EXHIBIT 4.6
CERTIFICATE OF INCORPORATION
OF
CHENIERE LNG, INC.
FIRST: The name of the corporation is Cheniere LNG, Inc.
SECOND: The address of its registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle 19801. The name
of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes 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 (the "General
Corporation Law").
FOURTH: The total number of shares of capital stock of the corporation shall be
One Thousand (1,000) shares of Common Stock of the par value of One Cent ($0.01)
per share.
The following is a statement fixing certain of the designations,
preferences and relative, participating, optional or other special
rights of the Common Stock of the corporation, and the qualifications,
limitations or restrictions thereof:
I. Common Stock
1. Dividends. The Board of Directors may, in its discretion, out
of funds legally available for the payment of dividends and at such
times and in such manner as determined by the Board of Directors,
declare and pay dividends on the Common Stock of the corporation.
2. Liquidation. In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or involuntary (each, a
"Liquidation Event"), after payment or provision for payment of the
debts and other liabilities of the corporation, the holders of the
Common Stock upon a Liquidation Event shall be entitled to receive
ratably any or all assets remaining to be paid or distributed.
3. Voting Rights. The holders of the Common Stock of the
corporation shall be entitled to one vote for each share of such stock
held by them.
II. No Preemptive Rights
No holder of shares of stock of the corporation shall have any
preemptive or other rights, except as such rights are expressly provided
by contract, to purchase or subscribe for or receive any shares of any
class, or series thereof, of stock of the corporation, whether now or
hereafter authorized, or any warrants, options, bonds, debentures or
other securities convertible into, exchangeable for or carrying any
right to purchase any shares of any class, or series thereof, of stock;
but such additional shares of stock and such warrants, options, bonds,
debentures or other securities convertible into, exchangeable for or
carrying any right to purchase any shares of any class, or series
thereof, of stock may
be issued or disposed of by the Board of Directors to such persons, and
on such terms and for such lawful consideration, as in its discretion it
shall deem advisable or as to which the corporation shall have by
binding contract agreed.
FIFTH: The name and mailing address of the directors, who shall serve until the
first annual meeting of stockholders or until successors are elected and
qualified, are as follows:
Names Address
----- -------
Charif Souki 333 Clay Street,
Suite 3400
Houston, Texas 77002
The number of directors of the corporation shall be as specified in, or
determined in the manner provided in, the bylaws. Election of directors need not
be by written ballot.
SIXTH: To the fullest extent permitted by the General Corporation Law as same
exists or may hereafter be amended, a director of the corporation shall not be
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director.
SEVENTH: The corporation shall have the right, subject to any express provisions
or restrictions contained in the certificate of incorporation or bylaws of the
corporation, from time to time, to amend the certificate of incorporation or any
provision thereof in any manner now or hereafter provided by law, and all rights
and powers of any kind conferred upon a director or stockholder of the
corporation by the certificate of incorporation or any amendment thereof are
subject to such right of the corporation.
EIGHTH: The corporation hereby elects not to be subject to the provisions of
Section 203 of the General Corporation Law of the State of Delaware.
NINTH: The name of the incorporator is Don Turkleson, and his mailing address is
333 Clay Street, Suite 3400, Houston, Texas 77002.
I, the undersigned, being the incorporator herein before named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring that this is my
act and deed and that the facts herein stated are true, and accordingly have
hereunto set my hand this 12th day of August, 2002.
-------------------------------
Don Turkleson, Incorporator
2
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
CXY CORPORATION,
a Texas Corporation
WITH AND INTO
CHENIERE LNG, INC.
A Delaware Corporation
August 13, 2002
(PURSUANT TO SECTION 253 OF THE DGCL)
CXY Corporation, a Texas corporation (the "Corporation"), does hereby
certify that:
1. The Corporation is incorporated pursuant to the Texas Business
Corporation Act (the "TBCA").
2. The Corporation owns 100% of the issued and outstanding shares of
each class of capital stock of Cheniere LNG, Inc., a Delaware corporation.
3. Cheniere LNG, Inc. ("Cheniere LNG") is incorporated pursuant to the
General Corporation Law of the State of Delaware (the "DGCL").
4. The Corporation's Board of Directors (the "Board of Directors"), by
the following resolutions, duly adopted by unanimous written consent, dated as
of the 13th day of August, 2002, authorized and approved the merger (the
"Merger") of the Corporation with and into, Cheniere LNG with Cheniere LNG
surviving the Merger, on the terms and conditions set forth in such resolutions:
RESOLVED, that the Board of Directors deems it to be advisable
and in the best interests of the Corporation that the Corporation merge
(the "Merger"), pursuant to Section 253 of the General Corporation Law
of the State of Delaware (the "DGCL") and Article 5.16 of the TBCA and
under the terms and conditions set forth in that certain Agreement and
Plan of Merger (the "Plan of Merger"), dated as of August 13, 2002, by
and between the Corporation and Cheniere LNG, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Corporation ("Cheniere
LNG"), with and into Cheniere LNG with Cheniere LNG surviving the
Merger; and
FURTHER RESOLVED, that upon consummation of the Merger and
pursuant to the terms and conditions of the Plan of Merger, the total
number of issued and outstanding shares of the common stock, par value
$0.01 per share ("Corporation Common Stock"), of the Corporation held by
each holder of such shares immediately prior to the effectiveness of the
Merger shall, by virtue of the Merger and without any action on the part
of any person or entity, be converted into and exchangeable for the
right to receive an equal number of shares of the common stock, par
value $0.01 per share, of Cheniere LNG (the "Cheniere LNG Common
Stock").
FURTHER RESOLVED, that the Plan of Merger be, and hereby is,
authorized and approved; and
FURTHER RESOLVED, that the Plan of Merger be submitted to the
sole shareholder of the Corporation for its approval thereof in
accordance with Articles 5.16A.(b) and 5.03 of the TBCA, and that the
Board of Directors hereby recommends that such sole shareholder adopt
and approve the Plan of Merger; and
FURTHER RESOLVED, that the consummation of the transactions
contemplated by the Plan of Merger, including, without limitation, the
consummation of the transactions contemplated by any and all documents,
certificates, instruments, agreements or other writings constituting
exhibits to the Plan of Merger or otherwise referred to therein, related
thereto, contemplated thereby or necessary, appropriate, advisable or
desirable to consummate the transactions contemplated thereby
(collectively, the "Additional Documents"), including, without
limitation, any such documents to be filed in the office of the
Secretary of State of the State of Delaware and/or the office of the
Secretary of State of the State of Texas in order to effectuate the
Merger, are hereby authorized and approved, with such changes therein as
the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer, and/or any Assistant Treasurer of
the Corporation (collectively, the "Proper Officers"), any one of whom
may act without the joinder of any of the others, shall approve (with
such approval to be evidenced by the execution of such agreement by any
such Proper Officer) and that each such Proper Officer be, and hereby
is, subject to the approval of the Plan of Merger by the shareholders of
the Corporation, authorized to cause the Corporation to perform the
transactions contemplated by the Plan of Merger and/or any Additional
Documents; and
FURTHER RESOLVED, that the Proper Officers, any one of whom may
act without the joinder of any of the others, be, and each of them
hereby is, subject to the approval of the Plan of Merger by the
shareholders of the Corporation, authorized, empowered, and directed,
for, on behalf of, and in the name of, the Corporation, to make,
execute, certify, deliver, and acknowledge the Plan of Merger and any
Additional Documents, and to do or cause to be done any and all such
other acts and things as they, or any of them, may deem necessary,
appropriate, advisable or desirable to make effective or implement the
intent and purposes of the foregoing resolutions, and any such document
so executed or act or thing done or caused to be done by them, or any of
them, shall be conclusive evidence of their, his or her authority in so
doing.
5. The Merger has been adopted, approved, certified, executed and
acknowledged by the Corporation in accordance with the laws under which it is
organized.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership
and Merger to be executed effective as of the date first set forth above.
CXY CORPORATION, a Texas Corporation
By:
---------------------------------
Don Turkleson
Treasurer and Secretary