EXHIBIT 3.1.1
RESTATED CERTIFICATE OF INCORPORATION
OF
LOMAK PETROLEUM, INC.
FIRST: The name of the Corporation is Lomak Petroleum, Inc.
SECOND: Its principal and registered office in the State of Delaware
is located at No. 100 West Tenth Street, the City of
Wilmington, County of New Castle. The name and address of its
registered agent is The Corporation Trust Company, No. 100
West Tenth Street, Wilmington, Delaware, 19801.
THIRD: The nature of the business or purposes to be conducted or
promoted are:
To explore, prospect, drill for, produce, market, sell, and
deal in and with petroleum, oil, asphaltum, natural gas,
gasoline, naphthene, hydrocarbons, oil shales, ores of every
kind or the mineral or nonmineral, liquid, solid, or volatile
substances and products, by-products, combinations, and
derivatives thereof, and to buy, lease, hire, contract for,
invest in, and otherwise acquire, and to own, hold, maintain,
equip, operate, manage, mortgage, create and grant security
interests in, deal in and with, and to sell, lease, exchange
and otherwise dispose of oil, gas, mineral, and mining lands,
wells, rights, royalties, overriding royalties, oil payments
and other oil, gas and mineral interests, claims, locations,
patents, concessions, easements, rights-of-way, franchises,
real and personal property, and all interests therein,
machinery for use on land, water, or air, for prospecting,
exploring, and drilling for, producing, gathering,
manufacturing, refining, purchasing, leasing, exchanging,
trading for, or otherwise disposing of oil, gas and such
mineral and non-mineral substances; and to do engineering and
contracting and to design, construct, drill, bore, sink,
develop, improve, extend, maintain, operate, and repair wells,
mines, plants, works, machinery, appliances, rigging, casing,
tools, storage, and transportation lines and systems for this
Corporation and other persons, associations, or corporations.
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware
as now in effect or hereafter amended.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 39 million
shares, divided into classes as follows:
35 million Common shares having a par value of $.01 per
share; and
4 million Preferred shares having a par value of $1.00
per share.
As of November 20, 1992 (the "Effective Date"), each share of
Common Stock issued and outstanding immediately prior to the
Effective Date shall automatically
be changed and converted, without any action on part of the
holder thereof, into 1/15th of a share of Common Stock and, in
connection with fractional interests in shares of Common Stock
of the Corporation, each holder whose aggregate holdings of
shares of Common Stock prior to the Effective Date amounted to
less than 15, or to a number not evenly divisible by 15 shares
of Common Stock, shall be entitled to receive for such
fractional interest, and at such time, any such fractional
interest shall be converted into the right to receive, upon
the surrender of the stock certificates formerly representing
shares of Common Stock of the Corporation, cash in lieu of
such fractional interest at a price based upon the average of
the low bid and high asked price per share of the Common Stock
for the ten trading days immediately preceding the Effective
Date based upon the quotations provided by NASDAQ.
The designations, voting powers, preferences and relative,
participating, optional or other special rights,
qualifications, limitations and restrictions of the above
classes of stock shall be as follows:
DIVISION A
SERIAL PREFERRED SHARES
SECTION 1. The Serial Preferred Shares may be issued from time to time
in one or more series. All Serial Preferred Shares shall be of equal rank and
shall be identical, except in respect of the matters that may be fixed 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 may be cumulative. Subject to the provisions of Sections 2 to 8,
both inclusive, of this Division, which provisions shall apply to all Serial
Preferred Shares, 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
by resolution or resolutions adopted prior to the issuance thereof to fix or
determine:
(a) The designation of the series, which may be by
distinguishing number, letter or title.
(b) The number of shares of the series, which number the Board
of Directors may (except where otherwise provided in the creation of
the series) increase or decrease (but not below the number of shares
thereof then outstanding).
(c) The dividend rate or rates on the shares of the series,
whether dividends shall be cumulative and, if so, the dates from which
dividends shall be cumulative, and the dates at which dividends, if
declared, shall be payable.
(d) The redemption rights and price or prices, if any, for
shares of the series (which may vary at different redemption dates).
(e) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
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(f) The liquidation price payable on shares of the series in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation.
(g) Whether the shares of the series shall be convertible into
Common Shares or other securities of the Corporation, and, if so, the
conversion price or rate (which may vary depending on the time at which
such conversion is made), any adjustments thereof, and all other terms
and conditions upon which such conversion may be made.
(h) Restrictions on the issuance of shares of the same series
or of any other class or series.
(i) The voting powers, if any, of such series.
SECTION 2. The holders of Serial Preferred Shares of each series, in
preference to the holders of Common Shares and of any other class of shares
ranking junior to the Serial Preferred Shares, shall be entitled to receive out
of any funds legally available and when and as declared by the Board of
Directors dividends in cash at the rate for such series fixed in accordance with
the provisions of Section 1 of this Division and no more, payable quarterly on
the dates fixed for such series. Such dividends may be cumulative, in the case
of shares of any particular series, from and after the date or dates fixed with
respect to such series. No dividends may be paid upon or declared or set apart
for any of the Serial Preferred Shares for any dividend period unless at the
same time a like proportionate dividend for the same dividend period, ratably in
proportion to the respective annual dividend rates fixed therefor, shall be paid
upon or declared or set apart for all Serial Preferred Shares of all series then
issued and outstanding and entitled to receive such dividend.
SECTION 3. In no event so long as any Serial Preferred Shares shall be
outstanding shall any dividends, except a dividend payable in Common Shares, or
other shares ranking junior to the Serial Preferred Shares, be paid or declared
or any distribution be made on the Common Shares or any other shares ranking
junior to the Serial Preferred Shares, nor shall any Common Shares or any other
shares ranking junior to the Serial Preferred Shares be purchased, retired or
otherwise acquired by the Corporation (except out of the proceeds of the sale of
Common Shares or other shares ranking junior to the Serial Preferred Shares
received by the Corporation subsequent to the date on which the Serial Preferred
Shares are first issued);
(a) Unless all accrued and unpaid dividends on Serial
Preferred Shares, including the full dividends for the current dividend
period, shall have been declared and paid for or a sum sufficient for
payment thereof set apart; and
(b) Unless there shall be no arrearages with respect to the
redemption of Serial Preferred Shares of any series from any sinking
fund provided for shares of such series in accordance with the
provisions of Section 1 of this Division.
SECTION 4. (a) Subject to the express terms of each series, the
Corporation may from time to time redeem all or any part of the Serial Preferred
Shares of any series at the time outstanding (i) at the option of the Board of
Directors at the applicable redemption price for such series fixed in accordance
with the provisions of Section 1 or (ii) in fulfillment of the
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requirements of any sinking fund provided for shares of such series at the
applicable sinking fund redemption price, fixed in accordance with the
provisions of Section 1, together in each case with accrued and unpaid dividends
to the redemption date.
(a) Notice of every such redemption shall be mailed, postage
prepaid, to the holders of record of the Serial Preferred Shares to be
redeemed at their respective addresses then appearing on the books of
the Corporation, not less than thirty (30) days nor more than sixty
(60) days prior to the date fixed for such redemption. At any time
before or after notice has been given as above provided, the
Corporation may deposit the aggregate redemption price of the Serial
Preferred Shares to be redeemed with any bank or trust company named in
such notice, directed to be paid to the respective holders of the
Serial Preferred Shares so to be redeemed, in amounts equal to the
redemption price of all Serial Preferred Shares so to be redeemed, on
surrender of the stock certificate or certificates held by such
holders, and upon the making of such deposit such holders shall cease
to be shareholders with respect to such shares, and after such notice
shall have been given and such deposit shall have been made such
holders shall have no interest in or claim against the Corporation with
respect to such shares except only to receive such money from such bank
or trust company without interest or the right to exercise, before the
redemption date, any unexpired privileges of conversion. In case less
than all of the outstanding Serial Preferred Shares of any series are
to be redeemed, the Corporation shall select by lot the shares so to be
redeemed in such manner as shall be prescribed by its Board of
Directors
(b) Any Serial Preferred Shares which are redeemed by the
Corporation pursuant to the provisions of this Section 4 and any Serial
Preferred Shares which are purchased and delivered in satisfaction of
any sinking fund requirements provided for shares of such series and
any Serial Preferred Shares which are converted in accordance with the
express terms thereof shall be cancelled and not reissued. Any Serial
Preferred Shares otherwise acquired by the corporation shall resume the
status of authorized and unissued Serial Preferred Shares without
serial designation.
SECTION 5. (a) The holders of Serial Preferred Shares of any series
shall, in case of voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation, be entitled to receive in full out of the
assets of the Corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Shares or any other shares
ranking junior to the Serial Preferred Shares, the amounts fixed with respect to
the shares of such series in accordance with Section 1 of this Division plus an
amount equal to all dividends accrued and unpaid thereon to the date of payment
of the amount due pursuant to such liquidation, dissolution or winding up of the
affairs of the Corporation. In case the net assets of the Corporation legally
available therefor are insufficient to permit the payment upon all outstanding
Serial Preferred Shares of the full preferential amount to which they are
respectively entitled, then such net assets shall be distributed ratably upon
outstanding Serial Preferred Shares in proportion to the full preferential
amount to which each such share is entitled.
After payment to holders of Serial Preferred Shares of the full
preferential amounts as aforesaid, holders of Serial Preferred Shares as such
shall have no right or claim to any of the remaining assets of the Corporation.
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(a) The merger or consolidation of the Corporation into or
with any other corporation, or the merger of any other corporation into
it, or the sale, lease or conveyance of all or substantially all the
property or business of the Corporation, shall not be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for
the purposes of this Section 5.
SECTION 6. Unless and except to the extent otherwise required by law or
provided in the resolution or resolutions of the Board of Directors creating any
series of Serial Preferred Shares pursuant to this Division A, the holders of
Serial Preferred Shares shall have no voting power with respect to any matter
whatsoever.
SECTION 7. The holders of Serial Preferred Shares shall have no
preemptive rights to purchase or have offered to them for purchase any shares or
other securities of the Corporation, whether now or hereafter authorized.
SECTION 8. For the purpose of this Division A:
Whenever reference is made to shares "ranking junior to the Serial
Preferred Shares," such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof as to the
payment of dividends or as to distributions in the event or a voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation are junior and subordinate to the rights of the holders of Serial
Preferred Shares.
DIVISION B
COMMON SHARES
The Common Shares shall be subject to the express terms of the Serial
Preferred Shares and any series thereof and to the express terms of the
Preferred Stock. Each Common Share shall be equal to every other Common Share.
The holders of Common Shares shall be entitled to one vote for each share upon
all matters presented to the shareholders.
The holders of Common Shares shall have no preemptive right to purchase
or have offered to them for purchase any shares or other securities of the
Corporation, whether now or hereafter authorized.
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FIFTH: The names and mailing addresses of the incorporators are as
follows:
Name Mailing Address
Anthony E. Efremoff 1200 Harter Bank Building
Canton, Ohio 44702
Terrence P. Kessler 1200 Harter Bank Building
Canton, Ohio 44702
Thomas E. Martin 1200 Harter Bank Building
Canton, Ohio 44702
SIXTH: The names and mailing addresses of the persons who will serve
as the Board of Directors until their successors are elected
and qualify are:
Name Mailing Address
C. R. Michaels 150 Grand Trunk
Hartville, Ohio 44632
K. G. Hungerford, II Hungerford & Co., P.C.
Riverview Center
678 Front Avenue, N.W.
Grand Rapids, Michigan 45904
Richard J. Lacks Lacks Industries, Inc.
1601 Galbraith, S.E.
Grand Rapids, Michigan 49506
John P. Lacks Lacks Industries, Inc.
1601 Galbraith, S.E.
Grand Rapids, Michigan 49506
David Augspurger Kingsley Associates
25625 Southfield Road
Southfield, Michigan 48075
John O'Neill Kingsley Associates
25625 Southfield Road
Southfield, Michigan 48075
Elmo Zumwalt, Jr. 2721 North Lake Drive
Milwaukee, Wisconsin 53211
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Name Mailing Address
Benjamin Weiner 1492 High Ridge Road
Stamford, Connecticut 06903
Otto J. Dax Siemens Corporation
General Motors Building
767 - 5th Avenue
New York, New York 10022
SEVENTH: In furtherance and not in limitation of the powers granted
them by statute, the Board of Directors is hereby authorized:
(1) To alter, make, amend or repeal the By-laws of the
corporation.
(2) From time to time,
a) to issue, sell and dispose of shares of the
authorized and previously unissued capital stock of the
corporation and shares of its outstanding capital stock held
in its treasury;
b) to issue, sell and dispose of the bonds,
debentures, notes and other obligations or evidences of
indebtedness of the corporation convertible into, or carrying
rights to purchase, stock of the corporation of any class; and
c) to authorize and cause to be executed mortgages
and liens upon the real and personal property of the
corporation.
(3) To purchase any of the outstanding shares of the
Corporation at such price and upon such terms as the Directors may
determine.
(4) The corporation may in its By-laws confer powers upon its
Board of Directors in addition to the foregoing, and in addition to the
powers and authorities expressly conferred upon it by statute.
(5) Any former, present or future director, officer or
employee of the company or the legal representative of any such
director, officer, or employee shall be indemnified by the company
a) against reasonable costs, disbursements and
counsel fees paid or incurred where such person has been
successful on the merits or otherwise in any pending,
threatened or completed civil, criminal, administrative or
arbitrative action, suit or proceeding, and any appeal therein
and any inquiry or investigation which could lead to such
action, suit or proceeding, or in defense of any claim, issue
or matter therein, by reason of such person being or having
been such director, officer or employee, and
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b) with respect to any such action, suit, proceeding,
inquiry or investigation for which indemnification is not made
under (a) above, against reasonable costs, disbursements
(which shall include amounts paid in satisfaction of
settlements, judgments, fines and penalties, exclusive,
however, of any amounts paid or payable to the company) and
counsel fees if such person also had no reasonable cause to
believe the conduct was unlawful, with the determination as to
whether the applicable standard of conduct was met to be made
by a majority of the members of the Board of Directors
(sitting as a committee of the Board) who were not parties to
such inquiry, investigation, action, suit or proceeding or by
any one or more disinterested counsel to whom the question may
be referred to the Board of Directors; provided, however, in
connection with any proceeding by or in the right of the
company, no indemnification shall be provided as to any person
adjudged by any court to be liable for negligence or
misconduct except as and to the extent determined by such
court.
The termination of any such inquiry, investigation,
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 such person did
not meet the standards of conduct set forth in subsection (b)
above.
Reasonable costs, disbursements and counsel fees
incurred by such person in connection with any inquiry,
investigation action, suit or proceeding may be paid by the
company in advance of the final disposition of such matter if
authorized by a majority of the Board of Directors (sitting as
a committee of the Board) not parties to such matter upon
receipt by the company of an undertaking by or on behalf of
such person to repay such amount unless it is ultimately
determined that such person is entitled to be indemnified as
set forth herein.
The Board of Directors may, at any regular or special
meeting of the Board, by resolution, accord similar
indemnification (prospective or retroactive) to any director,
trustee, officer or employee of any other company who is
serving as such at the request of the company because of the
company's interest in such other company and any officer,
director or employee of any constituent corporation absorbed
by the company in a consolidation or merger, or the legal
representative of any such director, trustee, officer or
employee.
The indemnification herein provided shall not exclude
any other rights to which such person may be entitled as a
matter of law or which may be lawfully granted.
EIGHT: 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.
This paragraph
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shall not eliminate or limit the liability of a director for
any act or omission occurring prior to the effective date of
its adoption. If the General Corporation Law of the State of
Delaware is hereafter amended to authorize corporate action
further limiting or eliminating the personal liability of
directors, then the liability of a director to the Corporation
shall be limited or eliminated to the fullest extent permitted
by the General Corporation Law of the State of Delaware, as so
amended from time to time. No repeal or modification of this
Article VIII, directly or by adoption of an inconsistent
provision of this Certificate of Incorporation, by the
stockholders of the Corporation shall be effective with
respect to any cause of action, suit claim or other matter,
but for this Article VIII, would accrue or arise prior to such
repeal or modification.
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