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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
CHESAPEAKE ENERGY CORPORATION
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA:
Chesapeake Energy Corporation (the "Corporation"), a
corporation organized and existing under and by virtue of the Oklahoma General
Corporation Act (the "Act"), for the purpose of restating its certificate of
incorporation, does hereby submit the following:
A. The name of the Corporation is Chesapeake Energy Corporation. The name
under which the Corporation was originally incorporated was Chesapeake
Oklahoma Corporation.
B. The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of Oklahoma on November 19, 1996 (as
amended from time to time, the "Certificate of Incorporation").
C. This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Section 1080 of the Act after being
adopted by the directors and only restates and integrates, but does not
further amend, the provisions of the Certificate of Incorporation as
amended and supplemented as of this date, there being no discrepancy
between those provisions and the provisions hereof.
D. The Certificate of Designations of Series A Junior Participating
Preferred Stock of the Corporation, filed with the Secretary of State
of Oklahoma on July 17, 1998, and attached hereto as Exhibit "A," will
remain in full force and effect.
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E. The Certificate of Incorporation is hereby restated to read in its
entirety as follows:
ARTICLE I
Name
The name of the Corporation is:
CHESAPEAKE ENERGY CORPORATION
ARTICLE II
Registered Office and Agent
The address of the Corporation's registered office in the State of
Oklahoma is 735 First National Building, 120 North Robinson, Oklahoma City,
Oklahoma 73102. The Corporation's registered agent at such address is The
Corporation Company.
ARTICLE III
Purposes
The nature of the business and the purpose of the Corporation shall be
to engage in any lawful act or activity and to pursue any lawful purpose for
which a corporation may be formed under the Oklahoma General Corporation Act
(the "Act"). The Corporation is authorized to exercise and enjoy all powers,
rights and privileges which corporations organized under the Act may have as in
force from time to time, including, without limitation, all powers, rights and
privileges necessary or convenient to carry out the purposes of the Corporation.
ARTICLE IV
Capital Stock
The total number of shares of capital stock which the Corporation shall
have authority to issue is Three Hundred Sixty Million (360,000,000) shares,
consisting of Ten Million (10,000,000) shares of Preferred Stock, par value
$0.01 per share, and Three Hundred Fifty Million (350,000,000) shares of Common
Stock, par value $0.01 per share. The preferences, qualifications, limitations,
restrictions and the special or relative rights in respect of the shares of each
class are as follows:
Section 1. Preferred Stock. The Preferred Stock may be issued from time
to time in one or more series. All shares of Preferred Stock shall be of equal
rank and shall be identical, except in
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respect of the matters that may be fixed and determined by the Board of
Directors as hereinafter provided, and each share of each series shall be
identical with all other shares of such series, except as to the date from which
dividends are cumulative. The Board of Directors hereby is authorized to cause
such shares to be issued in one or more series and with respect to each such
series prior to the issuance thereof to fix and determine the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
A. The number of shares constituting a series, the distinctive
designation of a series and the stated value of the series, if
different from the par value;
B. Whether the shares of a series are entitled to any fixed or
determinable dividends, the dividend rate (if any) on the shares,
whether the dividends are cumulative and the relative rights of
priority of dividends on shares of that series;
C. Whether a series has voting rights in addition to the
voting rights provided by law and the terms and conditions of such
voting rights;
D. Whether a series will have or receive conversion or
exchange privileges and the terms and conditions of such conversion or
exchange privileges;
E. Whether or not the shares of a series are redeemable and
the terms and conditions of such redemption, including, without
limitation, the manner of selecting shares for redemption if less than
all shares are to be redeemed, the date or dates on or after which the
shares in the series will be redeemable and the amount payable in case
of redemption;
F. Whether a series will have a sinking fund for the
redemption or purchase of the shares in the series and the terms and
the amount of such sinking fund;
G. The right of a series to the benefit of conditions and
restrictions on the creation of indebtedness of the Corporation or any
subsidiary, on the issuance of any additional capital stock (including
additional shares of such series or any other series), on the payment
of dividends or the making of other distributions on any outstanding
stock of the Corporation and the purchase, redemption or other
acquisition by the Corporation, or any subsidiary, of any outstanding
stock of the Corporation;
H. The rights of a series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation
and the relative rights of priority of payment of a series; and
I. Any other relative, participating, optional or other
special rights, qualifications, limitations or restrictions of such
series.
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Dividends on outstanding shares of Preferred Stock shall be paid or set
apart for payment before any dividends shall be paid or declared or set apart
for payment on the common shares with respect to the same dividend period.
If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series in accordance
with the respective preferential amounts (including unpaid cumulative dividends,
if any) payable with respect thereto.
Section 2. Common Stock. The Common Stock shall be subject to the
express terms of the Preferred Stock and any series thereof. Each share of
Common Stock shall be equal to every other share of Common Stock. The holders of
shares of Common Stock shall be entitled to one vote for each share of such
stock upon all matters presented to the shareholders. Shares of Common Stock
authorized hereby shall not be subject to preemptive rights. The holders of
shares of Common Stock now or hereafter outstanding shall have no preemptive
right to purchase or have offered to them for purchase any of such authorized
but unissued shares. The holders of shares of Common Stock now or hereafter
outstanding shall have no preemptive right to purchase or have offered to them
for purchase any shares of Preferred Stock, Common Stock or other equity
securities issued or to be issued by the Corporation.
Subject to the preferential and other dividend rights applicable to the
Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive such dividends (payable in cash, stock or otherwise) as may be declared
on the Common Stock by the Board of Directors at any time or from time to time
out of any funds legally available therefor.
In the event of any voluntary or involuntary liquidation, distribution
or winding up of the Corporation, after distribution in full of the preferential
and/or other amounts to be distributed to the holders of shares of Preferred
Stock, the holders of shares of Common Stock shall be entitled to receive all of
the remaining assets of the Corporation available for distribution to its
shareholders, ratably in proportion to the number of shares of Common Stock held
by them.
ARTICLE V
Limitation of Director Liability
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for damages for breach of fiduciary duty as a
director, except for personal liability for: (i) acts or omissions by such
director not in good faith or which involve intentional misconduct or a knowing
violation of law; (ii) the payment of dividends or the redemption or purchase of
stock in violation of Section 1053 of the Act; (iii) any breach of such
director's duty of loyalty to the Corporation or its shareholders; or (iv) any
transaction from which such director derived an improper personal benefit.
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ARTICLE VI
Certain Stock Purchases
Section 1. Certain Definitions. For the purposes of this Article VI:
"Continuing Director" means any member of the Board of Directors of the
Corporation (the "Board") who is unaffiliated with the Interested Shareholder
and was a member of the Board prior to the time that the Interested Shareholder
became an Interested Shareholder, and any successor of a Continuing Director who
is unaffiliated with the Interested Shareholder and is recommended to succeed a
Continuing Director by a majority of Continuing Directors then on the Board.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means in the case of stock, the highest closing
sale price during the 30-day period ending on the date in question of a share of
such stock on a principal United States securities exchange registered under the
Exchange Act on which such stock is listed or in the national market system
maintained by the National Association of Securities Dealers, Inc., or, if the
stock is not listed on any such exchange or designated as a national market
system security, the highest closing bid quotation with respect to a share of
such stock during the 30-day period ending on the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations system or
any system then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined by the
Board in good faith.
"Interested Shareholder" shall have the meaning ascribed to such term
under Section 1090.3 of the Act.
Section 2. Vote Required for Certain Stock Purchases.
A. Any direct or indirect purchase by the Corporation, or any
subsidiary of the Corporation, of any capital stock from a person or persons
known by a majority of the Continuing Directors of the Corporation to be an
Interested Shareholder who has beneficially owned such capital stock for less
than three years prior to the date of such purchase, or any agreement in respect
thereof, at a price in excess of the Fair Market Value shall require the
affirmative vote of no less than 66 2/3% of the votes cast by the holders,
voting together as a single class, of all then outstanding shares of capital
stock, excluding for this purpose the votes by the Interested Shareholder,
unless a greater vote shall be required by law.
B. Such affirmative vote shall not be required for a purchase
or other acquisition of securities of the same class made on substantially the
same terms to all holders of such securities and complying with the applicable
requirements of the Exchange Act, and the rules and regulations thereunder (or
any subsequent provisions replacing the Exchange Act, rules or regulations).
Furthermore, such affirmative vote shall not be required for any purchase
effected on the open market and not the result of a privately-negotiated
transaction.
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Section 3. Powers of Continuing Directors. The Continuing Directors of
the Corporation shall have the power and duty to determine for the purposes of
this Article VI, on the basis of information known to them after reasonable
inquiry, whether a person is an Interested Shareholder, and the number of shares
of capital stock owned beneficially by any person.
ARTICLE VII
Board of Directors
Section 1. Management by Board of Directors. The business and affairs
of the Corporation shall be under the direction of the Board of Directors.
Section 2. Number of Directors. Subject to the addition of any
directors elected by a class of preferred stock as provided in Section 3 of this
Article VII, the number of directors which shall constitute the whole board
shall not be less than three nor more than nine, and shall be determined by
resolution adopted by a vote of two-thirds (2/3) of the entire board, or at an
annual or special meeting of shareholders by the affirmative vote of sixty-six
and two-thirds percent (66 2/3%) of the outstanding stock entitled to vote. No
reduction in number shall have the effect of removing any director prior to the
expiration of his term.
Section 3. Classes of Directors; Election by Shareholders; Vacancies.
The directors shall be divided into three classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire Board of
Directors. The term of the initial Class I directors shall terminate on the date
of the 1997 annual meeting of shareholders, the term of the initial Class II
directors shall terminate on the date of the 1998 annual meeting of shareholders
and the term of the initial Class III directors shall terminate on the date of
the 1999 annual meeting of shareholders. At each annual meeting of shareholders
beginning in 1997, successors to the class of directors whose term expires at
that annual meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, and any additional directors of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any vacancy on the Board of Directors, however resulting,
may be filled by a majority of the directors then in office, even if less than a
quorum, or by a sole remaining director. Any director elected to fill a vacancy
shall hold office for a term that shall coincide with the term of the class to
which such director shall have been elected. No election of directors need be by
written ballot.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of shareholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Certificate of Designation attributable to such Preferred Stock or
the resolution or resolutions adopted by the
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Board of Directors pursuant to Section 2 of this Article VII applicable thereto,
and such directors so elected shall not be divided into classes pursuant to this
Article VII unless expressly provided by such terms.
ARTICLE VIII
Indemnity
Section 1. Third Party Claims. The Corporation shall indemnify 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 of another
corporation, partnership, joint venture or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him 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 interest of the Corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe that
his conduct was unlawful. 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 did not act
in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interest of the Corporation and with respect to any criminal
action or proceeding had reasonable cause to believe that his conduct was
unlawful.
Section 2. Derivative Claims. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor 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 of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interest of the Corporation; 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 to the Corporation
unless and only to the extent that the court in which such action or suit was
brought shall determine, upon application, that despite the adjudication of
liability, but in the view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
Section 3. Expenses. Expenses, including fees and expenses of counsel,
incurred in defending a civil, criminal, administrative or investigative action,
suit or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized herein.
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Section 4. Insurance. The Corporation may purchase (upon resolution
duly adopted by the Board of Directors) and maintain insurance 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 of another corporation, partnership, joint venture, trust or
other 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 would have the power to indemnify him against such liability.
Section 5. Reimbursement. To the extent that a director, officer,
employee or agent of, or any other person entitled to indemnity hereunder by,
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to herein or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Section 6. Enforcement. Every such person shall be entitled, without
demand by him upon the Corporation or any action by the Corporation, to enforce
his right to such indemnity in an action at law against the Corporation. The
right of indemnification and advancement of expenses hereinabove provided shall
not be deemed exclusive of any rights to which any such person may now or
hereafter be otherwise entitled and specifically, without limiting the
generality of the foregoing, shall not be deemed exclusive of any rights
pursuant to statute or otherwise, of any such person in any such action, suit or
proceeding to have assessed or allowed in his favor against the Corporation or
otherwise, his costs and expenses incurred therein or in connection therewith or
any part hereof.
ARTICLE IX
Amendments; Bylaws; Control Shares Act; Written Consent
Section 1. Amendments to Certificate of Incorporation. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the issued and outstanding stock having voting power, voting together
as a single class, shall be required to amend, repeal or adopt any provision
inconsistent with Articles V, VI, VII, VIII and this Article IX of this
Certificate of Incorporation.
Section 2. Bylaws. Prior to the receipt of any payment for any of the
Corporation's stock, the Bylaws of the Corporation shall be adopted, amended or
repealed by the Incorporator. Thereafter, in furtherance and not in limitation
of the powers conferred by statute, the Board of Directors is expressly
authorized to adopt, repeal, alter, amend or rescind the Bylaws of the
Corporation. In addition, the Bylaws of the Corporation may be adopted,
repealed, altered, amended or rescinded by the affirmative vote of the holders
of sixty-six and two-thirds percent (66 2/3%) of the outstanding stock of the
Corporation entitled to vote thereon.
Section 3. Control Shares Act. The Corporation shall not be subject to
the Oklahoma Control Shares Act as codified at Sections 1145-1155 of the Act.
This election shall be effective on the date of filing this Certificate.
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Section 4. Action By Written Consent. Any action required or permitted
to be taken at a meeting of the shareholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes which would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of corporate action without
a meeting by less than unanimous written consent shall be given to those
shareholders who have not consented in writing.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed by its Chairman of the Board and Chief Executive
Officer and attested to by its Secretary this 13th day of August, 2001.
CHESAPEAKE ENERGY CORPORATION, an
Oklahoma corporation
By /s/ Aubrey K. McClendon
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Aubrey K. McClendon, Chairman of the
Board and Chief Executive Officer
ATTEST:
/s/ Patricia J. Murano
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Patricia J. Murano,
Assistant Secretary
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