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EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
SOUTHERN MINERAL CORPORATION
Steven H. Mikel and Margie C. Ewald each certifies:
1. That Steven H. Mikel is the President and Chief Executive Officer and
Margie C. Ewald is the Secretary, respectively, of Southern Mineral
Corporation, a Nevada corporation (the "COMPANY").
2. That the Board of Directors (the "BOARD") of the Company, by unanimous
written consent dated November 17, 1997, resolved to restate the articles
of incorporation of the Company, pursuant to Section 78.403 of the Nevada
General Corporation Law (the "NGCL").
3. That a majority of the stockholders of the Company, at meeting duly called
and held on January 28, 1998, resolved to restate the articles of
incorporation of the Company, pursuant to Section 78.403 of the NGCL as
follows:
"NOW THEREFORE, BE IT RESOLVED, that the articles of
incorporation of the Company be restated to increase the number of
authorized shares of common stock, par value $.01 per share, from
20,000,000 shares to 50,000,000 shares and authorize the issuance of
up to 5,000,000 shares of 'blank check' preferred stock."
4. That as a result of the adoption of such resolutions, the articles of
incorporation of the Company, as amended to date, have been restated to
read in their entirety as follows:
ARTICLE I
NAME
The name of the Company is: Southern Mineral Corporation
ARTICLE II
DEFINITIONS
In addition to the above-defined terms, the following terms have the
meanings given for purposes of these restated articles of incorporation:
"ANNOUNCEMENT DATE" shall have the meaning set forth in Section
(b)(iii)(B)(1) of Article VII.
"ARTICLES" means these restated articles of incorporation.
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"BUSINESS COMBINATION" means: (a) any merger, reorganization or
consolidation of the Company or any of its subsidiaries with or into a Related
Person, (b) any sale, lease, exchange, transfer or other disposition of all or
substantially all of the property and assets of the Company or any of its
subsidiaries (including the issuance of any voting securities) to a Related
Person, (c) any merger or consolidation of a Related Person with or into the
Company or any of its subsidiaries, (d) any sale, lease, exchange, transfer or
other disposition of all or any substantial part of the assets of the Related
Person (including the issuance of any securities of the Related Person) to the
Company or any of its subsidiaries, or (e) any liquidation or dissolution of the
Company of any of its subsidiaries.
"BYLAWS" shall have the meaning set forth in Article III.
"CHANGE" shall have the meaning set forth in Section (a) of Article X.
"COMMON STOCK" shall have the meaning set forth in Article V.
"CONTINUING DIRECTOR" means a director (a) who was a member of the Board of
the Company immediately prior to the time that a Related Person involved in a
Business Combination (as those terms are defined in these Articles) became the
owner of more than 20% of the outstanding shares of capital stock of the Company
entitled to vote on the election of directors or (b) who was elected, appointed
or nominated as a director by a majority of the Continuing Directors.
"DETERMINATION DATE" shall have the meaning set forth in Section
(b)(iii)(B)(1) of Article VII.
"LIQUIDATION" means any voluntary or involuntary liquidation, dissolution
or winding-up of the Company.
"PERSON" means any natural person, partnership (general or limited),
corporation, group or other entity (other than the Company, any subsidiary of
the Company or a trustee holding stock for the benefit of employees of the
Company or its subsidiaries, or any one of them, pursuant to one or more
employee benefit plans or arrangement). When two or more Persons act as a
partnership (general or limited), syndicate, association or other group for the
purpose of acquiring, holding or disposing of shares of stock, such partnership
(general or limited), syndicate, association or group shall be deemed a Person.
"PREFERRED STOCK" shall have the meaning set forth in Article V.
"RELATED PERSON" means any Person which is the beneficial owner (as such
term is defined in Rule 13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934) as of the Determination Date or immediately
prior to the consummation of a Business Combination, of 20% or more of the
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capital stock of the Company entitled to vote on the election of directors, and
any "affiliate" or "associate" (as such terms are defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934) of any
such Person.
"STOCKHOLDER MEETING" shall have the meaning set forth in Section (a) of
Article IX.
"VOTING STOCK" means (a) Common Stock and (b) Preferred Stock granted
voting rights pursuant to Article V, paragraph (b)(ii).
ARTICLE III
RESIDENT OFFICE
The resident office of the Company is located at One East First Street,
Reno, Nevada 89501 and the name of the initial registered agent at such address
is The Corporation Trust Company of Nevada. The Company may maintain an office
or offices in such towns, cities and places within or outside of the State of
Nevada as the Board may from time to time determine or as may be designated by
the By-Laws of the Company (the "BYLAWS").
ARTICLE IV
PURPOSE
The nature of the business, or object, or purposes, proposed to be
transacted, promoted or carried on by the Company are as follows: To engage in
any lawful activity.
The enumeration of the foregoing powers shall not in anyway be deemed to be
a limitation upon the powers of the Company, but shall be in furtherance of and
in addition to the powers which it is authorized to exercise under "An Act to
Provide a General Corporation Law," approved March 21, 1925, and acts amendatory
and supplemental thereto.
ARTICLE V
CAPITALIZATION
The total number of shares of all classes of stock that the Company shall
have authority to issue is 55,000,000 shares, consisting of 50,000,000 shares of
Common Stock, par value $.01 per share (the "Common Stock"), and 5,000,000
shares of Preferred Stock, par value $.01 per share (the "Preferred Stock").
(a) TERMS OF COMMON STOCK.
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(i) GENERAL. Except as otherwise required by law or as otherwise
provided in these Articles, each share of Common Stock shall have identical
powers, preferences, qualifications, limitations and other rights.
(ii) VOTING RIGHTS. Except as otherwise required by law or as
otherwise provided in these Articles each share of Common Stock shall be
entitled to one vote per share.
(iii) DIVIDENDS. Subject to the rights of any outstanding class or
series of capital stock ranking senior to Common Stock as to dividends,
dividends may be paid upon Common Stock in cash, property or securities as
and when declared by the Board out of funds legally available therefor. As
and when dividends are so declared and paid, the holders of Common Stock
shall be entitled to participate in such dividends ratably on a per share
basis.
(iv) LIQUIDATION. Upon any Liquidation, the holders of Common Stock
are entitled to share ratably in the net assets, if any, remaining after
payment in full of all debts and liabilities of the Company and after the
holders of any outstanding class or series of capital stock ranking senior
to Common Stock shall have been paid in full the amounts to which such
holders shall be entitled, or an amount sufficient to pay the aggregate
amount to which such holders are entitled shall have been set aside for the
benefit of the holders of such senior stock.
(v) NO PREEMPTIVE RIGHTS. The Board may from time to time issue any
class or series of authorized stock of the Company, or any notes,
debentures, bonds, or other securities convertible into or carrying options
or warrants to purchase authorized stock of any class or series without
offering any such stock, either in whole or in part, to the existing
stockholders. No stockholder of the Company shall because of his holding
shares have any preemptive or preferential rights to purchase or subscribe
to stock of any class or series of the Company now or hereafter to be
authorized, or any notes, debentures, bonds, or other securities
convertible into or carrying options or warrants to purchase stock of any
class or series now or hereafter to be authorized, whether or not the
issuance of any such stock, or such notes, debentures, bonds or other
securities, would adversely affect the dividend or voting rights of such
stockholder; provided, however, all such newly authorized shares of stock
of any class or series, or notes, debentures, bonds or other securities
convertible into, or carrying options or warrants to purchase, stock of any
class or series, may be issued and disposed of or sold by the Board on such
terms and for such consideration, so far as may be permitted by law, and to
such person or persons as the Board may determine in its discretion from
time to time.
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(b) PREFERRED STOCK. The Preferred Stock may be issued from time to time in
one or more series, each of such series to have such voting powers, designation,
preferences, and relative participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, as are stated and
expressed herein or in a resolution or resolutions providing for the issuance of
such series, adopted by the Board as hereinafter provided. The Board is hereby
expressly empowered, subject to this Article V, to provide for the issuance of
the Preferred Stock from time to time in series and to fix by resolution or
resolutions providing for the issuance of such series:
(vi) NUMBER. The number of shares to constitute such series and the
designation thereof.
(vii) VOTING RIGHTS. The voting rights, full or limited, if any, to
which holders of shares of any series of Preferred Stock may be entitled.
(viii) DIVIDENDS. The dividend rate of the shares of such series, and
whether such dividends shall be cumulative.
(ix) REDEMPTION PROVISIONS. Whether the shares of such series shall be
redeemable and, if redeemable, the redemption price and the terms and
conditions thereof.
(x) LIQUIDATION PREFERENCE. The amount, if any, which the shares of
any such series shall be entitled to receive, before any distribution or
payment shall be made to holders of the Common Stock, upon a Liquidation,
or of any proceedings resulting in any distribution of all, or
substantially all, of its assets to its stockholders; provided, however,
the sale of all, or substantially all, of the property and assets of the
Company to, or the merger or consolidation of the Company into or with, any
other corporation shall not be deemed to be a Liquidation within the
meaning of this Section (b)(v) of Article V.
(xi) SINKING FUNDS. Whether the shares of such series shall be subject
to the operation of retirement or sinking funds to be applied to the
purchase or redemption of such shares and, if such funds are established,
the annual amount thereof, and the terms and provisions relative to the
operation thereof.
(xii) CONVERSION RIGHTS. Whether the shares of such series shall be
convertible into, or exchangeable for, shares of any other class or classes
of any other series of the same or any other class of stock of the Company
and, if convertible, the conversion price or prices or rate or rates of
conversion or exchange and the terms of adjustments, if any, upon such
conditions as shall be stated in said resolution or resolutions.
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(xiii) OTHER RIGHTS. Such other designations, preferences and relative
participating, optional or other special rights and qualifications,
limitations or restrictions thereof as it may deem advisable and shall be
stated in said resolution or resolutions.
ARTICLE VI
ELECTION OF DIRECTORS
(a) The business and affairs of the Company shall be conducted and managed
by, or under the direction of, the Board. Except as otherwise provided for or
fixed pursuant to Article V relating to the rights of the holders of any series
of Preferred Stock to elect additional directors, the total number of directors
constituting the entire Board shall be fixed from time to time by or pursuant to
a resolution passed by the Board.
(b) The number of directors which shall constitute the whole Board shall be
as specified pursuant to the Bylaws and may be altered from time to time as may
be provided therein. Each director shall serve for a term expiring at the third
annual meeting following the annual meeting at which such director was elected.
The foregoing notwithstanding, except as otherwise provided in these Articles or
any resolution or resolutions of the Board designating a series of Preferred
Stock, directors who are elected at an annual meeting of stockholders, and
directors elected in the interim to fill vacancies and newly created
directorships, shall hold office for the term for which elected and until their
successors are elected and qualified or until their earlier death, resignation
or removal. Whenever the holders of any class or classes of stock or any series
thereof shall be entitled to elect one or more directors pursuant to these
Articles or any resolution or resolutions of the board designating a series of
Preferred Stock, and, except as otherwise provided herein or therein, vacancies
and newly created directorships of such class or classes or series thereof may
be filled by a majority of the directors elected by such class or classes or
series thereof then in office, by a sole remaining director so elected or by the
unanimous written consent or the affirmative vote of a majority of the
outstanding shares of such class or classes or series entitled to elect such
director or directors.
(c) Except as otherwise provided for or fixed pursuant to Article V
relating to the rights of the holders of any series of Preferred Stock to elect
additional directors, and subject to the provisions hereof, newly created
directorships resulting from any increase in the authorized number of directors,
and any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause, may be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
newly created directorship or for the directorship in which the vacancy
occurred, and until such director's successor shall have been duly elected and
qualified, subject to such director's
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earlier death, disqualification, resignation or removal. Subject to the
provisions of these Articles, no decrease in the number of directors
constituting the Board shall shorten the term of any incumbent director.
(d) During any period when the holders of any series of Preferred Stock
have the right to elect additional directors as provided for or fixed pursuant
to Article V, then upon commencement and for the duration of the period during
which such right continues (i) the then otherwise total authorized number of
directors of the Company shall automatically be increased by such specified
number of directors, and the holders of such Preferred Stock shall be entitled
to elect the additional directors so provided for or fixed pursuant to said
provisions, and (ii) each such additional director shall serve until such
director's successor shall have been duly elected and qualified, or until such
director's right to hold such office terminates pursuant to said provisions,
whichever occurs earlier, subject to his earlier death, disqualification,
resignation or removal. Except as otherwise provided by the Board in the
resolution or resolutions establishing such series, whenever the holders of any
series of Preferred Stock having such right to elect additional directors are
divested of such right pursuant to the provisions of such stock, the terms of
office of all such additional directors elected by the holders of such stock, or
elected to fill any vacancies resulting from death, resignation,
disqualification or removal of such additional directors, shall forthwith
terminate and the total and authorized number of directors of the Company shall
be reduced accordingly. Notwithstanding the foregoing, whenever, pursuant to
Article V, the holders of any one or more series of Preferred Stock shall have
the right, voting separately as a series or together with holders of other such
series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of these Articles and the
Certificate of Designations applicable thereto, and such directors so elected
shall not be divided into classes pursuant to this Section 6(d) of Article VI,
unless expressly provided by such terms.
(e) Except for such additional directors, if any, as are elected by the
holders of any series of Preferred Stock as provided for or fixed pursuant to
Article V, any director may be removed from office only by the affirmative vote
of the holders of 66 2/3% or more of the combined voting power of the
then-outstanding shares of Voting Stock at a meeting of stockholders called for
that purpose, voting together as a single class.
ARTICLE VII
RESTRICTIONS ON BUSINESS COMBINATIONS
(a) Except as set forth in Section 7(b) of this Article VII, any Business
Combination shall require the affirmative vote of the holders of shares
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representing at least 66 2/3% of the outstanding shares of capital stock of the
Company entitled to vote on the election of directors.
(b) The provisions of Section 7(a) of this Article VII shall not apply
to any Business Combination if:
(i) the Business Combination is approved by majority of the Continuing
Directors;
(ii) the Business Combination is with another corporation, a majority
of the outstanding shares of stock of which is owned of record or
beneficially, directly or indirectly, by the Company or its subsidiaries
and none of which is owned by a Related Person; or
(iii) the form of consideration and minimum price requirements
described below are satisfied:
(A) in a Business Combination, the cash or consideration to be
paid to the Company's stockholders is either cash or the same type of
consideration used by the Related Person in acquiring the largest
portion of its shares of the Company's voting capital stock prior to
the first public announcement of the proposed Business Combination;
and
(B) the fair market value per share of such payments to the
Company's stockholders in a Business Combination is at least equal in
value to the higher of (1) the highest per share price (including
brokerage commissions, soliciting dealers' fees, dealer-manager
compensation and other expenses, and as appropriately adjusted to take
account of stock splits, reverse stock splits, stock dividends and
similar transactions) paid or agreed to be paid by the Related Person
to acquire any shares of the Company's voting capital stock during the
two years prior to the first public announcement of the proposed
Business Combination (the "ANNOUNCEMENT DATE") or in the transaction
in which the Related Person first became a Related Person (the date of
such transaction herein referred to as the "DETERMINATION DATE"),
whichever is higher, or (2) the fair market value per share of the
Common Stock on the Announcement Date or on the Determination Date,
whichever is higher.
ARTICLE VIII
NO WRITTEN CONSENTS OF STOCKHOLDERS
Except as otherwise provided for or fixed pursuant to Article IV relating
to the rights of the holders of any series of Preferred Stock, no action that is
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required or permitted to be taken by the stockholders at any annual or special
meeting of stockholders may be effected by written consent of stockholders in
lieu of a meeting of stockholders, unless the action to be effected by written
consent of stockholders and the taking of such action by such written consent
have expressly been approved in advance by the Board.
ARTICLE IX
STOCKHOLDER MEETINGS
(a) Meetings of stockholders of the Company ("STOCKHOLDER MEETINGS") may be
held within or without the State of Nevada, as the Bylaws may provide. Except as
otherwise provided for or fixed pursuant to Article V relating to the rights of
the holders of any series of Preferred Stock, special Stockholder Meetings may
be called only by (i) the Chairman of the Board or (ii) the Board pursuant to a
resolution adopted by a majority of the seated Continuing Directors of the
Company. Special Stockholder Meetings may not be called by any other Person or
Person or in any other manner. Elections of directors need not be by written
ballot unless the Bylaws shall so provide.
(b) In addition to the powers conferred on the Board by these Articles and
by the NGCL, and without limiting the generality thereof, the Board is
specifically authorized from time to time, by resolution of the Board without
additional authorization by the stockholders of the Company, to adopt, amend or
repeal the Bylaws, in such form and with such terms as the Board may determine,
including, without limiting the generality of the foregoing, Bylaws relating to
(i) regulation of the procedure for submission by stockholders of nominations of
persons to be elected to the Board, (ii) regulation of the attendance at annual
or special Stockholder Meetings by Persons other than holders of record or their
proxies, and (iii) regulation of the business that may properly be brought by a
stockholder of the Company before an annual or special meeting of stockholders
of the Company.
ARTICLE X
AMENDMENT OF CORPORATE DOCUMENTS
(a) ARTICLES. Whenever any vote of the holders of Voting Stock is required
by law to amend, alter, repeal or rescind any provision of these Articles, then
in addition to any affirmative vote required by applicable law and in addition
to any vote of the holders of any series of Preferred Stock provided for or
fixed pursuant to Article V, such alteration, amendment, repeal or rescission (a
"CHANGE") of any provision of these Articles must be approved by at least a
majority of the then-combined voting power of the then-outstanding shares of
Voting Stock, voting together as a single class; provided, however, that if any
such Change relates to Articles II, VI, VII, VIII, IX, or to this Article X,
such
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Change must also be approved by the affirmative vote of the holders of at
least 66 2/3% of the combined voting power of the then-outstanding shares of
Voting Stock, voting together as a single class; provided further, however, that
the vote(s) required by the immediately preceding clause shall not be required
if such Change has been first approved by at least two-thirds of the
then-authorized number of directors. Subject to the provisions hereof, the
Company reserves the right at any time, and from time to time, to amend, alter,
repeal or rescind any provision contained in these Articles in the manner now or
hereafter prescribed by law, and other provisions authorized by the laws of the
State of Nevada at the time in force may be added or inserted, 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 to these Articles in its present form or as hereafter
amended are granted subject to the rights reserved in this article.
(b) BYLAWS. In addition to any affirmative vote required by law, any Change
of the Bylaws may be adopted either (i) by the Board by the affirmative vote of
at least a majority of the then-authorized number of directors, or (ii) by the
stockholders by the affirmative vote of the holders of at least 66 2/3% of the
combined voting power of the then-outstanding shares of Voting Stock, voting
together as a single class.
ARTICLE XI
COMBINATIONS WITH INTERESTED STOCKHOLDERS
The corporation elects to be governed by Sections 78.411 to 78.444,
inclusive, of the NGCL.
ARTICLE XII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
No director or officer shall be personally liable to the Company or
stockholder for damages for breach of fiduciary duty as a director or officer,
except that this Article XII shall not eliminate or limit the liability of a
director or officer for (i) acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law or (ii) the payment of dividends
in violation of Section 78.300 of the NCGL. If the NGCL is hereafter amended or
interpreted to eliminate or limit further the personal liability of directors or
officers, then the liability of all directors and officers shall be eliminated
or limited to the full extent then so permitted. Neither the amendment nor
repeal of this Article XII, nor the adoption of any provision of these Articles
inconsistent with this Article XII, shall eliminate or reduce the effect of
Article XII in respect of any act or omission that occurred prior to such
amendment, repeal or adoption of an inconsistent provision.
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ARTICLE XIII
CONFLICT OF INTEREST
No contract or other transaction between the Company and any other Person
and no other acts of the Company with relation to any other Person shall, in the
absence of fraud, in any way be invalidated or otherwise affected by the fact
that any one or more of the directors or officers of the Company are pecuniarily
or otherwise interested in, or are directors or officers of, such other Person.
Any director or officer of the Company individually, or any firm or association
of which any director or officer may be a member, may be a party to, or may be
pecuniarily or otherwise interested in, any contract or transaction of the
Company, provided, however, the fact that he individually or as a member of such
firm or association is such a party or is so interested shall be disclosed or
shall have been known to the board of directors or a majority of such members
thereof as shall be present at any meeting of the board of directors at which
action upon any such contract or transaction shall be taken; and any director of
the Company who is also a director or officer of such other Person or who is
such a party or so interested may be counted in determining the existence of a
quorum at any meeting of the board of directors which shall authorize any such
contract or transaction and may vote thereat to authorize any such contract or
transaction, with like force and effect as if he wore not such a director or
officer of such other Person or not so interested. Any director of the Company
may vote upon any contract or any other transaction between the Company and any
subsidiary or affiliated Person without regard to the fact that he is also a
director or officer of such subsidiary or affiliated Person.
Any contract, transaction, act of the Company or of the directors, which
shall be ratified at any annual meeting of the stockholders of the Company, or
at any special meeting of the stockholders of the Company, or at any special
meeting called for such purpose, shall, insofar as permitted by law, be as valid
and as binding as though ratified by every stockholder of the Company; provided,
however, any failure of the stockholders to approve or ratify any such contract,
transaction or act, when and if submitted shall not be deemed in any way to
invalidate the terms or deprive the Company, its directors, officers or
employees, of its or their right to proceed with such contract, transaction or
act.
Subject to any express agreement which may from time to time be in effect,
any stockholder, director or officer of the Company may carry on and conduct in
his own right and for his own personal account, or as a partner in any
partnership, or as a joint venturer in any joint venture, or as an officer,
director or stockholder of any Person, or as a participant in any syndicate,
pool, trust or association, any business which competes with the business of the
Company and shall be free in all such capacities to make investments in any kind
of property in which the Company may make investments.
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ARTICLE XIV
TERM
This corporation is to have a perpetual existence.
ARTICLE XV
NO ASSESSMENTS
The capital stock of the Company after the amount of the subscription
price, or par value, has been paid in, shall not be subject to assessment to pay
debts of the Company, and no paid up stock, and no stock issued as fully paid,
shall ever be assessable or assessed.
Each of the undersigned does hereby make and file these Restated Articles
of Incorporation this 29th day of January 1998.
/S/ STEVEN H. MIKEL
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STEVEN H. MIKEL
President and Chief Executive Officer
/S/ MARGIE C. EWALD
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MARGIE C. EWALD
Secretary
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