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EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WESTPORT RESOURCES CORPORATION
Westport Resources Corporation, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Company is Westport Resources Corporation. The
Company was originally incorporated under the name Equitable
Production (Gulf) Company. The date of filing of its original
Certificate of Incorporation with the Secretary of State of the
State of Delaware was September 22, 1999. A Certificate of
Amendment was filed with the Secretary of State of the State of
Delaware on March 9, 2000. A Restated Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware on
March 31, 2000 (the "RESTATED CERTIFICATE"). A Certificate of
Amendment changing its name from Equitable Production (Gulf)
Company to Westport Resources Corporation was filed with the
Secretary of State of the State of Delaware on May 2, 2000. A
Certificate of Amendment was filed with the Secretary of State of
the State of Delaware on August 23, 2000.
2. This Second Amended and Restated Certificate of Incorporation,
which amends, restates and supersedes the provisions of the
Restated Certificate as originally filed and thereafter amended as
described in Paragraph 1 above, was duly adopted by the board of
directors of the Company in accordance with the provisions of
Sections 242 and 245 of the DGCL, and was duly adopted by the
stockholders of the Company in accordance with the applicable
provisions of Sections 228, 242 and 245 of the DGCL.
3. Capitalized terms used herein shall have the meaning given to such
terms in Article XIV.
4. The text of the Restated Certificate, as amended, is hereby
amended, restated and superseded to read in its entirety as
follows:
I. NAME
The name of the company is Westport Resources Corporation.
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 DGCL.
IV. SHARES
The total number of shares of stock that the Company shall have
authority to issue is 75 million of which 70 million shares shall be common
stock with a par value of $0.01 per share and 5 million shall be preferred stock
with a par value of $0.01 per share. 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
DGCL, the Board of Directors 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) The Board of Directors shall be divided into three classes as
nearly equal in number as possible, 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.
(b) Any director may resign at any time upon written notice to the
Company.
7.3 Quorum and Voting. Except as otherwise specifically provided by
law, in the Certificate of Incorporation or in 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.
7.4 Number of Directors. The number of directors of the Company shall
not be less than one nor more than 15, the exact number of directors to be such
number as may be set from time to time within the limits set forth above by
resolution adopted by affirmative vote of a majority of the Board of Directors.
7.5 Removal of Directors. Any director may be removed at any annual or
special stockholders' meeting upon the affirmative vote of the holders of a
majority of the outstanding shares of voting stock of the Company at that time
entitled to vote thereon; provided, however, that such director may be removed
only for cause and shall receive a copy of the charges against him, delivered to
him personally or by mail at his last known address at least ten days prior to
the date of the stockholders' meeting.
VIII. DIRECTOR LIABILITY
A director 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
of 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
law, (c) under Section 174 of the DGCL, or (d) for any transaction from which
the director derived an improper
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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 existing at the time of such
repeal or modification.
IX. INDEMNIFICATION
9.1 General. Subject to Article VIII, the Company shall indemnify, to
the maximum extent permitted by the DGCL, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company), by reason of the fact
that the person is or was a director or officer of the Company, or is or was
serving at the request of the Company as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, have reasonable cause to believe
that his or her conduct was unlawful.
9.2 Actions by or in the Right of the Company. The Company shall
indemnify, to the maximum extent permitted by the DGCL, any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to procure a judgment
in its favor by reason of the fact that the person is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture or trust
or other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit.
9.3 Indemnification Against Expenses. To the extent that a present or
former director or officer of the Company has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections
9.1 and 9.2, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
9.4 Advancement of Expenses. Expenses including attorneys' fees
incurred by an officer or director in defending a civil or criminal action, suit
or proceeding shall be paid by the Company in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the Company
as authorized by the DGCL or in this Article IX. Such expenses incurred by
former directors and officers may be so paid upon such terms and conditions, if
any, as the Company deems appropriate.
9.5 Nonexclusive. The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall not be deemed exclusive
of any other rights to which any
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director or officer of the Company seeking indemnification or advancement of
expenses may be entitled under any other bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office, and shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer of the
Company and shall inure to the benefit of the heirs, executors and
administrators of such a person.
9.6 Insurance. The Company may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Company, or is
or was serving at the request of the Company as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by such person in any such
capacity or arising out of such person's status as such, whether or not the
Company would have the power to indemnify such person against such liability
under the provisions of the DGCL, the Certificate of Incorporation or this
Section 9.6.
9.7 Certain Definitions. For purposes of this Article IX, (a)
references to "the Company" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger that, if its separate
existence had continued, would have had power and authority to indemnify its
directors and officers so that any person who is or was a director or officer of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director or officer 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 such person would have with respect to such constituent
corporation if its separate existence had continued; (b) references to "other
enterprises" shall include employee benefit plans; (c) references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and (d) references to "serving at the request of the Company"
shall include any service as a director or officer of the Company that imposes
duties on, or involves services by, such director or officer with respect to any
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Company" as referred to in this section.
9.8 Change in Governing Law. In the event of any amendment or addition
to Section 145 of the DGCL or the addition of any other section to such law that
limits indemnification rights thereunder, the Company shall, to the extent
permitted by the DGCL, indemnify to the fullest extent authorized or permitted
hereunder, any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including an action by or in
the right of the Company), by reason of the fact that he or she is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding.
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9.9 Limitation. Notwithstanding anything herein to the contrary, the
Company shall not indemnify or advance any expenses to any person who is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding relating to any matter brought in connection with the
Agreement and Plan of Merger, dated as of March 9, 2000, by and among Westport
Oil and Gas Company, Inc., Equitable Production Company, Equitable Production
(Gulf) Company, Westport Energy Corporation and EPGC Merger Sub Corporation.
X. STOCKHOLDER ACTION
Any action by stockholders must be taken at an annual or special
meeting of stockholders of the Company. Stockholder action by written consent in
lieu of a meeting is not allowed.
XI. 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.
XII. AMENDMENTS
This Certificate of Incorporation may be amended in accordance with
Section 242 of the DGCL; provided, however, that any amendment of Section 7.5
and Article IX herein will require an affirmative vote of the holders of
two-thirds (2/3) of the outstanding shares of voting stock of the Company at
that time entitled to vote thereon.
XIII. SECTION 203 - BUSINESS COMBINATIONS WITH
INTERESTED STOCKHOLDERS
The Company hereby expressly elects not to be governed by Section 203
of the DGCL.
XIV. DEFINITIONS
"BOARD OF DIRECTORS": the board of directors of the Company.
"COMMISSION": the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"COMMON STOCK": the common stock of the Company now or hereafter
authorized to be issued.
"COMPANY": Westport Resources Corporation.
"DGCL": General Corporation Law of the State of Delaware.
"EPC": Equitable Production Company.
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"PERSON": any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or other entity, whether
acting in an individual, fiduciary or other capacity.
"SHAREHOLDERS AGREEMENT": the Shareholders Agreement dated as of March
9, 2000 by and among the Company, WEC and EPC.
"SHARES": shares of Common Stock.
"WEC": Westport Energy Company.
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IN WITNESS WHEREOF, the Company has caused this Second Amended and
Restated Certificate of Incorporation to be signed by Donald D. Wolf, its
Chairman and Chief Executive Officer, this 25th day of October, 2000.
WESTPORT RESOURCES CORPORATION
By: /s/ Donald D. Wolf
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Name: Donald D. Wolf
Title: Chairman and Chief Executive Officer
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