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EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
ATP OIL & GAS CORPORATION
ARTICLE ONE
The name of the corporation is ATP Oil & Gas Corporation.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose or purposes for which the corporation is organized is the
transaction of any or all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act, as amended.
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 $.001 per share, and ten million (10,000,000) shares shall be
designated as Preferred Stock, par value $.001 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, 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
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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 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;
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(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
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.
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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.
4. RECAPITALIZATION. Upon the effectiveness of this Restated
Articles of Incorporation (the "Effective Time"), each issued share of
Common Stock of the Corporation shall be reclassified, changed and
converted into a number of shares of Common Stock equal to the quotient of
1 divided by 1.4; provided, however, that no fractional shares of Common
Stock to which any holder of Common Stock would otherwise be entitled
pursuant hereto (aggregating for this purpose all of the shares of Common
Stock owned of record by such shareholder) shall be issued. Outstanding
stock certificates registered in the name of each record holder thereof
that, prior to the Effective Time, represented issued shares of Common
Stock shall, after the Effective Time, represent a number of whole shares
of Common Stock equal to the product of (a) the quotient of 1 divided by
1.4, times (b) the number of shares of Common Stock such certificates
represented immediately prior to the Effective Time rounded down to the
nearest whole share until such certificates are presented to the
Corporation or its transfer agent for transfer or reissue in which event
the Corporation or its transfer agent shall issue stock certificates
representing the appropriate number of shares of Common Stock.
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.
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.
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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.
ARTICLE FIVE
An annual meeting of the shareholders shall be held at such times as may be
stated or fixed in accordance with the bylaws. Special meetings may only be
called (1) by the Chairman of the Board (if any), the President, the Board of
Directors, or such other person or persons as may be authorized in the articles
of incorporation or the bylaws or (2) by the holders of not less than fifty (50)
percent of all the shares entitled to vote at the proposed special meeting.
ARTICLE SIX
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 SEVEN
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 EIGHT
The address of the corporation's current registered office is 4600 Post Oak
Place, Suite 200, Houston, Texas 77027 and the name of the current registered
agent at such address is T. Paul Bulmahn.
ARTICLE NINE
The number of directors of the corporation shall be fixed by, or in the
manner provided by, the bylaws. The number of directors constituting the
current Board of Directors is three 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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T. Paul Bulmahn 4600 Post Oak Place, Suite 200
Houston, Texas 77027
Gerard J. Swonke 4600 Post Oak Place, Suite 200
Houston, Texas 77027
Carol E. Overbey 4600 Post Oak Place, Suite 200
Houston, Texas 77027
The right of shareholders to cumulative voting in the election of directors
is expressly prohibited.
ARTICLE TEN
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 Ten 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
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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.
ARTICLE ELEVEN
The Board of Directors is expressly authorized to adopt, amend and repeal
the bylaws. The corporation's shareholders are hereby expressly prohibited from
amending or repealing the bylaws.
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