AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BLUE DOLPHIN ENERGY COMPANY
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Blue Dolphin Energy Company, a corporation duly organized and existing
under and by virtue of the provisions of the General Corporation Law of the
State of Delaware (the "Delaware General Corporation Law"), hereby certifies as
follows:
1. The name of this corporation is Blue Dolphin Energy Company.
2. The name under which this corporation was originally incorporated
was ZIM Energy Corp., and the original Certificate of Incorporation of this
corporation was filed with the Secretary of State of the State of Delaware on
January 21, 1986 (the "Original Certificate of Incorporation").
3. This Amended and Restated Certificate of Incorporation restates and
further amends the Original Certificate of Incorporation, as heretofore amended,
by amending the first paragraph of Article IV to increase the total shares
authorized for issuance from 27,500,000 to 102,500,000 and to increase the
number of shares of Common Stock authorized for issuance from 25,000,000 shares
to 100,000,000 shares.
4. This Amended and Restated Certificate of Incorporation of Blue
Dolphin Energy Company was duly proposed by the Board of Directors of this
corporation and was duly adopted by a vote of the stockholders of this
corporation in accordance with the provisions of Sections 242 and 245 of the
Delaware General Corporation Law.
5. The text of the Amended and Restated Certificate of Incorporation of
Blue Dolphin Energy Company, as amended hereby, is restated to read in its
entirety as follows:
ARTICLE I
Name
----
The name of the corporation is Blue Dolphin Energy Company (the
"Corporation").
ARTICLE II
Registered Agent and Office
---------------------------
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, Corporation Trust Center, Wilmington, County of
New Castle, Delaware 19801. The name of the registered agent of the Corporation
at such address is The Corporation Trust Company.
ARTICLE III
Purposes and Powers
-------------------
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful business, act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware (the "Law").
In addition to the powers and privileges conferred upon the Corporation
by law and those incidental thereto, the Corporation shall possess and may
exercise all the powers and privileges, which are necessary or convenient to the
conduct, promotion or attainment of the business, objects or purposes of the
Corporation.
ARTICLE IV
Capital Stock
-------------
The total number of shares of stock which the Corporation shall have
the authority to issue is 102,500,000 shares, of which 100,000,000 shall be
shares of Common Stock, par value $.01 per share (the "Common Stock"), and
2,500,000 shall be shares of Preferred Stock, par value $.10 per share (the
"Preferred Stock").
A description of the respective classes of stock and a statement of the
designations and the powers, preferences, and rights, and the qualifications,
limitations and restrictions of the shares of such classes of stock and the
limitations on or denial of the voting rights of the shares of such classes of
stock are as follows:
Section 4.1. Common Stock Provisions. The following provisions apply to
all shares of Common Stock of the Corporation.
(a) Dividends. Subject to the provisions of law and any
preferences of the Preferred Stock or of any other stock then
outstanding ranking prior to the Common Stock as to dividends, the
holders of the Common Stock shall be entitled to receive, when, as and
if declared by the Board of Directors of the Corporation, out of funds
legally available therefor as determined by the Board of Directors,
dividends payable in cash, securities or other property, or any other
stock having a preference as to the payment of dividends. No dividends
shall be declared or paid on any class of Common Stock unless any and
all current and accumulated dividends payable with respect to any
Preferred Stock or any other stock then outstanding having a preference
as to the payment of dividends shall have been declared and paid or the
Corporation shall have reserved or provided for the payment thereof.
(b) Voting. Each holder of Common Stock shall be entitled to
one vote for each share held on all matters submitted to a vote of
stockholders of the Corporation.
(c) Liquidation. In the event of any voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the
Corporation (as used in this Article IV, "liquidation"), after payment
or provision for the payment of the debts and other liabilities of the
Corporation and any preferential amounts to which the holders of
Preferred Stock or of any other stock then outstanding ranking prior to
the Common Stock in the distribution of assets shall be entitled upon
liquidation, the holders of the Common Stock and the holders of any
other stock then outstanding ranking on a parity with the Common Stock
in the distribution of assets upon liquidation shall be entitled to
share proportionately in the distribution of the remaining net assets
of the Corporation.
As used in this Article IV, neither the merger nor consolidation of the
Corporation into or with any other corporation, nor the merger or consolidation
of any other corporation into or with the Corporation, nor any sale, transfer,
lease or other exchange of all or any part of the assets of the Corporation,
shall be deemed to be a liquidation of the Corporation.
Section 4.2. Preferred Stock Provisions. The following provisions apply
to all shares of Preferred Stock of the Corporation.
(a) Authority of the Board of Directors to Issue in Series.
The Preferred Stock may be divided into and issued and reissued from
time to time in one or more series. Subject to the provisions of this
Certificate of Incorporation and of the Law, the Board of Directors is
hereby granted and vested with authority from time to time by the
adoption of a resolution or resolutions to authorize, establish and
designate one or more series of Preferred Stock, and to fix and
determine the voting rights, designations, preferences and the
relative, participating, optional and other special rights and
qualifications, limitations and restrictions of the shares of any
series so established to the full extent now or hereafter permitted by
the Law, including but not limited to the following:
(i) The number of shares of such series, which may
subsequently be increased (except as otherwise provided by the
resolution or resolutions of the Board of Directors providing
for the issue of such series) or decreased (to a number not
less than the number of shares then outstanding) by resolution
or resolutions of the Board of Directors, and the distinctive
designation thereof;
(ii) The rate or amount of dividends and dividend
rights, if any, of such series, the preferences, if any, over
any other class or series of stock, or of any other class or
series of stock over such series, as to dividends, the extent,
if any, to which shares of such series shall be entitled to
participate in dividends on a parity with shares of any other
series or class of stock, whether dividends on shares of such
series shall be fully, partially or conditionally cumulative,
or a combination thereof, and any limitations, restrictions or
conditions on the payment of such dividends;
(iii) The rate or amount and rights, if any, of such
series, and the preferences, if any, over any other class or
series of stock, or of any other class or series of stock over
such series, in the event of any liquidation and the extent,
if any, to which shares of any such series shall be entitled
to participate in such event on a parity with shares of any
other series or class of stock;
(iv) The time or times during which, the price or
prices and rate or rates at which, and the terms and
conditions, including any adjustments, on which, the shares of
such series may be redeemed;
(v) The terms of any purchase, retirement or sinking
fund which may be provided for the shares of such series;
(vi) The price or prices or the rate or rates and the
adjustments, if any, upon which the shares of such class or
series shall be convertible into or exchangeable for, at the
option of either the holder or the Corporation or upon the
happening of a specified event, shares of any other class or
classes or any other series of the same or any other class or
classes of stock of the Corporation;
(vii) The voting powers, if any, of such series in
addition to the voting powers provided by the Law.
(b) Limitation on Dividends. No holders of shares of any
series of the Preferred Stock shall be entitled to receive any
dividends thereon other than those specifically provided for by the
Certificate of Incorporation or the resolution or resolutions of the
Board of Directors providing for the issue of such series of Preferred
Stock, nor shall any accumulated dividends on the Preferred Stock bear
any interest.
(c) Limitation on Liquidation Distributions. In the event of
any liquidation the holders of shares of each series of the then
outstanding Preferred Stock shall be entitled to receive only such
amount as shall have been fixed for such purpose by the Certificate of
Incorporation or in the resolution or resolutions of the Board of
Directors establishing the respective series of each class of Preferred
Stock, together with a sum equal to the amount of all accumulated and
unpaid dividends thereon at the dividend amount or rate fixed therefor
in such resolution or resolutions.
(d) Voting Rights. Each holder of shares of each series of
Preferred Stock shall be entitled to only such voting rights as shall
be established by the Certificate of Incorporation or the resolution or
resolutions of the Board of Directors providing for the issuance of
such series of Preferred Stock.
ARTICLE V
Election of Directors
---------------------
Election of directors need not be by written ballot unless the By-laws
of the Corporation shall so provide.
ARTICLE VI
Amendment of By-laws
The by-laws of the Corporation may from time to time be altered,
amended, or repealed, or new by-laws adopted, by the Board of Directors of the
Corporation subject to the right of stockholders to adopt, alter, amend or
repeal the by-laws as provided by law subject to any limitation contained in the
by-laws of the Corporation.
ARTICLE VII
Nomination of Directors
-----------------------
No person (other than a person nominated or recommended for nomination
by the Board of Directors or any nominating committee thereof or any person to
be elected by the holders of any one or more classes or series of Preferred
Stock of the Corporation or any other classes or series of stock of the
Corporation other than the Common Stock which may be outstanding at some time,
voting separately as a class or classes) shall be eligible for election as a
director at any annual or special meeting of stockholders unless a written
notice regarding such person's nomination, together with the written consent of
such person to serve as a director, is received from a stockholder of record by
the Secretary of the Corporation not later than (i) with respect to an election
to be held at an annual meeting of stockholders, ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of stockholders, or
(ii) with respect to an election to be held at a special meeting of
stockholders, the close of business on the tenth day following the date on which
notice of such meeting is first given to stockholders. Each such notice shall
set forth (i) the name, age, business address and residence address of each
nominee proposed in such notice, (ii) the principal occupation of employment of
each such nominee, (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee, and (iv) such other information in
respect of such nominee as would be required by the federal securities laws and
the rules and regulations promulgated thereunder in respect of an individual
nominated as a director of the Corporation and for whom proxies are solicited by
the Board of Directors.
The Chairman of any meeting of stockholders may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
ARTICLE VIII
Limitation of Director Liability; Indemnification
-------------------------------------------------
Section 8.1. Limitation of Director Liability. A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of his or her fiduciary duty as a director, except
for liability (i) for any breach of such 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 knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, as the same exists or may
hereinafter be amended, or (iv) for any transaction from which the director
derived an improper personal benefit. In addition to the circumstances in which
a director of the Corporation is not personally liable as set forth in the
preceding sentence, if the Delaware General Corporation Law is amended after
approval of this Article by the stockholders to authorize corporate action
further eliminating or limiting the liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended. Any
repeal or modification of the foregoing Section 8.1 by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
Section 8.2. Indemnification of Directors. Officers, Employees and
Agents.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
he or she or a person of whom he or she is the legal representative, is
or was or has agreed to become a director or officer of the Corporation
or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while
serving or having agreed to serve as a director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended, (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment) against all expense,
liability and loss (including without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue
as to a person who has ceased to serve in the capacity which initially
entitled such person to indemnity hereunder and shall inure to the
benefit of his or her heirs, executors and administrators; provided,
however, that the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 8.2 shall be a contract right
and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred by a
current, former or proposed director or officer in his or her capacity
as a director or officer or proposed director or officer (and not in
any other capacity in which service was or is or has been agreed to be
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the
final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such indemnified
person, to repay all amounts so advanced if it shall ultimately be
determined that such indemnified person is not entitled to be
indemnified under this Section 8.2 or otherwise.
(b) Indemnification of Employees and Agents. The Corporation
may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation, individually or as a group,
with the same scope and effect as the indemnification of directors and
officers provided for in this Section.
(c) Right of Claimant to Bring Suit. If a written claim
received by the Corporation from or on behalf of an indemnified party
under this Section 8.2 is not paid in full by the Corporation within
ninety days after such receipt, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any
is required, has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable
standard of conduct set forth in the Delaware General Corporation Law,
nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not
met the applicable standard of conduct.
(d) Nonexclusivity of Rights. The right to indemnification and
the advancement and payment of expenses conferred in this Article VII
shall not be exclusive of any other right which any person may have or
hereafter acquire under any law (common or statutory), provision of the
Certificate of Incorporation of the Corporation, bylaw, agreement, vote
of stockholders or disinterested directors or otherwise.
(e) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any person who is or was serving as 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 expense, liability or loss,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law.
(f) Savings Clause. If this Section 8.2 or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify and
hold harmless each director and officer of the Corporation, as to
costs, charges and expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative
to the full extent permitted by any applicable portion of this Section
8.2 that shall not have been invalidated and to the fullest extent
permitted by applicable law.
(g) Definitions. For purposes of this Section, reference to
the "Corporation" shall include, in addition to the Corporation, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger prior to (or, in the case of an
entity specifically designated in a resolution of the Board of
Directors, after) the adoption hereof and which, if its separate
existence had continued, would have had the power and authority to
indemnify its directors, officers and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of
this Section with respect to the resulting or surviving corporation as
he would have with respect to such constituent corporation if its
separate existence had continued.
IN WITNESS WHEREOF, Blue Dolphin Energy Company has caused this Amended
and Restated Certificate of Incorporation to be executed by Ivar Siem, its
Chairman and Chief Executive Officer and by Thomas W. Heath, its Secretary on
this 27th day of May, 2009.
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Ivar Siem, Chairman and Chief
Executive Officer
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Thomas W. Heath, Secretary