of any Parity Stock shall be insufficient to
permit the payment in full to such holders of preferential amounts to which
they are entitled, then the entire net assets of the Corporation remaining
after the distributions to holders of any Senior Stock of the full amounts to
which they may be entitled shall be distributed among the holders of the Series
B Preferred Stock, the Series C Preferred Stock and any Parity Stock ratably in
proportion to the full amounts to which they would otherwise be respectively
entitled. Neither the consolidation or merger of the Corporation into or with
another corporation or corporations, nor the sale, lease or conveyance of all
or any part of the assets of the corporation to another corporation or
corporations shall be deemed a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this paragraph 4.
5. Voting Rights.
(a) Except as in this paragraph 5 or by law expressly provided, neither
the Series B Preferred Stock nor the Series C Preferred Stock shall have any
right or power to vote on any question or in any proceeding or to be
represented at or to receive notice of any meeting of stockholders. On any
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matters in which the holders of the Series B Preferred Stock and the Series C
Preferred Stock shall be entitled to vote, they shall be entitled to one vote
for each share held.
(b) As long as any shares of the Series B Preferred Stock or the Series
C Preferred Stock are outstanding, the Corporation shall not, without the
consent of the holders of at least two-thirds (2/3) of the aggregate number of
shares of the Series B Preferred Stock and the Series C Preferred Stock and any
other Preferred Stock affected by such matter, as applicable, at the time
outstanding, given in person or by proxy, either in writing or by vote at a
meeting called for the purpose, (i) authorize, create or issue, or increase the
authorized or issued amount of any Senior Stock, or (ii) amend, alter or repeal
any of the provisions of paragraph A of this Article Fourth so as to affect
adversely the rights, powers or preferences of the Series B Preferred Stock or
the Series C Preferred Stock, or of the holders thereof; provided, however,
that the Corporation, without the vote or consent of any holders of the Series
B Preferred Stock or Series C Preferred Stock, may amend the Certificate of
Incorporation to increase the number of authorized shares of Preferred Stock of
the Corporation which are without designation or which are Junior Stock or
Parity Stock, and may authorize, create or issue, or increase the authorized or
issued amount of, any series of Junior Stock and Parity Stock.
(c) Upon the occurence and during the continuance of any of the
following events, the number of directors of the Corporation then constituting
the entire Board of Directors of the Corporation shall automatically be
increased by two directors, without any amendment of the Corporation's Bylaws,
and the holders of the outstanding Series B Preferred Stock or Series C
Preferred Stock, as the case may be, shall have the exclusive right with the
holders of each other outstanding series of Preferred Stock of the Corporation
that also grants such voting right, voting together with such other holders as
a class separate from other classes of stock entitled to vote, to elect two
additional members of the Board of Directors:
(i) Dividends payable on the Series B Preferred Stock or the Series C
Preferred Stock, as the case may be, shall be in arrears in an aggregate
amount equivalent to not less than six full quarterly dividends on the
Series B Preferred Stock or the Series C Preferred Stock at the time
outstanding; or
(ii) Any mandatory redemption payment on the Series B Preferred Stock
or the Series C Preferred Stock, as the case may be, shall not have been
made in accordance with paragraph 6(b) of Article Fourth and shall be in
arrears for a period exceeding 180 days.
At any time when such election rights shall have vested, the Corporation may,
and upon the written request of the holders of record of not less than 20% of
the total number of shares of all series in arrears then outstanding or with
respect to which mandatory redemption payments have not been made shall, call a
special meeting of the holders of such shares to fill such newly-created
directorships for the election of directors. In the case of such written
request, such special meeting shall be held within 90 days after delivery of
such request, and, in each case, at the place and upon notice provided by law
and in the Corporation's Bylaws, provided, that the Corporation shall not be
required to call such a special meeting if such request is received less than
120 days before the date fixed for the next ensuing annual meeting of the
Corporation's stockholders, at which meeting such newly-created directorships
shall be filled by the holders of the Series B Preferred Stock and Series C
Preferred Stock (as the case may be) as provided herein. Such election right
shall continue until such time as all dividends on the Series B Preferred
Stock or the Series C Preferred Stock (as the case may be) for all past dividend
periods and such mandatory redemption payment shall have been paid in full, at
which time the right for the Series B Preferred Stock or the Series C Preferred
Stock (as the case may be) to vote and to be represented at and to receive
notice of meetings shall teminate, except as in this paragraph 5 or by law
expressly provided, subject to revesting in the event of each and every
subsequent default of the character and for the time above mentioned.
At any meeeting of stockholders held for the purpose of electing
directors at which the Series B Preferred Stock or the Series C Preferred Stock
shall have the right, voting as a class with all other holders of Preferred
Stock of the Corporation having such right (the "Preferred Stock Class"), to
elect directors as aforesaid, the presence in person or by proxy of one-third of
the outstanding shares of the Preferred Stock Class shall be required to
constitute a quorum thereof for the election of any
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director by the Preferred Stock Class. If such quorum be present, then such
directors may be elected by the Preferred Stock Class irrespective of whether
stock having such voting power with respect to the election of other directors
as may be present at the meeting in person or by proxy, shall, for the purpose
of electing directors, constitute a quorum for such purpose.
If at any such meeting or adjournment thereof a quorum of the Preferred
Stock Class shall not be present, no election of the directors to be elected
thereby shall take place and the meeting shall be adjourned from time to time
for periods not exceeding 30 days until a quorum of the Preferred Stock Class
is present at such adjourned meeting.
The term of office of all directors in office elected by the Preferred
Stock Class when voting power shall, as aforesaid, become vested in the
Preferred Stock Class shall terminate upon the earlier to occur of 10 days
after the date on which the events described in paragraphs 2(c)(i) and (ii) no
longer exist or the election of any new directors at any meeting of
stockholders called for the purpose of electing directors.
6. Redemption.
(a) Optional. The Corporation may, at its option, redeem out of funds
legally available therefor, at any time, or from time to time, any or all of
the then outstanding shares of the Series B Preferred Stock or the Series C
Preferred Stock, at a redemption price of $100 per share plus the following
redemption premium ("redemption premium") per share (plus an amount equal
to accrued and unpaid dividends, if any, including a partial dividend to the
date of redemption) (hereinafter referred to as the "optional redemption
prices"):
During the
12-month
period beginning
January 1,
1987 $ 52.70
1988 48.40
1989 43.40
1990 37.60
1991 30.90
1992 23.10
1993 14.10
1994 11.00
In the event of a redemption on a day other than January 1 of any year,
the Optional Redemption price shall be $100 per share plus a redemption premium
equal to the redemption premium as of January 1 of the current year less the
product of: (x) the difference between (i) the redemption premium as of
January 1 of the current year and (ii) the redemption premium as of January 1
of the next succeeding year, multiplied by (y) a fraction the numerator of
which is the number of days which have elapsed since January 1 of the current
year (assuming that each month consists of 30 days) and the denominator of
which is 360.
In the event that any of the Warrants (the "Warrants") issued pursuant to
the Warrant Agreement (as amended from time to time, the "Warrant Agreement"),
dated as of September 30, 1987, entered into by the Corporation are
(i) redeemed, (ii) cancelled pursuant to the terms of the Stock Acquisition
Agreement, dated as of April 19, 1985, entered into by the Corporation and
certain other parties, as amended from time to time or (iii) made subject to
an "Accelerated Exercise Date"
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under the Warrant Agreement, then from and after the date of such redemption or
cancellation or such Accelerated Exercise Date the amount of such redemption
premium set forth above shall be adjusted to equal the amount set forth above
multiplied by a fraction, the numerator of which shall be the number of
Warrants remaining outstanding after such redemption, cancellation or
Accelerated Exercise Date (assuming for these purposes that all Warrants made
exercisable on said Accelerated Exercise Date are exercised on such date) and
the denominator of which shall be 3,000,000 (in each case, adjusted for splits,
reclassifications or combinations in the number of Warrants under the Warrant
Agreement).
The redemption price for shares redeemed shall be paid to the holders of
record of the Series B Preferred Stock or the Series C Preferred Stock (as the
case may be) so redeemed on the date of redemption. The Corporation shall give
at least 20 days' but not more than 60 days' prior written notice by first
class mail, postage prepaid, to each holder whose shares are to be redeemed,
notifying such holder of the election of the Corporation to redeem such shares,
the number of shares to be redeemed and the date fixed for redemption. In the
event of a redemption of less than all the outstanding shares of Series B
Preferred Stock or the Series C Preferred Stock, the shares to be redeemed
shall be selected pro rata to the holders thereof.
(b) Mandatory. On December 31, 1993, as a mandatory redemption, the
Corporation shall redeem out of funds legally available therefor at the
redemption price of $100 per share plus an amount equal to accrued and unpaid
dividends thereon an amount of Series B Preferred Stock and the Series C
Preferred Stock at least equal to 66 2/3% of the Series B Preferred Stock and
66 2/3% of the Series C Preferred Stock then outstanding. On December 31,
1994, as a mandatory redemption, the Corporation shall redeem out of funds
legally available therefor at the redemption price of $100 per share plus an
amount equal to accrued and unpaid dividends thereon all then outstanding
shares of the Series B Preferred Stock and the Series C Preferred Stock.
The mandatory redemption price together with an amount equal to accrued
but unpaid dividends shall be paid to the holders of record on such date of
redemption. The Corporation shall give at least 20 days' but not more than
60 days' prior written notice to each holder whose shares are to be redeemed.
In the case of the mandatory redemption at December 31, 1993, the shares to be
redeemed shall be selected pro rata to the holders thereof.
(c) General. From and after any date on which shares of Series B
Preferred Stock or the Series C Preferred Stock (as the case amy be) are
redeemed by the Corporation, such shares shall no longer be deemed to be
outstanding, and all rights of holders of such shares shall cease and
terminate, except the right of the holders of such shares, upon surrender of
certificates therefor, to receive amounts to be paid hereunder.
7. Restrictions on Transfer. The shares of Series B Preferred Stock and
the Series C Preferred Stock may not be sold, transferred, assigned or
hypothecated unless such sale, transfer, assignment or hypothecation is made
pursuant to an effective registration statement under the Securities Act of
1933, as amended, or the Corporation receives an opinion of counsel, reasonably
satisfactory to the Corporation, stating that such sale, transfer, assignment
or hypothecation is exempt from the registration and prospectus delivery
requirements of such Act. Each certificate representing shares of Series B
Preferred Stock and the Series C Preferred Stock shall bear a legend to the
foregoing effect unless the Corporation shall have received an opinion of
counsel, reasonably staisfactory to the Corporation, to the effect that such
legend may be removed under such Act.
8. Staus of Reacquired Shares. Shares of the Series B Preferred Stock
and the Series C Preferred Stock which have been issued and reacquired or
redeemed in any manner shall (upon compliance with any applicable provisions of
the laws of the State of Delaware) have the status of authorized and unissued
shares of the Series B Preferred Stock or the Series C Preferred Stock (as the
case may be) issuable in the same series designated hereby.
9. Exclusion of Other Rights. Except as may otherwise be required by
law, the shares of the Series B Preferred Stock and the Series C Preferred
Stock shall not have any preference or relative, participating, optional or
other special rights, other than those specifically set forth in this Restated
Certificate of Incorporation (as it may be amended from time to time). The
shares of the
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Series B Preferred Stock and the Series C Preferred Stock shall have no
preemptive or subscription rights.
B. Common Stock. Except as provided in paragraph A of this Article
Fourth and as otherwise required by law or as otherwise provided in any
Preferred Stock Designation, the holders of the Common Stock shall exclusively
possess all voting power, and each share of Common Stock shall have one vote.
FIFTH: A. Number, election and terms of directors. Subject to the
rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the number of directors shall be fixed
from time to time exclusively by the Board of Directors.
B. Stockholder nomination of director candidates and introduction of
business. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the Corporation shall be given in the manner provided in
the Bylaws of the Corporation.
C. Newly created directorships and vacancies. Subject to the rights of
the holders of any series of Preferred Stock, and unless the Board of Directors
otherwise determines, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the next annual meeting of
stockholders and until such director's successor shall have been duly elected
and qualified.
SIXTH: The Board of Directors is expressly authorized to adopt, amend or
repeal the Bylaws of the Corporation. Election of directors need not be by
ballot.
SEVENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit.
If the Delaware General Corporation Law hereafter is amended to authorize
the further elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this paragraph by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation of the personal
liability of a director of the Corporation existing at the time of such repeal
or modification.
EIGHTH: Any (a) stockholder of the Corporation, (b) affiliate, partner,
stockholder or other person having a financial interest in any such stockholder
of the Corporation or (c) officer, director or employee of the Corporation in
his capacity as a stockholder, partner or other person having a financial
interest in, or as an officer, director or employee of any person or entity
referred to in clauses (a) and (b) above (persons and entities referred to in
clauses (a), (b) and (c) above being herein collectively referred to as "Related
Persons"), may engage in or possess an interest in other business ventures of
every nature and description, independently or with others, whether such
ventures are competitive with the Corporation or otherwise, and neither the
Corporation nor its stockholder shall have any right in or to such independent
ventures or to the income or profits derived thereform except as may otherwise
be required by law to the extent that (i) the other business venture involves a
contract or transaction which was offered to such Related Person in its
capacity as the Corporation's agent and wrongfully appropriated by it; or
(ii) the Corporation had an enforceable legal interest in the contract or
transaction at the time it was initially offered to such Related Person; or
(iii) such Related Person made substantial use of the assets, personnel,
facilities or resources of the Corporation in obtaining or developing a
contract or transaction for its benefit; or (iv) a contract or transaction was
otherwise the property of the Corporation and was neither entered into nor
engaged
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in in connection with an ongoing business enterprise owned or operated by a
Related Person nor involved the acquisition of such a business enterprise by a
Related Person.
(b) The existence or presence of one or more of the factors set forth
in subparagraph (a) above shall not conclusively entitle the Corporation to the
benefit of a contract or transaction referred to therein.
NINTH: Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken for or in connection with any corporate
action by any provisions of the statutes or of the Certificate of
Incorporation, the meeting and vote of stockholders may be dispensed with if
the stockholders having not less than a majority of all shares entitled to vote
if such meeting were held shall consent in writing to such corporate action
being taken.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation,
and any other provisions authorized by the laws of the State of Delaware at the
time in force may be added or inserted, in the manner now or hereafter provided
herein or by statute, and all rights, preferences and privileges of whatsoever
nature conferred upon stockholders, directors or any other persons whomsoever
by and pursuant to this Restated Certificate of Incorporation in its present
form or as amended are granted subject to the rights reserved in this Article.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and integrates and further amends the provisions of the Restated
Certificate of Incorporation of this Corporation and reclassifies certain
series of Preferred Stock of the Corporation and has been duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware, has been executed by its Chief Executive Officer and attested by
its Secretary on this the 30th day of September, 1987.
UNION TEXAS PETROLEUM HOLDINGS, INC.
By: /s/ A. CLARK JOHNSON
------------------------------------
A. Clark Johnson
Chief Executive Officer
ATTEST:
/s/ NEWTON W. WILSON,III
- ---------------------------------
Newton W. Wilson,III
Secretary
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