1
RESTATED CERTIFICATE OF INCORPORATION
OF
WRT ENERGY CORPORATION
WRT Energy Corporation (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware, does hereby certify that:
1. The name of the Corporation is WRT Energy
Corporation, and the date of filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was June 20,
1997.
2. This Restated Certificate of Incorporation restates
and integrates and further amends the Certificate of Incorporation of the
Corporation as follows: Article IX of the Certificate of Incorporation is
added to permit the Corporation to expressly opt out of Section 203 of the
General Corporation Law of the State of Delaware (the "DGCL").
3. The Corporation, as of the date hereof, has not
received any payment for any of its stock.
4. This Restated Certificate of Incorporation was duly
adopted by a majority of the directors of the Board of Directors of the
Corporation in accordance with the provisions of Section 241 of the DGCL.
5. The text of the Certificate of Incorporation as
amended or supplemented heretofore is further amended hereby, and is hereby
restated, to read in its entirety as herein set forth:
RESTATED CERTIFICATE OF INCORPORATION
OF
WRT Energy Corporation
ARTICLE I
NAME
The name of the corporation is WRT Energy Corporation (the
"Corporation").
2
ARTICLE II
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL"), within or without the State of
Delaware.
ARTICLE III
DURATION
The duration of the Corporation shall be in perpetuity, or such
maximum period as may be authorized by the laws of Delaware.
ARTICLE IV
AUTHORIZED CAPITAL
The Corporation is hereby authorized to issue a total of fifty-one
million (51,000,000) shares of capital stock which shall be subdivided into
classes as follows:
(a) Fifty million (50,000,000) shares of the Corporation's capital
stock shall be denominated as Common Stock, have a par value of $0.01 per
share, and have the rights, powers and preferences set forth in this paragraph.
The holders of Common Stock shall share ratably, with all other classes of
common equity, in any dividends that may, from time to time, be declared by the
Board of Directors. No dividends may be paid with respect to the Corporation's
Common Stock, however, until dividend distributions to the holders of Preferred
Stock, if any, have been paid in accordance with the certificate or
certificates of designation relating to such Preferred Stock. The holders of
Common Stock shall share ratably, with all other classes of common equity, if
any, in any assets of the Corporation that are available for distribution to
the holders of common equity securities of the Corporation upon the dissolution
or liquidation of the Corporation. The holders of Common Stock shall be
entitled to cast one vote per share on all matters that are submitted for a
vote of the stockholders. There are no redemption or sinking fund provisions
that are applicable to the Common Stock of the Corporation. Subject only to
the requirements of the DGCL and the foregoing limits, the Board of Directors
is expressly authorized to issue shares of Common Stock without stockholder
approval, at any time and from time to time, to such persons and for such
consideration as the Board of Directors shall deem appropriate under the
circumstances.
(b) One million (1,000,000) shares of the Corporation's authorized
capital stock shall be denominated as Preferred Stock, par value of $0.01 per
share. Shares of Preferred Stock may be issued from time to time in one or
more series as the Board of Directors, by resolution or resolutions, may from
time to time determine, each of said series to be distinctively designated.
The voting powers, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations or restrictions thereof, if
any, of each such Series of Preferred Stock may differ from those of any and
all other series of Preferred Stock at any time
-2-
3
outstanding, and the Board of Directors is hereby expressly granted authority
to fix or alter, by resolution or resolutions, the designation, number, voting
powers, preferences and relative, participating, optional and other special
rights, and the qualifications, limitations and restrictions thereof, of each
such series of Preferred Stock, including, but without limiting the generality
of the foregoing, the following:
(i) The distinctive designation of, and the number of shares of
Preferred Stock that shall constitute, each series of
Preferred Stock, which number (except as otherwise provided by
the Board of Directors in the resolution establishing such
series) may be increased or decreased (but not below the
number of shares of such series then outstanding) from time to
time by the Board of Directors without prior approval of the
holders of such series;
(ii) The rights in respect of dividends, if any, of such series of
Preferred Stock, the extent of the preference or relation, if
any, of such dividends payable on any other class or classes
or any other series of the same or other class or classes of
capital stock of the Corporation, and whether such dividends
shall be cumulative or non-cumulative;
(iii) The right, if any, of the holders of such series of Preferred
Stock to convert the same into, or exchange the same for,
shares of any other class or classes or of any other series of
the same or any other class or classes of capital stock of the
Corporation and the terms and conditions of such conversion or
exchange, including, without limitation, whether or not the
number of shares of such other class or series into which
shares of such series may be converted or exchanged shall be
adjusted in the event of any stock split, stock dividend,
subdivision, combination, reclassification or other
transaction or series of transactions affecting the class or
series into which such series of Preferred Stock may be
converted or exchanged;
(iv) Whether or not shares of such series of Preferred Stock shall
be subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, shares of such series of Preferred Stock may be
redeemed;
(v) The rights, if any, of the holder of such series of Preferred
Stock upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation or in the event
of any merger or consolidation of or sale of assets by the
Corporation;
(vi) The terms of sinking fund or redemption or repurchase account,
if any, to be provided for shares of such series of Preferred
Stock;
(vii) The voting powers, if any, of the holders of any series of
Preferred Stock generally or with respect to any particular
matter, which may be less than, equal to or greater than one
vote per share, and which may, without limiting the generality
-3-
4
of the foregoing, include the right, voting as a series by
itself or together with the holders of any other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation (which,
without limiting the generality of the foregoing, may include
a specified number or portion of the then-existing number of
authorized directorships of the Corporation, or a specified
number or portion of directorships in addition to the
then-existing number of authorized directorships of the
Corporation), generally or under such specific circumstances
and on such conditions, as shall be provided in the resolution
or resolutions of the Board of Directors adopted pursuant
hereto; and
(viii) Such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications,
limitations and restrictions thereof, as the Board of
Directors shall determine.
Upon the creation of any new class or series of Preferred Stock of the
Corporation, the Board of Directors shall prepare and file with the records of
the Corporation and pursuant to the applicable provisions of the DGCL a
certificate setting forth the rights and preferences of such class or series of
Preferred Stock, which certificate as so filed shall be deemed an amendment to
this Certificate of Incorporation and shall not require the consent of any
stockholder.
(c) In addition to the Common Stock and Preferred Stock described
above, the Board of Directors is authorized to cause the issuance of any
options, rights, warrants or appreciation rights relating to any equity or debt
security of the Corporation and which may have rights or preference junior or
senior to any equity or debt security of the Corporation from time to time on
terms and conditions established in the sole and complete discretion of the
Board of Directors. If and to the extent required by the DGCL, upon the
creation of any new class or series of additional securities of the
Corporation, the Board of Directors shall prepare and file with the records of
Corporation a certificate setting forth the rights and preferences of such
class or series of additional securities of the Corporation, which certificate
shall be deemed an amendment to this Certificate of Incorporation and shall not
require the consent of any stockholder.
(d) Except to the extent that such rights are specifically
enumerated in a certificate setting forth the rights and preferences of a
specific class or series of Preferred Stock or other securities of the
Corporation, no stockholder shall have any preemptive, preferential or other
right, including, without limitation, with respect to (i) the issuance or sale
of additional Common Stock of the Corporation, (ii) the issuance or sale of
additional Preferred Stock of the Corporation, (iii) the issuance of any
obligation and/or evidence of indebtedness of the Corporation which is or may
be convertible into or exchangeable for, or accompanied by any rights to
receive, purchase or subscribe to, any shares of Common Stock, Preferred Stock
or other securities of the Corporation, (iv) the issuance of any right of
subscription to, or right to receive, any warrant or option for the purchase of
any Common Stock, Preferred Stock or other securities of the Corporation or (v)
the issuance or sale of any other equity or debt securities that may be issued
or sold by the Corporation from time to time.
-4-
5
(e) Notwithstanding anything in this Certificate of Incorporation to
the contrary, the Board of Directors shall be prohibited from authorizing or
issuing any equity securities that have no voting rights.
ARTICLE V
RIGHTS AND POWERS OF STOCKHOLDERS
(a) Meetings of stockholders may be held within or without the
State of Delaware, at such date and time as is requested by the person or
persons calling the meeting, within the limits fixed by law. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-laws of the Corporation.
(b) At any annual or special meeting of the stockholders, only
such business shall be conducted as shall have been properly brought before the
meeting in accordance with this Article V. To be properly brought before an
annual meeting business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a stockholder's notice must
be delivered to or mailed and received at the principal executive offices of
the Corporation not less than sixty (60) days nor more than ninety (90) days
prior to the meeting, provided, however, that in the event that less than
seventy (70) days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must
be so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c) the number
of shares of the Corporation which are beneficially owned by the stockholder
and (d) any material interest of the stockholder in such business. To be
properly brought before a special meeting of stockholders, business must have
been specified in the notice of meeting (or supplement thereto) given by or at
the direction of the Board of Directors. Notwithstanding anything in the
By-laws to the contrary, no business shall be conducted at any annual or
special meeting except in accordance with the procedures set forth in this
Article V. The chairman of the annual meeting shall, if the facts warrant,
determine and declare at the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Article V, and if
he should so determine, he shall so declare at the meeting and any such
business not properly brought before the meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the
procedures set forth in this Article V shall be eligible for election as
directors of the Corporation. Nominations of
-5-
6
persons for election to the Board of Directors of the Corporation may be made
at a meeting of stockholders by or at the direction of the Board of Directors
or by any stockholder of the Corporation entitled to vote for the election of
directors at the meeting who complies with the notice procedures set forth in
this Article V. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, a stockholder's notice
shall be delivered to or mailed and received at the principal executive offices
of the Corporation not less than sixty (60) days nor more than ninety (90) days
prior to the meeting, provided, however, that in the event that less than
seventy (70) days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must
be so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice shall set forth (a)
as to each person whom the stockholder proposes to nominate for election or
reelection as a director, (i) the name, business address and residence address
of such person, (ii) the principal occupation or employment of such person,
(iii) the number of shares, if any, of the Corporation which are beneficially
owned by such person and (iv) any other information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including without
limitation such persons' written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
Corporation's books, of such stockholder and (ii) the number of shares of the
Corporation which are beneficially owned by such stockholder. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed
herein, and if he should so determine, he shall so declare at the meeting and
the defective nomination shall be disregarded.
ARTICLE VI
DIRECTORS
(a) The business and affairs of the Corporation shall be conducted
and managed by, or under the direction of, the Board of Directors. The exact
number of directors of the Corporation shall be fixed by the Board of Directors
as provided in the By-laws.
(b) The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by the DGCL (including,
without limitation, paragraph (7) of subsection (b) of Section 102 thereof), as
the same may be amended and supplemented from time to time. If the DGCL
hereafter is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of the Corporation, in
addition to the limitation on personal liability provided herein, shall be
limited to the fullest extent permitted by the amended DGCL. Any repeal or
modification of this paragraph by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of such repeal
or modification.
-6-
7
(c) The election of directors of the Corporation need not be by
written ballot, unless the By-laws of the Corporation otherwise provide.
ARTICLE VII
REGISTERED OFFICE AND AGENT, AND DIRECTORS
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, County of New Castle, Delaware,
19085. Corporation Service Company is the Corporation's registered agent at
this address. The names and mailing addresses of the persons who are to serve
as directors until the first annual meeting of stockholders or until their
successors are elected and qualified are:
Name Address
------------------------- ------------------------------------------------------------
1. Charles E. Davidson 411 West Putnam Avenue, Greenwich, CT 06830
2. Mark Liddell 1601 N.W. Expressway, Suite 700, Oklahoma City,
OK 73118-1401
3. Mike Liddell 1601 N.W. Expressway, Suite 700, Oklahoma City,
OK 73118-1401
4. Robert E. Brooks 343 Third Street, Suite 205, Baton Rouge, LA 70801
5. Alan May 10814 Everwood Lane, Houston, TX 70024
ARTICLE VIII
AMENDMENTS TO THE CERTIFICATE OF
INCORPORATION AND BY-LAWS
(a) The Corporation reserves the right to amend, alter, change or
repeal, from time to time, any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation of powers.
(b) The Board of Directors shall have the power to make, adopt,
alter, amend and repeal from time to time the By-laws of this Corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to adopt, amend and repeal by-laws.
-7-
8
ARTICLE IX
SECTION 203 - BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation hereby expressly elects not to be governed by Section
203 of the DGCL.
ARTICLE X
INCORPORATOR
Robert E. Hochstein is the sole incorporator and his mailing address
is c/o Schulte Roth & Zabel LLP, 900 Third Avenue, New York, New York, 10022.
-8-
9
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Gary C. Hanna, its President, this ____ day of July, 1997.
By:
-------------------------------------
Name: Gary C. Hanna
Title: President
-9-