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EXHIBIT 3.1
FORM OF RESTATED ARTICLES OF INCORPORATION
OF
W-H ENERGY SERVICES, INC.
ARTICLE ONE
The name of the corporation is W-H Energy Services, Inc.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose or purposes for which the corporation is organized are:
To transact any and all lawful business for which
corporations may be incorporated under the Texas Business
Corporation Act; and
In general, to have and exercise all of the powers
conferred by the laws of the State of Texas upon corporations
formed under the Texas Business Corporation Act, and to do any
and all things hereinbefore set forth to the same extent as
natural persons might or could do.
ARTICLE FOUR
The aggregate number of shares of capital stock which the corporation
shall have authority to issue is one hundred ten million (110,000,000) shares,
of which one hundred million (100,000,000) shares shall be designated as Common
Stock, par value $.0001 per share, and ten million (10,000,000) shares shall be
designated as Preferred Stock, par value $.01 per share.
The following is a statement fixing certain of the designations and
rights, voting rights, preferences, and relative, participating, optional or
other rights of the Preferred Stock and the Common Stock of the corporation, and
the qualifications, limitations or restrictions thereof, and the authority with
respect thereto expressly granted to the Board of Directors of the corporation
to fix any such provisions not fixed by these Articles:
A. PREFERRED STOCK
The Board of Directors is hereby expressly vested with the
authority to adopt a resolution or resolutions providing for the
issuance of authorized but unissued shares of Preferred Stock, which
shares may be issued from time to time in one or more series and in
such amounts as may be determined by the Board of Directors in such
resolution or resolutions. The rights, voting rights, designations,
preferences,
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and relative, participating, optional or other rights, if any, of each
series of Preferred Stock and the qualifications, limitations or
restrictions, if any, of such preferences and/or rights (collectively
the "Series Terms"), shall be such as are stated and expressed in a
resolution or resolutions providing for the creation or revision of
such Series Terms (a "Preferred Stock Series Resolution") adopted by
the Board of Directors. The Board shall have the power and authority,
to the fullest extent permissible under the Texas Business Corporation
Act (the "Act"), as currently in effect or as amended, to determine and
establish by a Preferred Stock Series Resolution, the Series Terms of a
particular series, including, without limitation, determination of the
following:
(1) The number of shares constituting that series and
the distinctive designation of that series, or any increase or
decrease (but not below the number of shares thereof then
outstanding) in such number;
(2) The dividend rate on the shares of that series;
whether such dividends, if any, shall be cumulative,
noncumulative, or partially cumulative and, if cumulative or
partially cumulative, the date or dates from which dividends
payable on such shares shall accumulate; and the relative
rights of priority, if any, of payment of dividends on shares
of that series;
(3) Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the
terms of such voting rights;
(4) Whether that series shall have conversion
privileges with respect to shares of any other class or
classes of stock or of any other series of any class of stock,
and, if so, the terms and conditions of such conversion,
including provision for adjustment of the conversion rate upon
occurrence of such events as the Board of Directors shall
determine;
(5) Whether the shares of that series shall be
redeemable at the option of either the corporation or the
holder, and, if so, the terms and conditions of such
redemption, including relative rights of priority, if any, of
redemption, the date or dates upon or after which they shall
be redeemable, provisions regarding redemption notices, and
the amount per share payable in case of redemption, which
amount may vary under different conditions and at different
redemption dates;
(6) Whether the corporation shall have any repurchase
obligation with respect to the shares of that series and, if
so, the terms
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and conditions of such obligation, subject, however, to the
limitations of the Act;
(7) Whether that series shall have a sinking fund for
the redemption or purchase of shares of that series, and, if
so, the terms and amount of such sinking fund;
(8) The rights of the shares of that series in the
event of voluntary or involuntary liquidation, dissolution or
winding up of the corporation, and the relative rights of
priority, if any, of payment of shares of that series;
(9) The conditions or restrictions upon the creation
of indebtedness of the corporation or upon the issuance of
additional Preferred Stock or other capital stock ranking on a
parity therewith, or prior thereto, with respect to dividends
or distribution of assets upon liquidation;
(10) The conditions or restrictions with respect to
the issuance of, payment of dividends upon, or the making of
other distributions to, or the acquisition or redemption of,
shares ranking junior to the Preferred Stock or to any series
thereof with respect to dividends or distribution of assets
upon liquidation;
(11) The relative priority of each series of
Preferred Stock in relation to other series of Preferred Stock
with respect to dividends or distribution of assets upon
liquidation; and
(12) Any other designations, powers, preferences and
rights, including, without limitation, any qualifications,
limitations or restrictions thereof.
Any of the Series Terms, including voting rights, of
any series may be made dependent upon facts ascertainable
outside the Articles of Incorporation and the Preferred Stock
Series Resolution, provided that the manner in which such
facts shall operate upon such Series Terms is clearly and
expressly set forth in the Articles of Incorporation or in the
Preferred Stock Series Resolution.
Subject to the provisions of this Article Four,
shares of one or more series of Preferred Stock may be
authorized or issued from time to time as shall be determined
by and for such consideration as shall be fixed by the Board
of Directors, in an aggregate amount not exceeding the total
number of shares of Preferred Stock authorized by the Articles
of Incorporation. All shares of any one series of Preferred
Stock so designated by the Board of Directors shall be alike
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in every particular, except that shares of any one series
issued at different times may differ as to the dates from
which dividends thereon shall be cumulative.
B. COMMON STOCK
1. DIVIDENDS. Subject to the provisions of any Preferred Stock
Series Resolution, 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.
No dividend (other than a dividend in capital stock ranking on
a parity with the Common Stock or cash in lieu of fractional shares
with respect to such stock dividend) shall be declared or paid on any
share or shares of any class of stock or series thereof ranking on a
parity with the Common Stock in respect of payment of dividends for any
dividend period unless there shall have been declared, for the same
dividend period, like proportionate dividends on all shares of Common
Stock then outstanding.
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 and payment or
setting aside for payment of any preferential amount due to the holders
of any other class or series of stock, the holders of the Common Stock
shall be entitled to receive ratably any or all assets remaining to be
paid or distributed.
3. VOTING RIGHTS. Subject to any special voting rights set
forth in any Preferred Stock Series Resolution, the holders of the
Common Stock of the corporation shall be entitled at all meetings of
shareholders to one vote for each share of such stock held by them.
C. PRIOR, PARITY OR JUNIOR STOCK
Whenever reference is made in this Article Four to shares
"ranking prior to" another class of stock or "on a parity with" another
class of stock, such reference shall mean and include all other shares
of the corporation in respect of which the rights of the holders
thereof as to the payment of dividends or as to distributions upon a
Liquidation Event, as the case may be, are given preference over, or
rank on an equality with, as the case may be, the rights of the holders
of such other class of stock. Whenever reference is made to shares
"ranking junior to" another class of stock, such reference shall mean
and include all shares of the corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions upon a Liquidation Event, as the case may be, are junior
and subordinate to the rights of the holders of such class of stock.
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Except as otherwise provided herein or in any Preferred Stock
Series Resolution, each series of Preferred Stock ranks on a parity
with each other with respect to the payment of dividends and
distributions upon a Liquidation Event, and each ranks prior to the
Common Stock with respect to the payment of dividends and distributions
upon a Liquidation Event. Common Stock ranks junior to the Preferred
Stock with respect to the payment of dividends and distributions upon a
Liquidation Event.
D. LIQUIDATION
For the purposes of Section 2 of Section B of this Article
Four and for the purpose of the comparable sections of any Preferred
Stock Series Resolution, the merger or consolidation of the corporation
into or with any other corporation, or the merger of any other
corporation into it, or the sale, lease, or conveyance of all or
substantially all the assets, property or business of the corporation,
shall not be deemed to be a liquidation, dissolution or winding up of
the corporation.
E. RESERVATION AND RETIREMENT OF SHARES
The corporation shall at all times reserve and keep available,
out of its authorized but unissued shares of Common Stock or out of
shares of Common Stock held in its treasury, the full number of shares
of Common Stock into which all shares of any series of Preferred Stock
having conversion privileges from time to time outstanding are
convertible.
Unless otherwise provided in a Preferred Stock Series
Resolution with respect to a particular series of Preferred Stock, all
shares of Preferred Stock redeemed or acquired (as a result of
conversion or otherwise) shall be retired and restored to the status of
authorized but unissued shares.
F. NO PREEMPTIVE RIGHTS
No holder of shares of stock of the corporation shall have any
preemptive or other right, 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.
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ARTICLE FIVE
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000) consisting of money paid, labor done, or property actually received.
ARTICLE SIX
The address of its current registered office is 1021 Main Street, Suite
1150, Houston, Texas 77002 and the name of the current registered agent at such
address is CT Corporation.
ARTICLE SEVEN
The number of directors constituting the current Board of Directors is
eight and the names and addresses of the persons who are to serve as the
directors of the corporation until the next annual meeting of the shareholders
or until their successors are elected and qualified are:
NAME ADDRESS
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Kenneth T. White 10370 Richmond Avenue, Suite 990
Houston, Texas 77042
Jonathan F. Boucher 767 Fifth Avenue
New York, New York 10153
John W. Jordan II 767 Fifth Avenue
New York, New York 10153
David W. Zalaznick 767 Fifth Avenue
New York, New York 10153
J. Jack Watson 1890 Jelinda Drive
Montecito, CA 93108
Christopher Mills 10 Park Place
London, England
SW1A1LP
Roberts H. Whilden, Jr. 2101 CityWest Blvd., Suite 2053A
Houston, Texas 77042-2827
Milton L. Scott 1000 Louisiana Street, Suite 5800
Houston, Texas 77002
The right of shareholders to cumulative voting in the election of
directors is expressly prohibited.
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ARTICLE EIGHT
Unless a Bylaw adopted by the shareholders provides otherwise as to all
or some portion of the corporation's Bylaws, the corporation's shareholders may
amend, repeal or adopt the corporation's Bylaws even though the Bylaws may also
be amended, repealed or adopted by its Board of Directors.
ARTICLE NINE
A director of the corporation shall not be liable to the corporation or
its shareholders for monetary damages for an act or omission in the director's
capacity as a director, except that this Article Nine does not eliminate or
limit the liability of a director to the extent the director is found liable for
(i) a breach of the director's duty of loyalty to the corporation or its
shareholders; (ii) an act or omission not in good faith that constitutes a
breach of duty of the director to the corporation or an act or omission that
involves intentional misconduct or a knowing violation of the law; (iii) a
transaction from which the director received an improper benefit, whether or not
the benefit resulted from an action taken within the scope of the director's
office; or (iv) an act or omission for which the liability of a director is
expressly provided by an applicable statute. Any repeal or amendment of this
Article Nine by the shareholders of the corporation shall be prospective only
and shall not adversely affect any limitation on the liability of a director of
the corporation existing at the time of such repeal or amendment. In addition to
the circumstances in which the director of the corporation is not liable as set
forth in the preceding sentences, the director shall not be liable to the
fullest extent permitted by any provisions of the statutes of the State of Texas
hereafter enacted that further limits the liability of a director.
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