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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
XPLOR CORPORATION
ARTICLE ONE
The name of the Corporation is Xplor Corporation.
ARTICLE TWO
The address of the registered office of the Corporation in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at that
address is The Corporation Trust Company.
ARTICLE THREE
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE FOUR
The Corporation shall have authority to be exercised by the Board of
Directors, to issue 25,000,000 shares of common voting stock of the par value
of $.01 per share (the "Common Stock") having an aggregate par value of
$250,000 and 10,000,000 shares of preferred stock of the par value of $.01 per
share (the "Preferred Stock") having an aggregate par value of $100,000.
Shares of the Preferred Stock shall be designated as the Board of Directors may
determine and may be issued in series by Board of Directors as hereinafter
provided in paragraph (d) below. The relative rights and preferences of the
share of capital stock of the Corporation shall be as follows:
(a) Each holder of Common Stock shall at eery meeting of
stockholders of the Corporation be entitled to one vote in person or by proxy
for each share of Common Stock held by such holder and each holder of Preferred
Stock with voting rights shall at every meeting of stockholders of the
Corporation be entitled to one vote in person or by proxy for each share of
Preferred Stock with voting rights held by such holder to the extent of such
rights as specified pursuant to paragraph (c) (vii) below.
(b) Subject to the rights, if any, of the holders of the
Preferred Stock, or any series thereof, the holders of the Common Stock are
entitled to the entire voting power, all dividends declared and paid by the
Corporation and all assets of the corporation in the event of any liquidation,
dissolution, or winding up of the Corporation.
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(c) The Preferred Stock may be divided into and issued
from time to time in one or more series. All shares of the Preferred Stock
shall be of equal rank and shall be identical, except with respect to the
particulars that may be fixed by the Board of Directors as hereinafter provided
pursuant to authority that is hereby expressly vested in the Board of
Directors; provided, however, that each share of a given series of the
Preferred stock shall be identical in all respects with the other shares of
such series. Before any shares of the Preferred Stock of any particular series
shall be issued, the Board of Directors shall fix and determine, in the manner
provided by law, the following particulars with respect to the share of such
series:
(i) the distinctive designation of such series
and the number of share of Preferred Stock that shall
constitute such series, which number may be increased
(except where otherwise provided by the Board of
Directors in creating such series) or decreased (but
not below the number of shares of such series then
issued) from time to time by the Board of Directors
by resolution;
(ii) the dividend or rate of dividend payable with
respect to shares of Preferred Stock of such series,
the time of payment of any dividend, whether
dividends shall be cumulative and, if so, the
conditions under which and the date from which
dividends shall be accumulated;
(iii) the redemption provisions applicable to the
shares of Preferred Stock of such series, if any, and
if applicable, the time or times when, the price or
prices at which, and the other terms and conditions
under which the shares of Preferred Stock of such
series shall be redeemable;
(iv) the amount payable on shares of Preferred
Stock of such series in the event of any voluntary or
involuntary dissolution, liquidation or winding up of
the affairs of the Corporation, which shall not be
deemed to include the merger or consolidation of the
Corporation or a sale, lease or conveyance of all or
part of the assets of the Corporation;
(v) the purchase, retirement or sinking fund
provisions, if any, for the redemption or purchase of
shares of Preferred Stock of such series;
(vi) the rights, if any of the holders of shares
of Preferred Stock of such series to convert such
shares into or exchange such shares for shares of the
Common Stock or shares of any
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other series of the Preferred Stock and the terms and
conditions of such conversion or exchange;
(vii) subject to paragraph (a) above, the extent of
voting rights of the shares of Preferred Stock of
such series of the absence thereof; and
(viii) such other terms limitations, rights and
preferences, if any, of such series as the Board of
Directors may lawfully fix under the laws of the
State of Delaware as in effect at the time of certain
of such series.
ARTICLE FIVE
None of the holders of the shares of any class of stock of the
Corporation shall be entitled as matter of right to purchase, subscribe for or
otherwise acquire any new or additional shares of stock of the Corporation of
any class now or hereafter authorized, or any options or warrants to purchase,
subscribe for or otherwise acquire any such new or additional shares, or any
shares, evidences of indebtedness, or any other securities convertible into or
carrying options or warrants to purchase, subscribe for or otherwise acquire
any new or additional shares other than such (if any) as the Board of Directors
may determine from time to time.
ARTICLE SIX
The number of directors which shall constitute the whole Board of
Directors of the Corporation shall be not less than six (6) nor more than ten
(10) and shall be fixed in the By-Laws of the Corporation from time to time.
ARTICLE SEVEN
The power to fill vacancies on the Board of Directors (whether by
reason or resignation or otherwise) shall be vested solely in the Board of
Directors and vacancies may be filled by a majority of the directors then in
office, although less than a quorum, unless all directorships are vacant, in
which case the stockholders shall fill the then existing vacancies.
ARTICLE EIGHT
Special meetings of the stockholders of the Corporation for any
purpose may be called at any time by the Board of Directors, or by a committee
of the Board of Directors which has been duly designated by the Board of
Directors and whose power and authority, as provided in a resolution of the
Board of Directors or in the By-Laws of the Corporation, include the power to
call such meetings, but such special meetings may not be called by any other
person.
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ARTICLE NINE
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind the By-Laws of the Corporation, provided that the Board of
Directors may not amend the By-Laws to increase the number of directors above
ten.
ARTICLE TEN
The election of directors need not be by written ballot unless
required by the By-Laws of the Corporation. Any director may be removed,
either for or without cause, at any time, by the affirmative vote of the
holders of record of at least two-thirds (2/3) of the outstanding shares of
stock entitled to vote, and the vacancy in the Board caused by any such removal
shall be filed as provided herein; provided, that where the holders of any
class or series are entitled to elect one or more directors the provisions of
this section shall apply in respect of removal without cause of a director or
directors so elected, to the vote of the outstanding share of that class or
series.
ARTICLE ELEVEN
The Corporation may indemnify, to the fullest extent permitted by the
General Corporation law of the State of Delaware and as provided in the By-laws
of the Corporation, any and all persons whom it shall have the power to
indemnify from and against any and all expenses, liabilities or other matters.
ARTICLE TWELVE
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of section 279 of Title 8
of the Delaware Code, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, said compromise or arrangement and said reorganization shall, if
sanctioned by the court to which the said application has been made, be binding
on all the creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of this Corporation, as the case may be, and also on
this Corporation.
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ARTICLE THIRTEEN
The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in this Certificate of Incorporation, in the manner
now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation. Notwithstanding
the preceding sentence, the provisions of this Certificate of Incorporation
relating to the power to remove directors or to fill vacancies on the Board and
amendments to the By-laws of the Corporation may not be amended without the
affirmative vote of the holders of two- thirds of the shares entitled to vote
in the election of directors.
ARTICLE FOURTEEN
Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to provisions 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 By-Laws. Election of directors need not be by written ballot
unless the By-Laws of the Corporation so provide.
ARTICLE FIFTEEN
The name and mailing address of the incorporator is Charles A. Mele,
380 Madison Avenue, New York, New York 10017.
The undersigned, being the sole incorporator hereinbefore name, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, does make this certificate, hereby declaring and
certifying that this the undersigned's act and deed and the facts herein stated
are true, and accordingly has hereunto set his hand this 20th day of August,
1985.
---------------------------
Charles A. Mele
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CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
XPLOR CORPORATION
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, the undersigned corporation does hereby certify:
FIRST: The Board of Directors of Xplor Corporation (the
"Corporation"), by unanimous written consent in lieu of a meeting, adopted a
resolution setting forth a proposed amendment to the Certificate of
Incorporation of said Corporation, declaring said amendment to be advisable.
The resolution setting forth the proposed amendment is as follows:
RESOLVED: that Article Sixteen be added to
the Certificate of Incorporation of the Corporation:
ARTICLE SIXTEEN: A director of this corporation
shall not be personally 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 involved intentional misconduct or a knowing violation
of law, (iii) for a stock repurchase which is illegal under
Section 174 of the General Corporation Law of the State of
Delaware or, (iv) for any transaction from which the director
derived an improper personal benefit.
SECOND: Such amendment was approved by the holders of a majority of
the Corporation's outstanding Common Stock entitled to vote thereon.
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THIRD: The aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 141 and 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, Xplor Corporation has caused its corporate seal to
be hereunto affixed and this certificate to be signed by Andrew Stanhope, its
Vice President, and attested by William C. Kaltnecker, its Secretary, this 4th
day of June, 1987.
XPLOR CORPORATION
By
----------------------------------
Andrew Stanhope,
Vice President
ATTEST:
- ----------------------------------
William C. Kaltnecker, Secretary
(Corporate Seal)
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CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
XPLOR CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"Corporation") is Xplor Corporation.
2. The Certificate of Incorporation of the Corporation is hereby
amended by striking out the first sentence of Article Fourth thereof and by
substituting in lieu of said sentence the following new sentence:
"Article FOURTH: The Corporation shall have authority
to be exercised by the Board of Directors, to issue 5,000,000
shares of common voting stock of the par value of $.01 per
share (the "Common Stock") having an aggregate par value of
$50,000 and 1,000,000 shares of preferred stock of the par
value of $.01 per share (the "Preferred Stock") having an
aggregate par value of $10,000."
3. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the provisions of Section
242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Xplor Corporation has caused its corporate seal to
be hereunto affixed and this certificate to be signed by Andrew Stanhope, its
Vice President, and attested by William C. Kaltnecker, its Secretary, this 8th
day of August, 1990.
XPLOR CORPORATION
By:
------------------------------
Andrew Stanhope,
Vice President
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Attest:
- --------------------------------------
William C. Kaltnecker, Secretary
(Corporate Seal)
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
VENUS EXPLORATION, INC.
Venus Exploration, Inc. (the "Corporation" or the "Company"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, hereby certifies and adopts the
following Amendment to its Certificate of Incorporation:
FIRST: The dated of filing of the Corporation's original Certificate
of Incorporation with the Secretary of Sate of the State of Delaware was
September 5, 1985.
SECOND: The Board of Directors of the Corporation, by unanimous
consent of its members filed with the minutes of the Board of Directors,
adopted the following resolution:
FURTHER RESOLVED, that it is desirable for the Company to increase the
number of authorized shares of (i) Common Stock from 15 million to 30
million shares and (ii) Preferred Stock from 1 million to 5 million
shares, and to accomplish the same, it is hereby declared advisable
that the Certificate of Incorporation of the Company be amended by
changing the first two sentences of Article FOURTH to read as follows:
The Corporation shall have the authority to be exercised by the Board
of Directors to issue (i) 30 million shares of common voting stock of
the par value of $0.01 per share (the "Common Stock") having an
aggregate par value of $300,000, (ii) 5 million shares of preferred
stock of the par value of $0.01 per share (the "Preferred Stock")
having an aggregate par value of $50,000. Shares of the Preferred
Stock shall be designated as the Board of Directors may determine and
may be issued in series by the Board of Directors as hereinafter
provided in paragraph (c) below.
THIRD: At a special meeting of the shareholders of the Corporation
held on October 28, 1997, stockholders of the Corporation holding in excess of
a majority of the outstanding shares entitled to vote thereon voted in favor of
the amendment in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
FOURTH: The aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
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IN WITNESS WHEREOF, said Venus Exploration, Inc., has caused this
certificate to be signed by John Y. Ames, its President, and attested by Will
C. Jones IV, its Secretary, this 7th day of November, 1997.
VENUS EXPLORATION, INC.
ATTEST:
By: By:
----------------------------- ------------------------------------
Will C. Jones, IV John Y. Ames, President
Secretary