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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
OIL STATES INTERNATIONAL, INC.
The name of the corporation is "Oil States International, Inc." (the
"Corporation").
The original certificate of incorporation was filed with the Secretary
of State of the State of Delaware on July 6, 1995, under the name "CE Holdings,
Inc."
This Amended and Restated Certificate of Incorporation (this
"Certificate of Incorporation") has been declared advisable by the board of
directors of the Corporation (the "Board"), duly adopted by the stockholders of
the Corporation and duly executed and acknowledged by the officers of the
Corporation in accordance with Sections 103, 242 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL").
The text of the certificate of incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation is "Oil States International, Inc."
ARTICLE II
REGISTERED AGENT
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the city of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purposes of the Corporation are to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
ARTICLE IV
CAPITAL STOCK
Section 4.1. Authorized Capital Stock. The Corporation shall be
authorized to issue 225,000,000 shares of capital stock, consisting of two
classes: 200,000,000 shares of common stock, par value $.01 per share ("Common
Stock"), and 25,000,000 shares of preferred stock, par value $.0001 per share
("Preferred Stock").
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Effective as of the close of business on the day of the filing of this
Certificate of Incorporation with the Secretary of State of the State of
Delaware, the "Class A Common Stock" and "Class B Common Stock" designations
shall be canceled, and the Common Stock of the Corporation shall consist of a
single class of 200,000,000 authorized shares, designated as "Common Stock."
Effective as of the close of business on the day of the filing of this
Certificate of Incorporation with the Secretary of State of the State of
Delaware (the "Effective Time"), each share of Class A Common Stock, par value
$0.01 per share ("Old Common Stock"), issued at such time shall be and hereby is
automatically reclassified and changed into one-third of one share (the "Reverse
Stock Split") of Common Stock without any action by the holder thereof. Shares
of Old Common Stock that are held by stockholders through multiple certificates
shall be aggregated for purposes of determining the total number of shares of
Common Stock issuable to each stockholder in the Reverse Stock Split. No
certificates representing fractional shares of Common Stock shall be issued in
connection with the Reverse Stock Split. Instead, at the Effective Time, each
fractional share of Common Stock otherwise resulting from the Reverse Stock
Split shall automatically be converted into the right to receive, upon surrender
of all certificates of Old Common Stock, the cash value of such fractional share
based upon the initial public offering price of the Common Stock. Effective as
of the Effective Time, the certificates outstanding and previously representing
shares of Old Common Stock shall, until surrendered and exchanged, be deemed,
for all corporate purposes, to represent one share of Common Stock for each
three shares of Old Common Stock previously represented by such certificates.
Section 4.2. The authorized shares of Preferred Stock may be issued in
one or more series. Subject to any provision made in this Article Four fixing
and determining the designations, rights and preferences of any series of
Preferred Stock, the Board of Directors is hereby authorized to issue the shares
of Preferred Stock in such series and to fix from time to time before issuance
the number of shares to be included in any series, the par value and the
designation, relative powers, preferences and rights and qualifications,
limitations or restrictions of all shares of such series. The authority of the
Board of Directors with respect to each series shall include, without limiting
the generality of the foregoing, the determination of any or all of the
following:
a. the number of shares of any series and the designation to
distinguish the shares of such series from the shares of all other series;
b. the voting powers, if any, and whether such voting powers are full
or limited, in such series;
c. the redemption provisions, if any, applicable to such series,
including the redemption price or prices to be paid;
d. whether dividends, if any, shall be cumulative or noncumulative, the
dividend rate of such series, and the dates and preferences of dividends on such
series;
e. the rights of such series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the Corporation;
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f. the provisions, if any, pursuant to which the shares of such series
are convertible into, or exchangeable for, shares of any other class or classes
of any other series of the same or any other class or classes of stock, or any
other security, of the Corporation or any other corporation, and price or prices
or the rates of exchange applicable thereto;
g. the right, if any, to subscribe for or to purchase any securities of
the Corporation or any other corporation;
h. the provisions, if any, of a sinking fund applicable to such series;
and
i. any other relative, participating, optional or other special powers,
preferences, rights, qualifications, limitations or restrictions thereof;
all as shall be determined from time to time by the Board of Directors
and shall be stated in a resolution or resolutions providing for the issuance of
such Preferred Stock (a "Preferred Stock Designation").
Except as required by law, holders of shares of Preferred Stock shall
not be entitled to receive notice of any meeting of stockholders at which they
are not entitled to vote. The number of authorized shares of Preferred Stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the
outstanding Common Stock, without a vote of the holders of the Preferred Stock,
or of any series thereof, unless a vote of any such holders is required pursuant
to any Preferred Stock Designation.
Section 4.3. There is hereby designated a series of Preferred Stock
known as the "Series A Convertible Cumulative Preferred Stock," par value
$0.0001 per share, and the number of shares constituting this series shall be
16,250.
a. Certain Definitions. The following terms, as used with respect to
this series, shall have the following meanings given to them:
Affiliate means, with respect to any Person, any other Person
controlling, controlled by, or under common control with that first
Person. As used in this definition, the term "control" means the
possession, directly or indirectly, of the power to direct, or cause
the direction of, the management and policy of the controlled Person.
Business Day means any day other than Saturday, Sunday and any
day on which banks in Houston, Texas are authorized by law not to open
for business.
Change of Control means such time as (i) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), other than SCF-III, L.P., has become
the beneficial owner, by way of merger, consolidation, stock purchase
or otherwise, of more than 50% of the common stock of the Corporation.
Conversion Date means a date set by the Corporation as the
date on which it shall cause the conversion of the Preferred Stock into
Conversion Shares provided that such
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date shall be within 10 days from the date on which the Corporation
receives any Conversion Notice.
Conversion Price means the "Conversion Price" set forth on the
share certificate evidencing ownership of a share of Preferred Stock
(which price shall be the same for all shares of the Preferred Stock,
but which may differ for other series of the Corporation's preferred
stock); provided, if the Corporation shall at any time or from time to
time after the date hereof (i) effect a subdivision of the outstanding
common stock thereof, the Conversion Price in effect immediately before
that subdivision shall be proportionately decreased or (ii) combine the
outstanding shares of common stock thereof, the Conversion Price in
effect immediately before the combination shall be proportionately
increased. Any adjustment described in the preceding proviso shall
become effective at the close of business on the date the subdivision
or combination becomes effective.
Delaware Act means the General Corporation Law of the State of
Delaware, as amended from time to time.
Junior Stock means the Common Stock and any other capital
stock of the Corporation other than capital stock, upon issuance, which
is on parity with or senior to the Preferred Stock.
Liquidation Value means (a) with respect to any whole share of
Preferred Stock, an amount determined from time to time equal to $100
per share of Preferred Stock plus accrued and unpaid dividends at the
time of any determination related to such share and (b) with respect to
any fractional share of Preferred Stock, the amount determined under
clause (a) preceding multiplied by the fraction that corresponds to
such fractional share. For example, a .5 share of Preferred Stock would
have a Liquidation Value equal to .5 of the Liquidation Value of a
whole share.
Person means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or a political
subdivision, agency or instrumentality thereof or other entity or
organization of any kind.
Preferred Stock means the 16,250 shares of the Corporation's
Series A Convertible Cumulative Preferred Stock having a par value of
$0.0001 per share.
Public Offering means an underwritten public offering of
Common Stock of the Corporation pursuant to a registration statement
filed under the Securities Act of 1933, as amended (other than any
registration statement relating to warrants, options or shares of
capital stock granted or to be granted or sold primarily to employees,
directors, or officers of the Corporation, a registration statement
filed pursuant to Rule 145 under the Securities Act of 1933, as
amended, or any successor rule, a registration statement relating to
employee benefit plans or interests therein and any registration
statement covering preferred stock or securities issued in connection
with any debt or preferred stock financing of the Corporation) wherein
the aggregate net proceeds (after deducting
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all costs, discounts, commissions and other expenses of the offering)
to the Corporation, or the selling stockholders are at least
$10,000,000.
Purchase Agreement shall mean that certain Stock Purchase
Agreement among the Corporation, SMATCO Industries, Inc. and the
Sellers listed therein, as such agreement may be amended, modified,
supplemented, or restated from time to time.
b. Dividends.
(i) Dividend Rate. The holders of the Preferred Stock shall be
entitled to receive, when and as declared by the Board, out of funds of the
Corporation lawfully available for the payment of dividends, cash dividends at
the rate of 3% per annum of the Liquidation Value of such shares, and no more,
from the date of original issuance, payable annually on July 31 of each year,
commencing on July 31, 1998, except that if any such date is not a Business Day
then such dividend shall be payable on the first immediately preceding day which
is a Business Day. Each dividend payment period from July 31 of one year to July
31 of the immediately succeeding year is referred to in this Certificate as a
"Dividend Payment Period."
(ii) Computation; Record Date. Dividends on the Preferred Stock will
be cumulative (whether or not declared or paid) from the date of original issue
so long as the Preferred Stock is outstanding. With respect to Preferred Stock
that is not outstanding for a full Dividend Payment Period, dividends for such
shorter period shall be prorated based on a year of 365 days. Dividends will be
payable to holders of record as they appear on the stock books of the
Corporation on such record dates as may be fixed by the Board (or any authorized
committee thereof), and no such record date shall be more than 60 days nor less
than 10 days preceding the corresponding dividend payment date thereof.
Dividends on account or arrears for any past dividend periods may be declared
and paid at any time, without reference to any regular dividend payment date, to
holders of record on a date not more than 60 days nor less than 10 days
preceding the payment date thereof as may be fixed by the Board of the
Corporation (or any duly authorized committee thereof).
(iii) General Provisions. Unless full cumulative dividends on the
outstanding Preferred Stock have been paid, or declared and a sum sufficient for
the payment thereof set apart for payment, no dividends or other distributions
of cash, securities or other property of any kind or character, other than
dividends payable solely in shares of Common Stock or any other class or series
of the Corporation's Junior Stock, will be paid or distributed or set apart for
payment or distribution on or in respect of, and no purchase, redemption or
other acquisition will be made directly or indirectly by the Corporation or any
of its subsidiaries of, any shares of Junior Stock, unless and until all (A)
accrued and unpaid dividends on the Preferred Stock, (B) all amounts payable in
connection with the mandatory redemption of all shares of Preferred Stock
theretofore called or required hereunder to have been theretofore called for
redemption, and (C) all amounts that shall have theretofore become payable to
holders of Preferred Stock pursuant to Section 4.3(f) hereof, shall have been
fully paid or set apart and held in trust for the sole and exclusive benefit of
the holders of Preferred Stock entitled thereto.
(iv) Pari Passu Stock; Pro Rata Payment. If the Corporation does not
have sufficient lawfully available funds to make payment in full of dividends on
the Preferred Stock
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and any other preferred stock of the Corporation ranking on parity (as to
payment of dividends) with the Preferred Stock (the "Pari Passu Stock"), all
dividends declared upon shares of the Preferred Stock and Pari Passu Stock shall
be declared and paid on a pro rata basis so that (a) the ratio of the amount of
dividends declared and paid on all of the shares of Preferred Stock (determined
on an aggregate basis) to the amount of dividends declared and paid on all of
the shares of Pari Passu Stock (determined on an aggregate basis) is the same
ratio as (b) the ratio that the amount of dividends that would be payable on all
of the shares of Preferred Stock (determined on an aggregate basis) if the
Corporation had sufficient lawfully available funds to make all dividend
payments on the Preferred Stock and the Pari Passu Stock in full bears to the
amount of dividends that would be payable on all of the shares of Pari Passu
Stock (determined on an aggregate basis) if the Corporation had sufficient
legally available funds to make all dividend payments on the Preferred Stock and
the Pari Passu Stock in full.
c. Mandatory and Optional Conversion.
(i) Mandatory Conversion. Each share of Preferred Stock outstanding
on August 1, 2002 shall be automatically converted into a number of shares of
Common Stock (the "Conversion Shares"). Each share of Preferred Stock shall be
convertible into a number of shares of Conversion Shares according to the
conversion ratio and the conversion procedures. Subject to compliance with the
conditions for conversion set forth in the remaining provisions of this Section
4.3(c), the Corporation shall cause certificates evidencing ownership of the
Conversion Shares to be delivered to each holder of Preferred Stock on or before
August 15, 2002.
(ii) Optional Conversion. Upon the consummation of (i) a Public
Offering (ii) a sale of all or substantially all of the assets of the
Corporation ("Sale") or (iii) a Change of Control that occurs prior to August 1,
2002, each holder of Preferred Stock may elect to convert the shares of
Preferred Stock held thereby for Conversion Shares, and such conversion shall
become effective immediately preceding the consummation of such Public Offering,
Sale or Change of Control; provided, such conversion shall not become effective
if such event giving rise to the option to convert is not consummated. Each
share of Preferred Stock shall be convertible into a number of shares of
Conversion Shares according to the conversion ratio and the conversion
procedures set forth in the remaining provisions of this Section 4.3(c). The
Corporation shall notify each holder of Preferred Stock at least 20 days prior
to the scheduled consummation of a Public Offering, Sale or Change of Control
(the "Offering Notice"). A holder desiring to convert any share or shares of
Preferred Stock for Conversion Shares as of the consummation of the Public
Offering must send written notice (the "Conversion Notice") to the Corporation
within 10 days after receipt of the Offering Notice setting forth the number of
shares of Preferred Stock that it elects to have converted.
(iii) Conversion Ratio. Each share of Preferred Stock shall be
convertible into a number of Conversion Shares determined by dividing the
Liquidation Value of the share of Preferred Stock, determined as of the
particular Conversion Date, by the Conversion Price.
(iv) Conversion Procedures. As a condition to any conversion under
Section 4.3(c)(ii) and as a condition to the Corporation's obligation to deliver
new certificates evidencing the ownership of the Conversion Shares, the holder
thereof shall surrender the
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certificate or certificates for such shares of Preferred Stock at the office of
the transfer agent of the Corporation (or at the principal office of the
Corporation, if the Corporation serves as its own transfer agent) on the
Business Day immediately preceding the applicable Conversion Date. If required
by the Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by a written instrument or instruments of transfer, in a form
satisfactory to the Corporation, duly executed by the registered holder or his
or its attorney duly authorized in writing. All shares of Preferred Stock, which
shall have been surrendered for conversion as herein provided, shall no longer
be deemed to be outstanding and all rights with respect to such shares,
including the rights, if any, to receive dividends, shall immediately cease and
terminate on the Conversion Date except only the right of the holders thereof to
receive the Conversion Shares. Any shares of Preferred Stock so converted shall
be retired and canceled and shall not be reissued. The Corporation may from time
to time take such appropriate action as may be necessary to reduce the number of
shares of authorized Preferred Stock accordingly. Prior to each holder receiving
Conversion Shares, such holder shall automatically become bound by the
securityholders agreement to which the Corporation's largest shareholder is then
bound and shall, at the Corporation's request, execute an Adoption Agreement
confirming that the Conversion Shares are bound by such securityholders
agreement. Upon satisfying the conditions and other procedures set forth in this
Section 4.3(c)(iv), the holder of any Conversion Shares shall be granted
piggy-back registration rights having the same terms as those then inuring to
the benefit of the Corporation's largest shareholder including piggy-back
registration rights (to the extent the largest shareholder would have same) with
respect to the Public Offering that enabled any holder to make a conversion
under Section 4.3(c)(ii).
d. Redemption.
(i) Optional Redemption. Subject to the optional conversion rights
in Section 4.3(c)(ii) above and provided that the time period for responding to
an Offer Notice by a holder of the Preferred Stock has expired, upon the
occurrence of (i) the consummation of a Public Offering, (ii) a Change of
Control or (iii) consummation of a Sale, the Corporation will, prior to or
contemporaneously with the consummation of any of the foregoing events, have the
option to redeem all or any portion of the outstanding Preferred Stock at a
redemption price payable in cash equal to the Liquidation Value.
(ii) Redemption Procedures. The right or obligations of the
Corporation to make any redemption pursuant to Section 4.3(d)(i) shall be
subject to the conversion rights set forth in Section 4.3(c)(ii) above and
satisfaction, at or prior to such redemption, of the following conditions.
(A) Any redemption effected pursuant to Section 4.3(d)(i) shall
be made on a pro rata basis among the holders of the Preferred Stock in
proportion to the shares of Preferred Stock then held by them.
(B) Any redemption pursuant to Section 4.3(d)(i) shall be
effected by written or printed notice by certified mail, postage
prepaid, return receipt requested, to the holders of record of the
Preferred Stock being redeemed, such notice to be addressed to each
holder at the address shown in the Corporation's records which notice
shall (i) specify the date of redemption, (ii) the number of shares of
the holder to be redeemed
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(which shall be all shares upon a redemption under Section 4.3(d)(iii),
(iii) the place at which holders of the Preferred Stock shall surrender
their certificate or certificates and obtain payment of the redemption
price and (iv) such other information, if any, as the Board may deem
appropriate. Such notice shall be given no more than 60 but no less
than 5 days prior to the date fixed for redemption.
(C) On or after the date of redemption as specified in the
notice specified in Section 4.3(d)(iii)(B), each holder shall surrender
to the Corporation, at the place specified in such notice, its
certificate or certificates (or comply with applicable lost certificate
provisions) for the Preferred Stock to be redeemed as stated in the
notice. Provided such notice is duly given and provided that on the
redemption date specified there shall be a source of funds legally
available for such redemption and the redemption price necessary for
the redemption shall have been paid, then all rights with respect to
such shares shall, after the specified redemption date, terminate,
whether or not said certificates have been surrendered, excepting only
in the latter instance the rights of the holder to receive the
redemption price thereof, without interest, upon such surrender (or
compliance with lost certificate provisions).
(iv) No Reissue of Shares. Any shares of the Preferred Stock
redeemed, purchased, or otherwise acquired by the Corporation shall be deemed
retired and may not under any circumstances thereafter be issued or otherwise
disposed of by the Corporation.
e. Voting Rights. Except for the voting rights in Section 4.3(g) below
or as otherwise from time to time required by law, the holders of Preferred
Stock will have no voting rights with respect to the Preferred Stock, and their
consent will not be required for taking any corporate action.
f. Liquidation Preference.
(i) General. In the event of any liquidation, dissolution or
winding-up of the affairs of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities of the
Corporation, the holders of the Preferred Stock shall be entitled to receive an
amount in cash for each share of the Preferred Stock equal to the Liquidation
Value before any distribution shall be made to the holders of the Junior Stock
upon the liquidation, dissolution or winding-up of the Corporation. If upon any
liquidation, dissolution or winding-up of the Corporation, the assets
distributable among the holders of the Preferred Stock shall be insufficient to
permit the payment in full of all the holders of the then outstanding shares of
the Preferred Stock and all holders of preferred stock of the Corporation
ranking on a parity with the Preferred Stock with respect to the payment upon
liquidation, dissolution and winding-up of the Corporation of all preferential
amounts payable to all such holders, then the entire assets of the Corporation
thus distributable shall be distributed ratably among the holders of the
Preferred Stock and all such other holders of such parity preferred stock of the
Corporation in proportion to the respective amounts that would be payable per
share if such assets were sufficient to permit payment in full (determined on an
aggregate basis). A consolidation or merger of the Corporation with or into one
or more corporations or a Sale shall not be deemed to be a liquidation,
dissolution or winding-up of the Corporation, if, as a result of
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such consolidation, merger, sale or transfer the holders of the Preferred Stock
retain the liquidation preference set forth in this Section 4.3(f)(i).
(ii) Fair Value. The fair value of the assets or property to be
distributed to the holders of the Preferred Stock in the event of a liquidation,
dissolution or winding up of the Corporation pursuant to Section 4.3(f)(i) shall
be determined by the Board in good faith.
(iii) No Restriction on Surplus. No provision of this Section 4.3(f)
shall in any manner, prior to any liquidation, dissolution, or winding up of the
affairs of the Corporation, whether voluntary or otherwise, create or be deemed
to create any restrictions upon the surplus of the Corporation or prohibit the
payment of dividends on the capital stock of the Corporation out of the funds of
the Corporation legally available therefor, nor shall any such restrictions or
prohibition be in any manner inferred from the provisions of this Section
4.3(f).
g. Covenants of the Corporation. So long as any share of Preferred
Stock remains outstanding, the Corporation shall not, without first obtaining
the affirmative vote or written consent of the holders of more than 50% of the
outstanding shares of Preferred Stock:
(i) Amend or repeal any provision of, or add any provision to, the
Corporation's Certificate of Incorporation or Bylaws if such action would
adversely alter the preferences, rights, privileges or powers of, or the
restrictions provided for the benefit of, the Preferred Stock, or increase or
decrease the number of shares of the Preferred Stock authorized hereby;
(ii) Authorize or issue shares of any class of stock having any
preference or priority as to dividends or assets superior to or on a parity with
any preference or priority of the Preferred Stock, or authorize or issue shares
of stock of any class or any bonds, debentures, notes or other obligations
convertible into or exchangeable for, or having option rights to purchase, any
shares of any other class or series of stock of the Corporation having any
preference or priority as to assets superior or on a parity with any preference
or priority of the Preferred Stock; or
(iii) Reclassify any Junior Stock into shares having any preference
or priority as to assets superior to or on a parity with any preference or
priority of the Preferred Stock.
h. Acknowledgments by Holders. Each holder of the Preferred Stock by
acceptance thereof, acknowledges and agrees that payments of dividends,
interest, premium and principal on, in exchange, redemption, liquidation,
conversion and repurchase of, such securities by the Corporation are subject to
restrictions on the Corporation contained in certain credit and financing
agreements of the Corporation and its Affiliates.
i. Fractional Shares. In the event the redemption or conversion
provisions provided in this Certificate result in the redemption or conversion
of less than the Liquidation Value of a whole share of Preferred Stock, the
Corporation may issue a fractional share to evidence the unredeemed or
unconverted portion of any such share.
Section 4.4. Common Stock. The Common Stock shall be subject to the
express terms of the Preferred Stock and any series thereof. The holders of
shares of Common Stock shall be entitled to one vote for each such share upon
all proposals on which the holders of Common
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Stock are entitled to vote. Except as otherwise provided by law or by the
resolution or resolutions adopted by the Board designating the rights, powers
and preferences of any series of Preferred Stock, the holders of Common Stock
shall have the exclusive right to vote for the members of the Board (the
"Directors") and for all other purposes. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the outstanding Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to any Preferred Stock Designation. The Corporation shall be
entitled to treat the Person in which name any share of its stock is registered
as the owner thereof for all purposes and shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the part of any other
person, whether or not the Corporation shall have notice thereof, except as
expressly provided by applicable law.
ARTICLE V
THE BOARD
To the extent not provided for in this Certificate of Incorporation,
the number, nominations, qualifications, tenure, vacancies and removal of the
Directors shall be as set forth in the Bylaws.
Section 5.1. Number, Election and Terms of Directors. The number of
Directors which shall constitute the entire Board shall be fixed from time to
time by a majority of the Directors then in office and shall be divided into
three classes: Class I, Class II and Class III; provided, however, that from and
after the first date as of which the Corporation has a class or series of
capital stock registered under the Securities and Exchange Act of 1934, as
amended, the number of Directors which shall constitute the entire Board shall
be not less than three. Each Director shall serve for a term ending on the third
annual meeting following the annual meeting of stockholders at which such
Director was elected; provided, however, that the Directors first elected to
Class I shall serve for a term expiring at the annual meeting of stockholders
next following the end of the calendar year 2000, the Directors first elected to
Class II shall serve for a term expiring at the annual meeting of stockholders
next following the end of the calendar year 2001, and the Directors first
elected to Class III shall serve for a term expiring at the annual meeting of
stockholders next following the end of the calendar year 2002. Each Director
shall hold office until the annual meeting of stockholders at which such
Director's term expires and, the foregoing notwithstanding, shall serve until
his or her successor shall have been duly elected and qualified or until his or
her earlier death, resignation or removal.
At such annual election, the Directors chosen to succeed those whose
terms then expire shall be of the same class as the Directors they succeed,
unless, by reason of any intervening changes in the authorized number of
Directors, the Board shall have designated one or more Directorships whose terms
then expires as Directorships of another class in order to more nearly achieve
equality of number of Directors among the classes.
In the event of any changes in the authorized number of Directors, each
Director then continuing to serve shall nevertheless continue as a Director of
the class of which he is a member until the expiration of his or her current
term, or his or her prior death, resignation or removal. The Board shall specify
the class to which a newly created Directorship shall be allocated.
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Election of Directors need not be by written ballot unless the Bylaws
shall so provide.
Section 5.2. Removal Of Directors. No Director of the Corporation shall
be removed from office as a Director by vote or other action of the stockholders
or otherwise except for cause, and then only by the affirmative vote of the
holders of a majority of the voting power of all outstanding shares of capital
stock of the Corporation generally entitled to vote in the election of
Directors, voting together as a single class.
Section 5.3. Vacancies. Subject to any requirements of law to the
contrary, newly created Directorships resulting from any increase in the number
of Directors and any vacancies on the Board resulting from death, resignation,
removal or other cause shall be filled by the affirmative vote of a majority of
the remaining Directors then in office, even though less than a quorum of the
Board. Any Director elected in accordance with the preceding sentence shall hold
office for the remainder of the full term of the class of Directors in which the
new Directorship was created or the vacancy occurred and until such Director's
successor shall have been elected and qualified or until his or her earlier
death, resignation or removal. No decrease in the number of Directors
constituting the Board shall shorten the term of any incumbent Director.
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board in accordance with the Bylaws.
ARTICLE VII
AMENDMENT OF CERTIFICATE OF INCORPORATION
Except as otherwise provided in this Certificate of Incorporation, the
Bylaws or by applicable law, the Corporation reserves the right at any time and
from time to time to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, and any other provisions authorized by the
laws of the State of Delaware at the time in force may be added or inserted, in
the manner now or hereafter prescribed by law; and, except as set forth in
Article XI, all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, Directors or any other persons whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article.
ARTICLE VIII
STOCKHOLDER ACTION BY WRITTEN CONSENT
Prior to the first date (the "Trigger Date") upon which SCF-III, L.P.
and SCF-IV, L.P., each a Delaware limited partnership (collectively, "SCF"), are
not in the aggregate the holders of record (directly or through their respective
Affiliates, as defined in Article XII hereof) of a majority of the outstanding
voting stock of the Corporation entitled to vote generally in the election of
Directors, any action required or permitted to be taken by the stockholders of
the Corporation may be taken without a meeting if a consent in writing, setting
forth the action so taken, is signed by the holders of outstanding stock having
not less than the minimum number of
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votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. On and after
the Trigger Date, any action required or permitted to be taken by the
stockholders of the Corporation must be taken at a duly held annual or special
meeting of stockholders and may not be taken by any consent in writing of such
stockholders.
ARTICLE IX
DELAWARE ANTITAKEOVER STATUTE
The provisions of Section 203 of the Delaware General Corporation Law
shall not be applicable to the Corporation.
ARTICLE X
ANTI-DILUTION
No holder of shares of capital stock of the Corporation shall have any
preemptive or other right to purchase or subscribe for or receive any shares of
capital stock of the Corporation, whether now or hereafter authorized, or any
warrants, options, bonds or debentures exchangeable for or carrying any right to
purchase any shares of capital stock of the Corporation.
ARTICLE XI
LIMITED LIABILITY OF DIRECTORS
A Director shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
except, if required by the DGCL, as amended from time to time, for liability (i)
for any breach of the Director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL or (iv) for any transaction from which the Director derived an improper
personal benefit. Neither the amendment nor repeal of this Article XI shall
eliminate or reduce the effect of this Article XI in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article XI,
would accrue or arise, prior to such amendment or repeal.
ARTICLE XII
RENOUNCEMENT OF BUSINESS OPPORTUNITIES
Section 12.1. Renouncement of Business Opportunities. The Corporation
hereby renounces any interest or expectancy in any business opportunity,
transaction or other matter in which any member of the SCF Group participates or
desires or seeks to participate in and that involves any aspect of the energy
equipment or services business or industry (each, a "Business Opportunity")
other than a Business Opportunity that (i) is presented to an SCF Nominee
solely in such person's capacity as a director of the Corporation and respect to
which no other member of the SCF Group (other than an SCF Nominee) independently
receives notice or otherwise identifies such Business Opportunity or (ii) is
identified by the SCF Group solely through the disclosure of information by or
on behalf of the Corporation (each Business Opportunity other than those
referred to in clauses (i) or (ii) are referred to as a "Renounced Business
Opportunity"). No Member of the SCF Group, including any SCF Nominee, shall have
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any obligation to communicate or offer any Renounced Business Opportunity to the
Corporation, and any member of the SCF Group may pursue a Renounced Business
Opportunity.
Section 12.2. Consent. Any Person purchasing or otherwise acquiring any
interest in shares of the capital stock of the Corporation shall be deemed to
have consented to these provisions.
Section 12.3. Interpretation.
As used in this Article XII, the following definitions shall
apply:
(i) "Affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under the Securities Exchange Act of 1934.
(ii) "SCF Group" means SCF III, L.P., SCF IV, L.P., any
Affiliate of SCF III, L.P. or SCF IV, L.P. (other than the
Corporation and its subsidiaries), any SCF Nominee, and any
portfolio company in which SCF III, L.P. or SCF IV, L.P. has an
equity investment (other than the Corporation),
(iii) "SCF Nominee" means any officer, director, employee
or other agent of any member of SCF III, L.P., SCF IV, L.P. or
any Affiliate of SCF III, L.P. or SCF IV, L.P. (other than the
Corporation or its subsidiaries) who serves as a Director
(including Chairman of the Board) of the Corporation.
Section 12.4. Amendment. Any proposed amendment to this Article XII
shall require the approval of at least 80% of the outstanding voting stock of
the Corporation entitled to vote generally in the election of Directors.
Section 12.5. Term. The provisions of this Article XII shall terminate
at such time as SCF III, L.P., SCF IV, L.P. and their Affiliates no longer own,
directly or indirectly, an aggregate of at least 20% of the then outstanding
Common Stock.
IN WITNESS WHEREOF, Oil States International, Inc. has caused this
Amended and Restated Certificate of Incorporation to be signed by its President
this ___ day of ____________________, 2001.
------------------------------------------
Douglas E. Swanson
President
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