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EXHIBIT 3.1
FILED MAY 26 1995
IN THE OFFICE OF
SECRETARY OF STATE
WEST VIRGINIA
ARTICLES OF
INCORPORATION
OF
ENERGY CORPORATION OF
AMERICA
The undersigned, acting as incorporator of a corporation under Section
27, Article I, Chapter 31 of the Code of West Virginia adopts the following
Articles of Incorporation for such corporation, FILED IN DUPLICATE:
I. The undersigned agrees to become a corporation by the name of
Energy Corporation of America (the "Corporation").
II. The address of the principal office of the Corporation will be
501 56th Street, Charleston, West Virginia 25304.
III. The purposes for which the Corporation is formed are as
follows:
All lawful purposes, including:
To purchase, to receive by way of gift, subscribe for, invest
in, and in all other ways acquire, import, lease, possess, maintain, handle on
consignment, own, hold for investment or otherwise use, enjoy, exercise,
operate, manage, conduct, perform, make, borrow, guarantee, contract in respect
of, trade and deal in, sell, exchange, let, lend, export, mortgage, pledge,
deed in-trust, hypothecate, encumber, transfer, assign and in all other ways
dispose of, design, develop, invent, improve, equip, repair, alter, fabricate,
assemble, build, construct, operate, manufacture, plant, cultivate, produce,
market, and in all other ways (whether like or unlike any of the foregoing),
deal in and with property of every kind and character, real, personal or mixed,
tangible or
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intangible, wherever situated and however held, including, but not limited to,
money, credits, chases in action, securities, stocks, bonds, warrants, script,
certificates, debenture mortgages, notes, commercial paper and other
obligations and evidences of interest in or indebtedness of any person' firm or
corporation, foreign or domestic, or of any government or subdivision or agency
thereof, documents of title, and accompanying rights, and every other kind and
character of personal property, real property (improved or unimproved), and the
products and avails thereof, and every character of interest therein and
appurtenance thereto, including, but not limited to, mineral, oil, gas, water
and timber rights, all or any part of any going business and its incidents,
franchises, subsidies, charters, concessions, grants, rights, powers or
privileges, granted or conferred by any government or subdivision or agency
thereof, and any interest in or part of any of the foregoing, and to exercise
in respect thereof all of the rights' powers, privileges, and immunities of
individual owners or holders thereof.
To incur debts, and to raise, borrow and secure the payment
of money in any lawful manner, including the issue or sale or other
distribution of bonds, warrants, debentures, obligations, negotiable and
transferable instruments, and evidences of indebtedness of all kinds, whether
secured by mortgage, pledge, deed of trust or otherwise and without limit as to
amount.
To enter into, make, perform and carry out contracts of every
sort and kind with any person, firm, association,
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corporation, public, private or municipal, or body politic.
To hire and employ agents' servants and employees' and to
enter into agreements of employment and collective bargaining agreements, and
to act as agents contractor, trustee, factor or otherwise, either alone or in
company with others.
To promote or aid in any manner, financially or otherwise,
any person, firm, association or corporation, and to guarantee contracts and
other obligations.
To let concessions to others to do any of the things that the
Corporation is empowered to do, and to enter into, make, perform and carry out,
contracts and arrangements of every kind and character with any person, firm,
association or corporation, or any government or authority or subdivision or
agency thereof.
For the purpose of attaining or furthering any of its objects,
to do any and all other acts and things, and to exercise any and all other
powers which a copartnership or a natural person could do and exercise, and
which now or hereafter may be authorized by law.
To carry on any business whatsoever that the Corporation may
deem proper or convenient in connection with any of the foregoing purposes or
otherwise, or that it may deem calculated, directly or indirectly, to improve
the interests of the Corporation, and to do all things specified in Chapter 31
of the West Virginia Code, as amended, and to have and to exercise all powers
conferred by the laws of the State of West Virginia on corporations formed
under the laws pursuant to which and under
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which the Corporation is formed' as such laws are now in effect or may at any
time hereafter be amended, and to do any and all things hereinabove set forth
to the same extent and as fully as natural persons might or could do, either
alone or in connection with other persons, firms, associations or corporations,
and in any part of the world.
The foregoing statement of purposes shall be construed as a
statement of both purposes and powers, shall be liberally construed in aid of
the powers of the Corporation, and the powers and purposes stated in each
clause shall, except where otherwise stated, be in no way limited or restricted
by any term or provision of any other clause, and shall be regarded not only as
independent purposes, but the purposes and powers stated shall be construed
distributively as each object expressed, and the enumeration as to specific
powers shall not be construed as to limit in any manner the aforesaid general
powers, but are in furtherance of, and in addition to, and not in limitation of
said general powers.
IV. Provisions granting preemptive rights are:
Preemptive rights are not granted by these Articles of
Incorporation.
V. Provisions for the regulation of the internal affairs of the
Corporation are:
Regulation of the internal affairs of the Corporation are not
provided for by these Articles of Incorporation, but bylaws may later be
adopted for the Corporation.
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VI. The amount of the total authorized capital stack of the
Corporation shall be Two Million Dollars ($2,000,000.00) which shall be divided
into two million (200,000,000) shares of the par value of One Dollar ($1.00)
each.
VII. The full name and address of the incorporator is:
Tammy J. Owen
Goodwin & Goodwin
P.O. Box 2107
CHARLESTON, WV 25328
VIII. The existence of the Corporation is to be Perpetual.
IX. The name and address of the appointed person to whom notice of
process may be sent:
Donald C. Supcoe
Energy Corporation of America
501 56th Street
Charleston, WV 25304
X. The number of directors constituting the initial board of
directors of the Corporation is three, and the names and addresses of the
persons who are to serve as directors until the first annual meeting of
shareholders or until their successors are elected and shall qualify are.
John Mork
4643 S. Ulster
Suite 1100
Denver, CO 80237
Kenneth Brill
4643 S. Ulster
Suite 1100
Denver, CO 80237
F. H. McCullough, III
510 C Street
South Charleston, WV 25303
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XI. Liability, Indemnification and Insurance.
A. A director of the Corporation shall not be personally
liable to the Corporation or its shareholders for monetary damages for breach
of fiduciary duty as a director, except for liability (it for any breach of the
director's duty of loyalty to the Corporation or its shareholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation, (iii) under SECTION 9 OF THE WEST Virginia Corporation Act
or (iv) for any transaction from which the director derived an improper
personal benefit.
B. Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she is the
legal representative, is or was a director or officer of the Corporation or in
or Can nerving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such preceding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
West Virginia Corporation Act, as the same
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exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his Or her heirs, executors and administrators;
provided, however, that except as provided in paragraph (B) hereof, the
Corporation shall indemnify any such person seeking indemnification in
Connection with a proceeding (or part thereof) initiated by such person only if
such proceeding for part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the West Virginia corporation Act
required the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including
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without limitations service to an employee benefit plan) in advance of the
final disposition of a proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
C. If a claim under paragraph (1) of this Section is not paid
in full by the Corporation within thirty (30) days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against he Corporation to recover the unpaid amount of the claim and, if
successful in whole or in pert r the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred In
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the West Virginia Corporation Act for the Corporation to indemnify the Claimant
for the amount claimed, but
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the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the West Virginia Corporation Act, nor an actual determination by
the Corporation {including its Board of Directors, independent legal counsel or
its shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
D. The right to indemnification and the payment of expenses
incurred in defending a proceeding In advance of its final disposition
conferred in this Section shall nor be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Articles of Incorporation, By-Law, agreement, vote of shareholders or
disinterested directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer' employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense' liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability
or
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loss under the West Virginia Corporation Act
I, the undersigned, for the purpose of forming a corporation under the
laws of the State of West Virginia, do make and file these Articles of
Incorporation, and have accordingly hereunto set my hand this 25th day of May,
1995.
/s/ TAMMY J. OWEN
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TAMMY J. OWEN
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA, TO-WIT:
I, /s/SUSAN B. ALDER, a Notary Public in and for the State and County
aforesaid, do hereby certify that Tammy J. Owen, whose name is signed to the
writing above, has this day acknowledged the same before me.
Given under my hand this 25th day of May, 1995.
My commission expires MAY 3, 2005.
/s/SUSAN B. ALDER
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Notary public.
<SEAL> OFFICIAL SEAL
NOTARY PUBLIC
STATE OF WEST VIRGINIA
SUSAN B. ALDER
GOODWIN & GOODWIN
1500 ONE VALLEY SQUARE
CHARLESTON, WV 25301
My Commission Expires May 3, 2005
These Articles of Incorporation Prepared by:
Tammy J. Owen
GOODWIN & GOODWIN
P. O. Box 2107
Charleston, WV 25328
This Instrument was presented to the Clerk of the County Commission of
Kanawha County, West Virginia, on May 26 1995 and the same is admitted to
record.
Teste:/s/ALMA G. KING Clerk
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Kanawha county Commission
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