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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
VISION ENERGY, INC.
I, the undersigned, for the purposes of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware ("DGCL"),
do execute this Certificate of Incorporation and do hereby certify as follows:
ARTICLE I
NAME
The name of the corporation (the "Corporation") is Vision Energy, Inc.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801. The name of the Corporation's registered agent at such address
is The Corporation Trust Company.
ARTICLE III
CORPORATE PURPOSES
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 100,000,000 shares, divided into
80,000,000 of common stock having a par value of $0.01 per share and 20,000,000
of preferred stock having a par value of $0.01 per share.
The Board of Directors is authorized, subject to limitations prescribed
by DGCL and the provisions of this Article IV, to provide for the issuance of
the shares of preferred stock in one or
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more series, and by filing a certificate pursuant to DGCL, to establish from
time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences and rights of the shares of each such
series and the qualifications, limitations or restrictions thereof, and to
increase or decrease the number of shares of any such series (but not below the
number of shares of such series then outstanding). The number of authorized
shares of preferred stock may also be increased or decreased (but not below the
number of shares of such series then outstanding) by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to vote, unless a
vote of any other holders is required pursuant to a certificate or certificates
establishing a series of preferred stock.
Except as otherwise expressly provided in a certificate designating any
series of preferred stock pursuant to the foregoing provisions of this Article
IV, any new series of preferred stock may be designated, fixed and determined as
provided herein by the Board of Directors without approval of the holders of
common stock or the holders of preferred stock, or any series thereof, and any
such new series may have powers, preferences and rights, including, without
limitation, voting rights, dividend rights, liquidation rights, redemption
rights and conversion rights, senior to, junior to or pari passu with the rights
of the common stock, the preferred stock, or any future class or series of
preferred stock or common stock.
ARTICLE V
DIRECTORS
The number of directors of the Corporation shall be determined in the
manner provided by the By-Laws and may be increased or decreased from time to
time in the manner provided therein. Election of directors need not be by
written ballots unless the By-Laws of the Corporation shall so require.
ARTICLE VI
CORPORATE EXISTENCE
The Corporation shall have perpetual existence.
ARTICLE VII
BY-LAWS AMENDMENTS
In furtherance and not in limitation of the powers conferred by DGCL,
the Board of Directors is expressly authorized to adopt, alter, amend or repeal
the By-Laws of the Corporation or to adopt new By-Laws.
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ARTICLE VIII
PREEMPTIVE RIGHTS
Preemptive rights shall not exist with respect to shares of stock or
securities convertible into shares of stock of the Corporation.
ARTICLE IX
CUMULATIVE VOTING
The right to cumulate votes in the election of directors shall not
exist with respect to shares of the Corporation.
ARTICLE X
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
A. Any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent
(including trustee) of another corporation, partnership, joint venture, trust or
other enterprise, shall be indemnified by the Corporation (funds paid or
required to be paid to any person as a result of the provisions of this Article
shall be returned to the Corporation or reduced, as the case may be, to the
extent that such person receives funds pursuant to an indemnification from any
such other corporation or organization) against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Any such person who could be indemnified pursuant to the preceding
sentence except for the fact that the subject action or suit is or was by or in
the right of the Corporation shall be indemnified by the Corporation against
expenses (including attorneys' fees) actually or reasonably incurred by him in
connection with the defense or settlement of such action or suit, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
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B. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraph A of this Article X, or in
defense of any claim, issue or matter therein, he shall be indemnified by the
Corporation against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith without the necessity of any action
being taken by the Corporation other than the determination, in good faith, that
such defense has been successful. In all other cases wherein such
indemnification is provided by this Article, unless ordered by a court,
indemnification shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, or agent is proper in the circumstances because he has met the
applicable standard of conduct specified in this Article. Such determination
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (2) if such quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the holders of a majority of the shares of capital stock of
the Corporation entitled to vote thereon.
C. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful. Entry of a judgment by consent as part of
a settlement shall not be deemed a final adjudication of liability for
negligence or misconduct in the performance of duty, nor of any other issue or
matter.
D. Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by the director, officer, employee
or agent involved to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation.
E. The indemnification hereby provided shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any By-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
F. By action of the Board of Directors, notwithstanding any interest of
the directors in the action, the Corporation may purchase and maintain
insurance, in such amounts as the Board of Directors deems appropriate, on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent (including trustee) of another corporation,
partnership, joint venture, trust or other
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enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation shall have the power to indemnify him against such liability under
the provisions of this Article.
ARTICLE XI
LIMITED DIRECTOR LIABILITY
To the fullest extent that DGCL, as it exists on the date hereof or may
hereafter be amended, permits the limitation or elimination of the liability of
directors, a director of the Corporation shall not be personally liable to the
Corporation or to its stockholders for monetary damages for breach of fiduciary
duty as a director. Any amendment, modification or repeal of this Article IX
shall not eliminate, reduce or otherwise adversely affect any limitation of
personal liability of a director of the Corporation with respect to any acts or
omissions of the director occurring prior to such amendment, modification or
repeal.
ARTICLE XII
INITIAL DIRECTORS
The names and mailing addresses of the initial directors are:
Name Mailing Address
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Horace A. Calvert 50 Briar Hollow Lane
7th Floor, West Building
Houston, TX 77027
Marshall L. Munsell 50 Briar Hollow Lane
7th Floor, West Building
Houston, TX 77027
Thomas A. Mazza 50 Briar Hollow Lane
7th Floor, West Building
Houston, TX 77027
ARTICLE XIII
AMENDMENTS TO CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time, and from time to time,
to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and other provisions authorized by DGCL at the time in force may
be added or inserted, in the manner now or hereafter prescribed
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by DGCL; and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in this Article
XIII.
ARTICLE XIV
INCORPORATOR
The powers of the incorporator will terminate upon the filing of this
Certificate. The name and mailing address of the incorporator is as follows:
Name Mailing Address
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James C. Webster Gardere Wynne Sewell & Riggs, L.L.P.
1000 Louisiana, Suite 3400
Houston, Texas 77002
The undersigned incorporator hereby acknowledges that the foregoing
certificate of incorporation is his act and deed on this 8th day of November,
1999.
/s/ JAMES C. WEBSTER
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JAMES C. WEBSTER
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