EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VICEROY ACQUISITION CORPORATION
Pursuant to Section 102
of the Delaware General Corporation Law
VICEROY ACQUISITION CORPORATION, a corporation existing under the laws of
the State of Delaware (the "Corporation"), by its Executive Vice President and
Secretary, hereby certifies as follows:
1. The name of the Corporation is "Viceroy Acquisition Corporation".
2. The Corporation's original Certificate of Incorporation was filed in
the office of the Secretary of the State of Delaware on August 12th,
2005.
3. This Amended and Restated Certificate of Incorporation restates,
integrates and amends the Certificate of Incorporation.
4. The Corporation has not received payment for any of its stock.
5. This Amended and Restated Certificate of Incorporation was duly
adopted by unanimous written consent of the directors of the
Corporation in accordance with the applicable provisions of Sections
241 and 245 of the Delaware General Corporation Law.
ARTICLE ONE - NAME OF THE CORPORATION
The name of the corporation is Viceroy Acquisition Corporation (the
"Corporation").
ARTICLE TWO - REGISTERED AGENT
The name and address of the Corporation's initial registered agent in
Delaware is:
The Corporation Trust Company
1209 Orange Street
Corporation Trust Center
Wilmington, Delaware 19801
ARTICLE THREE - PURPOSE OF THE CORPORATION
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the Act.
ARTICLE FOUR - AUTHORIZED CAPITAL STOCK
The total number of shares of all classes of stock which the Corporation
has the authority to issue is 65,000,000 shares consisting of: (i) 5,000,000
shares of a class designated as preferred stock, par value $0.0001 per share
("Preferred Stock"); and (ii) 60,000,000 shares of a class designated as common
stock, par value $0.0001 per share ("Common Stock"). The designations,
preferences, rights, qualifications, limitations and restrictions of the
Preferred Stock and the Common Stock are as follows.
A. Provisions Relating to the Preferred Stock.
1. Classes or Series. The Preferred Stock may be issued from time
to time in one or more classes or series. The shares of each class or series are
to have such designations and powers, preferences, rights, qualifications,
limitations and restrictions as are stated and expressed herein and in the
resolution or resolutions providing for the issuance of such class or series
adopted by the board of directors of the Corporation (the "Board of Directors")
as hereinafter prescribed.
2. Authority Vested in the Board of Directors to Authorize the
Issuance of Preferred Stock. Authority is hereby expressly granted to and vested
in the Board of Directors to authorize the issuance of the Preferred Stock from
time to time in one or more classes or series, and with respect to each class or
series of the Preferred Stock, to fix and state by the resolution or resolutions
of the Board of Directors from time to time adopted providing for the issuance
thereof the following:
(a) whether the class or series is to have voting rights,
full, special or limited, and whether such class or series is to be entitled to
vote as a separate class either alone or together with the holders of one or
more other classes or series of stock of the Corporation;
(b) the number of shares to constitute the class or series
and the designations thereof;
(c) the preferences and relative, participating, optional or
other special rights, if any, and the qualifications, limitations or
restrictions thereof, if any, with respect to any class or series;
(d) whether the shares of any class or series are redeemable
at the option of the Corporation or the holders thereof or upon the happening of
any specified event and, if redeemable, the redemption price or prices (which
may be payable in the form of cash, notes, securities or other property), and
the time or times at which, and the terms and conditions upon which, such shares
are redeemable and the manner of redemption;
(e) whether the shares of a class or series are subject to
the operation of retirement or sinking funds to be applied to the purchase or
redemption of such shares for retirement and, if such retirement or sinking fund
or funds are to be established, the annual amount thereof and the terms and
provisions relative to the operation thereof;
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(f) the dividend rate, whether dividends are payable in
cash, stock of the Corporation or other property, the conditions upon which and
the times when such dividends are payable, the preference to or the relation to
the payment of dividends payable on any other class or classes or series of
stock of the Corporation, whether or not such dividends are cumulative or
noncumulative and, if cumulative, the date or dates from which such dividends
accumulate;
(g) the preferences, if any, and the amounts thereof which
the holders of any class or series thereof will be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets
of, the Corporation;
(h) whether the shares of any class or series, at the option
of the Corporation or the holders thereof or upon the happening of any specified
event, are convertible into or exchangeable for the shares of any other class or
classes or of any other series of the same or any other class or classes of
stock, securities or other property of the Corporation and the conversion price
or prices or ratio or the rate or rates at which such exchange may be made, with
such adjustments, if any, as may be stated and expressed or provided for in such
resolution or resolutions; and
(i) such other special rights and protective provisions with
respect to any class or series as may to the Board of Directors seem advisable.
3. Variances in Classes or Series; Increases and Decreases to
Classes and Series. The shares of each class or series of the Preferred Stock
may vary from the shares of any other class or series thereof in any or all of
the foregoing respects. The Board of Directors may increase the number of shares
of the Preferred Stock designated for any existing class or series by a
resolution adding to such class or series authorized and unissued shares of the
Preferred Stock not designated for any other class or series. The Board of
Directors may decrease the number of shares of the Preferred Stock designated
for any existing class or series by a resolution subtracting from such class or
series, and the shares so subtracted will become authorized, unissued and
undesignated shares of the Preferred Stock.
B. Provisions Relating to the Common Stock.
1. General. Except as otherwise provided herein, or as otherwise
provided by applicable law, all shares of Common Stock have identical rights and
privileges in every respect. Except as specifically provided by the Board of
Directors in a resolution providing for any Preferred Stock, or series thereof,
in no event will shares of Common Stock have preferences over shares of
Preferred Stock with respect to payment of dividends or distribution of assets
upon liquidation of the Corporation.
2. Voting. Except as otherwise provided herein, the Common Stock
will be fully voting stock entitled to one vote per share with respect to all
matters to be voted on by the Corporation's shareholders. Except as expressly
required under the Act and except as otherwise provided herein, the Common Stock
will vote as a single class with respect to all matters to be voted on by the
Corporation's shareholders. Except as otherwise required by law or as otherwise
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provided by the Board of Directors with respect to any Preferred Stock, the
holders of the Common Stock exclusively possess all voting power with respect to
the Corporation.
3. Liquidation. Except as otherwise provided herein, a holder of
the Common Stock will share ratably with the other holders of Common Stock on a
share-for-share basis in all distributions of assets pursuant to any voluntary
or involuntary liquidation, dissolution or winding-up of the Corporation.
C. General.
1. Consideration. Subject to the foregoing provisions of this
Certificate of Incorporation, the Corporation may issue shares of its Preferred
Stock and Common Stock from time to time for such consideration (not less than
the par value thereof) as may be fixed by the Board of Directors, which is
expressly authorized to fix the same in its absolute and uncontrolled discretion
subject to the foregoing conditions. Shares so issued for which the
consideration has been paid or delivered to the Corporation will be deemed fully
paid stock and will not be liable to any further call or assessment thereon, and
the holders of such shares will not be liable for any further payments in
respect of such shares.
2. Rights and Options. The Corporation has the authority to
create and issue rights, warrants and options entitling the holders thereof to
purchase shares of the Corporation's capital stock of any class or series or
other securities of the Corporation, and such rights, warrants and options will
be evidenced by instrument(s) approved by the Board of Directors. The Board of
Directors is empowered to set the exercise price, duration, times for exercise
and other terms of such rights, warrants or options; provided, however, that the
consideration to be received for any shares of capital stock subject thereto may
not be less than the par value thereof.
ARTICLE FIVE - BUSINESS COMBINATIONS
The following paragraphs (A) through (D) apply during the period
commencing upon the filing of this Certificate of Incorporation and terminating
upon the consummation of any Business Combination (as defined below) and may not
be amended during the Target Business Acquisition Period (as defined below).
"Business Combination" means the acquisition by the Corporation, whether by
merger, capital stock exchange, asset or stock acquisition or other similar type
of transaction, of an operating business in the petroleum or oil and gas
industries ("Target Business"), and specifically includes the exploration,
development, extraction, production, refining, storage, transportation and/or
marketing of petroleum, petroleum products and natural gas. "Target Business
Acquisition Period" means the period from the effectiveness of the registration
statement filed in connection with the Corporation's initial public offering
("IPO") up to and including the first to occur of: (i) a Business Combination;
or (ii) the Termination Date (as defined below).
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A. Shareholder Approval.
Prior to the consummation of any Business Combination, the Corporation
must submit such Business Combination to its stockholders for approval
regardless of whether the Business Combination is of a type which normally would
require such stockholder approval under the Act. In the event that a majority of
the IPO Shares (as defined below) cast at the meeting to approve the Business
Combination are voted for the approval of such Business Combination, the
Corporation will be authorized to consummate the Business Combination; provided
that the Corporation may not consummate any Business Combination if the holders
of 20% or more of the IPO Shares exercise their conversion rights described in
paragraph B below.
B. Redemption Rights.
In the event that a Business Combination is approved in accordance with
paragraph A above and is consummated by the Corporation, any stockholder of the
Corporation holding shares of Common Stock issued in the IPO ("IPO Shares") who
voted against the Business Combination may, contemporaneously with such vote,
demand that the Corporation convert his IPO Shares into cash. If so demanded,
the Corporation will, promptly after consummation of the Business Combination,
convert such shares into cash at a per share conversion price equal to the
quotient determined by dividing (i) the amount in the Trust Fund (as defined
below), inclusive of any interest or other earnings thereon, calculated as of
two business days prior to the consummation of the Business Combination, by (ii)
the total number of IPO Shares. "Trust Fund" means the trust account established
by the Corporation at the consummation of its IPO and into which a certain
amount of the net proceeds of the IPO is deposited.
C. Failure to Consummate a Business Combination.
In the event that the Corporation does not consummate a Business
Combination by the later of (i) 18 months after the consummation of the IPO or
(ii) 24 months after the consummation of the IPO in the event that either a
letter of intent, an agreement in principle or a definitive agreement to
complete a Business Combination was executed but was not consummated within such
18-month period (such later date being referred to as the "Termination Date"),
the officers of the Corporation will take all action necessary to dissolve and
liquidate the Corporation as soon as reasonably practicable. In the event that
the Corporation is so dissolved and liquidated, only the holders of IPO Shares
are entitled to receive liquidating distributions and the Corporation will pay
no liquidating distributions with respect to any other shares of capital stock
of the Corporation.
D. Trust Fund.
A holder of IPO Shares will be entitled to receive distributions from the
Trust Fund only in the event of a liquidation of the Corporation or in the event
he demands conversion of his shares in accordance with paragraph B above. In no
other circumstances will a holder of IPO Shares have any right or interest of
any kind in or to the Trust Fund.
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ARTICLE SIX - PREEMPTIVE RIGHTS
The shareholders of the Corporation have no preemptive rights to acquire
unissued shares of the Corporation, or securities of the Corporation convertible
into or carrying a right to subscribe to or acquire shares of stock of the
Corporation.
ARTICLE SEVEN - INCORPORATOR
The name and mailing address of the incorporator of the Corporation are as
follows:
Douglas D. Hommert
8235 Forsyth Avenue, 4th Floor
Clayton, Missouri 63105
ARTICLE EIGHT - BOARD OF DIRECTORS
The following provisions are inserted for the management of the business
and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders.
A. Number of Directors.
The number of directors initially to constitute the Board of Directors is
three. Thereafter, the number of directors of the Corporation may be changed:
(i) by amendment to this Certificate of Incorporation; or (ii) as set forth in
the Corporation's bylaws.
B. Classes of Directors.
The Board of Directors are divided into three classes: Class A, Class B
and Class C. The number of directors in each class are to be nearly equal as
possible. At the first election of directors by the incorporator, the
incorporator will elect a Class C director for a term expiring at the
Corporation's third annual meeting of the Corporation's stockholders (the
"Annual Meeting of Stockholders"). The Class C director will then appoint
additional Class A, Class B and Class C directors as necessary. The directors in
Class A will be elected for a term expiring at the first Annual Meeting of
Stockholders, the directors in Class B will be elected for a term expiring at
the second Annual Meeting of Stockholders and the directors in Class C will be
elected for a term expiring at the third Annual Meeting of Stockholders.
Commencing at the first Annual Meeting of Stockholders, and at each Annual
Meeting of Stockholders thereafter, directors elected to succeed those directors
whose terms expire will be elected for a term of office to expire at the third
succeeding Annual Meeting of Stockholders after their election. Except as the
Act may otherwise require, in the interim between Annual Meetings of
Stockholders or special meetings of the Corporation's stockholders called for
the election of directors and/or the removal of one or more directors and the
filling of any vacancy in that connection, newly created directorships and any
vacancies in the Board of Directors, including unfilled vacancies resulting from
the removal of directors for cause, may be filled by the vote of a majority of
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the remaining directors then in office, although less than a quorum (as defined
in the Corporation's bylaws), or by the sole remaining director. All directors
hold office until the expiration of their respective terms of office and until
their successors have been elected and qualified. A director elected to fill a
vacancy resulting from the death, resignation or removal of a director serves
for the remainder of the full term of the director whose death, resignation or
removal has created such vacancy and until his successor has been elected and
qualified.
C. Ballots Not Required.
Election of directors need not be by ballot unless the bylaws of the
Corporation so provide.
D. Bylaws of the Corporation.
The Board of Directors has the power, without the assent or vote of the
Corporation's stockholders, to make, alter, amend, change, add to or repeal the
bylaws of the Corporation as provided in the bylaws of the Corporation.
E. Contracts.
The directors in their discretion may submit any contract or act for
approval or ratification at any Annual Meeting of Stockholders or at any meeting
of the Corporation's stockholders called for the purpose of considering any such
act or contract, and any contract or act that is approved or ratified by the
vote of the holders of a majority of the stock of the Corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) is valid and binding upon the Corporation and upon all the
Corporation's stockholders as though it had been approved or ratified by every
stockholder of the Corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors' interests or for any
other reason.
F. Additional Powers.
In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, of this Certificate of Incorporation and to any bylaws from time to
time made by the stockholders; provided, however, that no bylaw so made may
invalidate any prior act of the directors which would have been valid if such
bylaw had not been made.
ARTICLE NINE - DURATION OF THE CORPORATION
The duration of the Corporation is perpetual.
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ARTICLE TEN - INTERESTED DIRECTORS, OFFICERS AND SHAREHOLDERS
No contract or transaction between the Corporation and one or more of its
directors, officers or shareholders or between the Corporation and any person
(as used herein, "person" means any other natural person, corporation, limited
partnership, general partnership, joint venture, association, company, trust,
joint stock company, bank, trust company, land trust, vehicle trust, business
trust, real estate investment trust, estate, limited liability company, limited
liability partnership, limited liability limited partnership, employee benefit
plan or other organization irrespective of whether it is a legal entity, and any
governmental authority) in which one or more of its directors, officers or
shareholders are directors, officers or shareholder, or have a financial
interest, will be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of
Directors (or committee thereof) which authorizes the contract or transaction,
or solely because his, her or their votes are counted for such purpose, if: (i)
the material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors (or
the committee thereof), and the Board of Directors (or such committee) in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
are less than a quorum; (ii) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known to the
shareholders of the Corporation entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of such shareholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee of the Board of Directors or the shareholders of the Corporation.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee thereof which
authorizes the contract or transaction.
ARTICLE ELEVEN - INDEMNIFICATION
A. Indemnification of Officers and Directors.
The Corporation will indemnify, to the fullest extent permitted under the
Act, any individual who was, is or is threatened to be made a party to a
proceeding by reason of the fact that he or she: (i) is or was a director or
officer of the Corporation; or (ii) while a director or officer of the
Corporation is or was serving at the request of the Corporation as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic person. Such right is a contract
right and, as such, runs to the benefit of any director or officer who is
elected and accepts the position of director or officer of the Corporation or
elects to continue to serve as a director or officer of the Corporation while
this Article Eleven is in effect. Any repeal or amendment of this Article Eleven
may be prospective only and will not limit the rights of any such director or
officer or the obligations of the Corporation with respect to any claim arising
from or related to the services of such director or officer in any of the
foregoing capacities prior to any such repeal or amendment to this Article
Eleven. Such right includes the right to be paid by the Corporation for expenses
incurred in defending any such proceeding in advance of its final disposition to
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the maximum extent permitted under the Act. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the Corporation within
60 days after a written claim has been received by the Corporation, 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
will also be entitled to be paid the expenses of prosecuting such claim. It is a
defense to any such action that such indemnification or advancement of costs of
defense are not permitted under the Act, but the burden of proving such defense
is on the Corporation. Neither the failure of the Corporation (including the
Board of Directors, any committee thereof, independent legal counsel or
shareholders) to have made its determination prior to commencement of such
action that indemnification of, or advancement of costs of defense to, the
claimant is permissible in the circumstances, nor an actual determination by the
Corporation (including the Board of Directors, any committee thereof,
independent legal counsel or shareholders) that such indemnification or
advancement is not permissible, may be a defense to the action or create a
presumption that such indemnification or advancement is not permissible. In the
event of the death of any individual having a right of indemnification under the
foregoing provisions, such right inures to the benefit of his or her heirs,
executors, administrators and personal representatives. The rights conferred
above are not exclusive of any other right which any person may have or
hereafter acquire under any statute, bylaw, resolution of shareholders or
directors, agreement or otherwise.
B. Indemnification of Employees and Agents.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by applicable law.
C. Definition of Proceeding.
As used herein, the term "proceeding" means any: (i) threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative; (ii) appeal in such action, suit
or proceeding; and (iii) inquiry or investigation that could lead to such an
action, suit or proceeding.
ARTICLE TWELVE - LIABILITY OF DIRECTORS
A director of the Corporation will not be personally liable to the
Corporation or its shareholders 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 shareholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law; (iii) for any transaction from which the director derived an
improper personal benefit; or (iv) under ss.174 of the Act. Any repeal or
amendment of this Article Twelve by the shareholders of the Corporation will be
prospective only and will not adversely affect any limitation on the personal
liability of a director of the Corporation arising from an act or omission
occurring prior to the time of such repeal or amendment. In addition to the
circumstances in which a director of the Corporation is not personally liable as
set forth in the foregoing provisions of this Article Twelve, a director will
not be liable to the Corporation or its shareholders to such further extent as
permitted by any law hereinafter enacted, including without limitation any
subsequent amendment to the Act.
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ARTICLE THIRTEEN - COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the 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 the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under ss.291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for the Corporation under ss.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 the Corporation, as the
case may be, to be summoned in such manner as such 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 the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the Corporation as a consequence of such compromise or
arrangement, such compromise or arrangement and such reorganization will, if
sanctioned by the court to which such 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 the Corporation, as the case may be, and also on the
Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by Douglas D. Hommert, its Executive
Vice President and Secretary on August 26, 2005.
/s/ Douglas D. Hommert
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Douglas D. Hommert
Executive Vice President and Secretary
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