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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
EQUITABLE PRODUCTION (GULF) COMPANY
It is hereby certified that:
1. Equitable Production (Gulf) Company (the "Corporation")
filed its original certificate of incorporation of the Corporation with the
Secretary of State of the State of Delaware on September 22, 1999.
2. The provisions of the certificate of incorporation of the
Corporation, as heretofore amended and/or supplemented, are hereby restated and
integrated into the single instrument which is attached hereto as Exhibit A, and
which is entitled Restated Certificate of Incorporation of Equitable Production
(Gulf) Company, without further amendment and without any discrepancy between
the provisions of the certificate of incorporation as heretofore amended and
supplemented and the provisions of the said single instrument hereinafter set
forth.
3. The Board of Directors of the Corporation has duly adopted
this Restated Certificate of Incorporation pursuant to the provisions of Section
245 of the General Corporation Law of the State of Delaware.
Signed on: March 30, 2000
/s/ David L. Porges
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Porges, Executive Vice President
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
EQUITABLE PRODUCTION (GULF) COMPANY
I. NAME
The name of the company is Equitable Production (Gulf) Company.
II. ADDRESS
The address of the Company's registered office in the State of Delaware is 1209
Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its
registered agent at such address is The Corporate Trust Company.
III. PURPOSE
The nature of the business or purpose to be conducted or promoted 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.
IV. SHARES
The total number of shares of stock which the Company shall have authority to
issue is 35 million of which 30 million shares shall be of common stock with a
par value of $0.01 per share and 5 million shall be preferred stock. The Board
of Directors may determine the powers, designations, preferences and relative,
participating, optional or other special rights, including voting rights, and
the qualifications, limitations or restrictions thereof, of each class of
capital stock and of each series within any such class and may increase or
decrease the number of shares within each such class or series; provided,
however, that the Board of Directors may not decrease the number of shares
within a class or series to less than the number of shares within such class or
series that are then issued and may not increase the number of shares within a
series above the total number of authorized shares of the applicable class for
which the powers, designations, preferences and rights have not otherwise been
set forth herein.
V. PERPETUAL EXISTENCE
The Company is to have perpetual existence.
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VI. BYLAWS
In furtherance and not in limitation of the powers conferred by the General
Corporation Law of the State of Delaware, but except as set forth in Section
7.3(b)(v) hereof, the Board of Directors of the Company is expressly authorized
to make, alter, or repeal the Bylaws of the Company.
VII. DIRECTORS
7.1 Election of Directors. Elections of directors need not be by
written ballot except and to the extent provided in the Bylaws of the Company.
7.2 Composition of Board of Directors.
(a) Subject to reduction pursuant to Section 7.2(b) below and
prior to the occurrence of a Qualified Public Offering, the Board of Directors
shall be comprised of nine (9) Directors:
(i) three (3) of whom shall be designated in writing by WEC;
(ii) three (3) of whom shall be designated in writing by EPC;
(iii) one (1) of who shall be the individual who is the then
current chief executive officer of the Company;
(iv) one (1) of whom shall be an Independent Director
designated by WEC; and
(v) one (1) of whom shall be an Independent Director
designated by EPC.
(b) The number of Directors in which WEC and EPC may nominate
pursuant to Sections 7.2(a)(i) and (ii) hereof, respectively, shall be ratably
reduced in the event of Transfer of Shares by the WEC Parties or the EPC
Parties, as the case may be, to any party other than a Permitted Transferee. If
such ratable reduction results in a fractional number of Directors entitled to
be nominated by WEC or EPC, as the case may be, the number of Directors to be so
nominated shall be rounded up to the nearest whole number if such fraction is
equal to or greater than 1/2 and rounded down to the nearest whole number if
such fraction is less than 1/2. For example, assuming that either Party holds 99
shares of Common Stock at the Closing, a subsequent Transfer of shares would
reduce the number of Directors that such Party is entitled to designate as
follows:
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Number of Shares Number of Directors Entitled
Transferred to Designate
0 through 16.5 3
>16.5 and <=49.5 2
>49.5 and <=82.5 1
> 82.5 0
(c) Each of WEC and EPC, respectively, shall have the right (i) to
remove, with or without cause, any Director nominated in accordance with this
Section7.2 by WEC and EPC, respectively, other than the Independent Director
designated by them, and (ii) to designate any replacement for a Director
nominated in accordance with this Section 7.2 by WEC or EPC, respectively, upon
the death, resignation, retirement, disqualification or removal from office of
such Director. The Board of Directors shall duly appoint as a Director each
person so designated to fill a vacancy on the Board of Directors. The right to
remove a Director shall exist only prior to the time that the Board of Directors
is classified.
(d) From and subsequent to the occurrence of a Qualified Public
Offering, the Board of Directors shall be comprised of nine (9) Directors
divided into three classes, with Directors in each class having a three-year
term following a transition period in which the initial Class 1 Directors serve
a one-year term, the initial Class 2 Directors serve a two-year term and the
initial Class 3 Directors serve a three-year term. WEC and EPC shall each have
the right to designate one (1) Director to Class 3, one (1) Director to Class 2
and one (1) Director to Class 1; provided, that:
(i) if either the WEC Parties or the EPC Parties own less
than the lesser of (A) 25% of the Company's then outstanding Common Stock, or
(B) 50% of the Common Stock owned by them on the date of the Shareholders
Agreement, then WEC or EPC, as the case may be, shall have only the right to
designate: (x) one (1) Director to the class of Directors having the then
longest remaining term; and (y) one (1) Director to the class of Directors
having the next longest remaining term; provided that if necessary to put one or
more of a Party's particular designee into a particular class for which such
Party may designate a Director, the Company and the other Party shall cooperate
as necessary to effect such designation; provided further that the right to
change such classes may only be exercised in connection with the reduction in
the number of a Party's Director designee;
(ii) if either the WEC Parties or the EPC Parties own less
than the lesser of (A) 15% of the Company's then outstanding Common Stock, or
(B) 37.5% of the Common Stock owned by them on the date of the Shareholders
Agreement, then WEC or EPC, as the case may be, shall have only the right to
designate one (1) Director to the class of Directors having the then longest
remaining term; provided that if necessary to put a Party's Director designee
into such class, the Company and the other Party shall cooperate as necessary to
effect
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such designation; provided further that the right to change such classes may
only be exercised in connection with the reduction in the number of a Party's
Director designee; and
(iii) if either the WEC Parties or the EPC Parties own less
than the lesser of (A) 5% of the Company's then outstanding Common Stock, or (B)
25% of the Common Stock owned by them on the date of the Shareholders Agreement,
then WEC or EPC, as the case may be, shall not have the right to designate any
Directors.
(e) Prior to the occurrence of a Qualified Public Offering, all
committees of the Board of Directors shall contain an equal number of Directors
designated by each of WEC or EPC (respectively) pursuant to Sections 7.2(a)(i)
and (ii) hereof, unless the committee is comprised entirely of Independent
Directors, in which case all Directors designated by WEC or EPC shall receive
notice of and may attend but not participate in all committee meetings. In the
event that an IPO Committee, an Auction Committee or a Registration Committee
must be formed, such committees shall be comprised of the Director appointed
pursuant to Section 7.2(a)(iii) hereof, one Director appointed by WEC pursuant
to Section 7.2(a)(i) hereof, and one Director appointed by EPC pursuant to
Section 7.2(a)(ii) hereof.
(f) So long as either Party has the right to designate a Director,
the Company will give such Party written notice of each regularly scheduled
meeting of its Board of Directors as far in advance as such notice is required
to be delivered to the Directors (and at least three business days prior to the
date of each special meeting of the Board of Directors), and the Board of
Directors will permit up to two (2) representatives of each such Party to attend
as observers of all meetings of the Board of Directors (including any meetings
of committees thereof); provided that in the case of telephonic meetings
conducted in accordance with the Company's bylaws and applicable law, each such
Party's representatives will be given the opportunity to listen to such
telephonic meetings. Each representative will be entitled to receive all written
materials and other information (including, without limitation, copies of
meeting minutes and press releases) given to Directors in connection with such
meetings at the same time such materials and information are given to the
Directors. If the Board of Directors proposes to take any action by written
consent in lieu of a meeting of the Board of Directors or of any committee
thereof, the Company will give written notice thereof to each such Party who has
the right to designate a director prior to the effective date of such consent
describing in reasonable detail the nature and substance of such action. The
Company will reimburse each Party that has observer rights under this Section
7.2(f) for all reasonable expenses incurred by such Party's representatives in
connection with attending meetings of the Board of Directors and committees
thereof.
(g) Any director may resign at any time upon written notice to the
Company.
7.3 Quorum and Voting.
(a) Except as may be otherwise specifically provided by statute or
the Shareholders Agreement, (i) a majority of the total number of directors
shall constitute a quorum for the transaction of business, and (ii) the vote of
the majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors.
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(b) The Company may take and may permit its Subsidiaries to take
and engage in the following Major Actions only upon receiving Supermajority
Approval:
(i) Annual Budget. The adoption, amendment, restatement,
substitution or modification, or deviation from, the operating and capital
budgets of the Company for each fiscal year, (except any amendment, restatement,
substitution or modification when the economic effect to the Company of any such
action (or set of related actions) is a change of 10% or less), and if any
budget is not so approved for any fiscal year, the Company shall take only such
actions that are either approved by Supermajority Approval or are consistent
with, and in furtherance of, the budget for the prior fiscal year and the
actions authorized or contemplated therein or necessary to duly perform the
obligations and commitments of the Company.
(ii) Election and Removal of Officers. The election or
appointment of any officer of the Company or the removal of any officer from
office with or without cause or the alteration of any of their duties.
(iii) Management Compensation. The approval and/or adoption
of (i) the annual base salaries of the officers of the Company, (ii) the annual
incentive programs for and awards (including cash incentives, stock options and
restricted stock, if any) payable to or which may be earned under the Company's
short-term and long-term incentive plans by officers of the Company, (iii) the
short-term and long-term incentive plans (stock-based or otherwise) for officers
of the Company, and all amendments thereto, and (iv) employment agreements,
severance plans, retirement or pension plans and other benefit plans (other than
welfare plans applicable to all salaried employees) for officers of the Company,
and all amendments thereto.
(iv) Indebtedness. With respect to Indebtedness, (x) the
incurrence of Indebtedness for borrowed money if the aggregate amount of all
Indebtedness of the Company and its Subsidiaries outstanding after such
incurrence would be in excess of an amount that shall be established by
resolution of the Board of Directors (approved by Supermajority Approval) from
time to time, or (y) the material amendment of the agreements evidencing any
such Indebtedness.
(v) Charter Documents. The amendment, modification or repeal
of any provision of the Certificate of Incorporation or Bylaws of the Company.
(vi) Board Committees. Subject to Section 7.2(e), the
establishment of any committee of the Board of Directors and the appointment of
Directors to serve thereon, and any change in the authority or duties of any
committee.
(vii) Accounting Matters. The appointment or termination of
the Company's independent auditors and any change in the accounting principles
used by the Company or any Subsidiary, except to the extent such changes are
required by GAAP.
(viii) Other Activities. The Company and its Subsidiaries
conducting or engaging in any business or activity that is not related or
incidental to, consistent with, or in
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furtherance of the exploration, acquisition or development of oil and natural
gas properties and the production and sale of oil and natural gas.
(ix) Issuance of Capital Stock. The authorization, sale
and/or issuance by the Company of any of its capital stock or other debt or
equity securities, whether in a private or public offering, including an initial
public offering or a Qualified Public Offering, or the grant, sale or issuance
of any options, warrants or other rights to acquire capital stock of the
Company.
(x) Acquisitions. Any acquisition of assets, business,
operations or securities (other than treasury bills and other obligations fully
insured by the United States of America) by the Company or any of its
Subsidiaries by merger or otherwise (whether in one transaction or a series of
related transactions) if expenditures on any such transaction (or series of
related transactions) would exceed an amount that shall be established by
resolution of the Board of Directors (approved by Supermajority Approval) from
time to time
(xi) Sale Transactions. Any sale of assets or transfer to a
third party by sale of assets, merger or otherwise by the Company or any of its
Subsidiaries (in one transaction or a series of related transactions) of any
Subsidiary of the Company or the assets or business of the Company or a
Subsidiary thereof which involves more than an amount, established by resolution
of the Board of Directors (approved by Supermajority Approval) from time to
time, of the total assets of the Company and its Subsidiaries taken as a whole,
including a sale of the Company effected by means of a sale of Common Stock (but
not including a sale transaction pursuant to Section 3.6 of the Shareholders
Agreement), but excluding, however, dispositions of assets in the ordinary
course of business (including, but not limited to, oil and gas production).
(xii) Dividends and Distributions. The declaration of any
dividend or the making of any other distribution with respect to, or the
redemption, repurchase or other acquisition of, any class of equity securities
of the Company.
(xiii) Relocation of Office. The relocation of the Company's
principal executive offices from the Denver, Colorado metropolitan area, where
they initially will be located.
Following a Qualified Public Offering, all of the foregoing actions shall
require only the approval specified in Section 7.3(a); provided, that the Major
Actions described in Sections 7.3(b)(x) and (xi) shall require the approval of
not less than two-thirds (2/3) of all the members of the Board of Directors so
long as each of WEC and EPC continue to have the right to designate at least two
(2) Directors.
VIII. DIRECTOR LIABILITY
A director of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director for
any act or omission; provided, however, that the foregoing shall not eliminate
or limit the liability of a director (a) for any breach of the director's duty
or loyalty to the Company or its stockholders, (b) for any act or omission not
in good faith or which involves intentional misconduct or a knowing violation of
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law, (c) under Section 174 of the General Corporation law of the State of
Delaware, or (d) for any transaction from which the director derived an improper
personal benefit. Any repeal or modification of this article by the stockholders
of the Company shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Company existing at
the time of such repeal or modification.
IX. SELF-INTERESTED TRANSACTIONS
The consummation, amendment, restatement, substitution or modification of any
contract, agreement, transaction or other arrangement between the Company or any
Subsidiary of the Company and either WEC or EPC, or any Affiliate of WEC or EPC
(a "Self-Interested Transaction") shall require, except when the economic effect
to the Company of any such action (or set of related actions) is $50,000 or
less, the affirmative vote of a majority of the Disinterested Directors present
at a duly called and noticed meeting at which a quorum is present.
X. CONFLICT
Notwithstanding anything herein to the contrary, in the event of a conflict
between the provisions of this Restated Certificate of Incorporation and the
Shareholders Agreement, the Shareholders Agreement shall prevail.
XI. DEFINITIONS
"Affiliate": shall have the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Exchange Act.
"Auction Committee": a committee of the Board of Directors established
for the purpose of effecting a controlled auction of the Company in accordance
with the Shareholders Agreement.
"Board of Directors": the board of directors of the Company.
"Capital Lease": a lease which shall have been, or should be, in
accordance with GAAP, recorded as a capital lease.
"Closing": shall mean the closing of the merger contemplated by the
Agreement and Plan of Merger dated as of March 9, 2000 by and among Westport Oil
And Gas Company, Inc., WEC, EPC, the Company and EPGC Merger Sub Corporation.
"Commission": the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
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"Common Stock": the common stock of the Company now or hereafter
authorized to be issued.
"Company": Equitable Production (Gulf) Company.
"Covered Shareholders": the parties to the Covered Shareholders
Agreements.
"Covered Shareholders Agreements": the agreements between WEC and any
Permitted Transferees of WEC pursuant to which the Permitted Transferees appoint
WEC as its representative and grant WEC a proxy to vote their Shares.
"Director": a member of the Board of Directors.
"Disinterested Directors" shall include all Directors not designated by
the WEC Party or the EPC Party which is or whose Affiliate is a party to the
Self-Interested Transaction (other than any Independent Directors).
"EPC": Equitable Production Company.
"EPC Parties": EPC and its Permitted Transferees.
"Exchange Act": the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder, all as the same shall be
in effect at the time.
"GAAP": generally accepted accounting principles.
"Indebtedness": means (i) indebtedness for borrowed money or for the
deferred purchase price of property or services in respect of which the Company
is liable, contingently or otherwise, as obligor, guarantor, or otherwise, or in
respect of which the Company otherwise assures a creditor against loss, (ii)
obligations evidenced by bonds, debentures, notes or other similar instruments,
(iii) obligations, contingent or otherwise, under acceptance, letter of credit
or similar facilities, (iv) obligations as lessee under Capital Leases, (v)
obligations under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through (iv) above.
"Independent Director": an individual (i) who is not a director,
officer, employee or Affiliate of the Company, WEC or EPC, or any of their
respective Affiliates, (ii) who is not a former director, officer or employee of
the Company, WEC or EPC, or any of their respective Affiliates, (iii) who has
not had and who is not a director, officer, 10% or more equity owner or
Affiliate of any Person that has had a direct or indirect interest in any
transaction in the preceding 24 months with the Company, WEC or EPC, or any of
their respective Affiliates, and (iv) who does not represent WEC or EPC, or any
of their respective Affiliates, and any Director appointed pursuant to Section
7.2(a)(iv) and (v) shall be required to certify in writing to this effect upon
request.
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"IPO Committee": a committee of the Board of Directors established for
the purpose of effecting a Qualified Public Offering in accordance with the
Shareholders Agreement.
"Major Actions": those actions described in Sections 7.3(b)(i) through
(xiii).
"Party": EPC or WEC.
"Permitted Transferees": in the case of the WEC Parties: (A) WEC, any
spouse, issue, parents or relatives of any Covered Shareholder, or (i) trusts
for the benefit of any of such Persons, (ii) entities controlling or controlled
by any of such Persons and (iii) in the event of the death of any such
individual Person, heirs or testamentary legatees of such Person, in each case
to whom a WEC Party has transferred its Shares and who has entered into a
Covered Shareholders Agreement, and (B) any Subsidiary or Affiliate of WEC to
which a WEC Party has transferred its Shares and which has agreed in writing to
be bound by the terms of this Agreement; and in the case of the EPC Parties: any
Subsidiary or Affiliate of EPC to which an EPC Party has transferred its Shares
and which has agreed in writing to be bound by the terms of the Shareholders
Agreement.
"Person": any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or other entity, whether
acting in an individual, fiduciary or other capacity.
"Qualified Public Offering": (i) the sale of Common Stock in an
underwritten primary public offering registered under the Securities Act (A)
resulting in net cash proceeds to the Company in such offering in an amount not
less than $100,000,000 or (B) of at least 25% of the outstanding Common Stock
(calculated on a post offering basis), and in each case after such offering the
Common Stock sold in such offering is subject to being traded on the Nasdaq
National Market or the New York Stock Exchange or (ii) the merger, consolidation
or any similar business combination of the Company with another entity, as a
result of which (A) the Common Stock becomes publicly traded or is exchanged for
or converted into shares of the other entity, which shares are traded on the
Nasdaq National Market or the New York Stock Exchange and (B) the resulting
entity then or thereafter has an equity market capitalization of at least $150
million, of which at least $100 million of the entity's voting equity is held by
Persons who are not Affiliates of such entity.
"Registration Committee": a committee of the Board of Directors
established for the purpose of effecting a registration of Common Stock in
accordance with the Shareholders Agreement.
"Self-Interested Transaction": as defined in Section IX.
"Shareholders Agreement": the Shareholders Agreement dated the date of
Closing by and among the Company, WEC and EPC.
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"Shares": shares of Common Stock.
"Subsidiary": of any Person shall mean any corporation or other legal
entity of which such Person (either alone or through or together with any other
Subsidiary) owns, directly or indirectly, 50% or more of the stock or other
equity interests, the holders of which are generally entitled to vote for the
election of the board of directors or other governing body of such corporation
or other legal entity.
"Supermajority Approval": approval by action of a majority of the Board
of Directors that includes the following:
(a) at least two (2) Directors designated by WEC pursuant to Section
7.2(a)(i), provided that (A) in the event that WEC can designate only one (1)
Director pursuant to Section7.2(a)(i), then that one (1) Director, and (B) in
the event that WEC cannot designate any Directors pursuant to Section 7.2(a)(i),
then this subsection (a) shall not apply; and
(b) at least two (2) Directors designated by EPC pursuant to Section
7.2(a)(ii), provided that (A) in the event that EPC can designate only one (1)
Director pursuant to Section 7.2(a)(ii), then that one (1) Director, and (B) in
the event that EPC cannot designate any Directors pursuant to Section7.2(a)(ii),
then this subsection (b) shall not apply.
"Transfer": a sale, transfer, assignment, pledge or other disposition.
"WEC": Westport Energy Company.
"WEC Parties" WEC, the Covered Shareholders and their Permitted
Transferees.
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