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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ENCORE ACQUISITION PARTNERS, INC.
Encore Acquisition Partners, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
hereby certifies as follows:
1. The name of the corporation is Encore Acquisition Partners, Inc.
Encore Acquisition Partners, Inc. was originally incorporated under the name
Pentacle Petroleum, Inc., and the original Certificate of Incorporation of the
corporation was filed with the Secretary of State of the State of Delaware on
April 22, 1998.
2. This Amended and Restated Certificate of Incorporation has been duly
adopted by the stockholders of the corporation in accordance with Sections 242
and 245 of the General Corporation Law of the State of Delaware and restates and
integrates and further amends the provisions of the Certificate of Incorporation
of the corporation, including the amendment thereto filed with the Secretary of
State of the State of Delaware on May 1, 1998.
3. The text of the Amended and Restated Certificate of Incorporation as
heretofore amended or supplemented is hereby restated and further amended to
read in its entirety as follows:
FIRST: The name of the corporation is ENCORE ACQUISITION PARTNERS, INC.
(the "Corporation").
SECOND: The address of its registered office is the State of Delaware
is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle, Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: 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 General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 376,000 shares, consisting solely
of (i) 375,000 shares of Common Stock, par value $.01 per share (the "Common
Stock"), consisting of 75,000 shares of Class A Common Stock (the "Class A
Common Stock") and 300,000 shares of Class B Common Stock (the "Class B Common
Stock"), and (ii) 1,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock").
The following is a statement of the designations and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, of the classes of stock of the Corporation:
(a) Common Stock. Except as otherwise provided herein or as otherwise
required by applicable law, all shares of Common Stock shall be identical in all
respects and shall entitle the
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holders thereof to the same rights and privileges and shall be subject to the
same qualifications, limitations and restrictions.
(i) Distributions. After the requirements with respect to preferential
dividends on Preferred Stock, if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts and subject further to any other conditions which may
be fixed in accordance with the provisions of this Certificate of
Incorporation, then, but not otherwise, the holders of Class A Common
Stock and Class B Common Stock shall be entitled to receive, when, as
and if declared by the Board of Directors, out of funds legally
available therefor, Distributions in the following priority:
(A) The holders of the Class B Common Stock shall be entitled
to receive, as a class, all Distributions, ratably based upon the
aggregate Unpaid Yield of the shares of Class B Common Stock held by
each such holder, until the holders of Class B Common Stock receive, as
a class, Distributions equal to the aggregate Unpaid Yield on all
outstanding shares of Class B Common Stock. All Distributions made
pursuant to this Article FOURTH paragraph (a)(i)(A) to holders of Class
B Common Stock shall constitute a payment of Yield on Class B Common
Stock.
(B) After the Distributions described in Article FOURTH
paragraph (a)(i)(A) above have been made, the holders of Class B Common
Stock shall be entitled to receive, as a class, all Distributions,
ratably based upon the aggregate Unreturned Original Cost of the shares
of Class B Common Stock held by each such holder, until the holders of
Class B Common Stock receive, as a class, Distributions equal to the
aggregate Unreturned Original Cost of all outstanding shares of Class B
Common Stock. All Distributions made pursuant to this Article FOURTH
paragraph (a)(i)(B) to holders of Class B Common Stock shall constitute
a return of Original Cost of Class B Common Stock.
(C) After the Distributions described in this Article FOURTH
paragraphs (a)(i)(A) and (a)(i)(B) above have been made, the holders of
Common Stock shall be entitled to receive all Distributions, ratably
based upon the number of outstanding shares of Common Stock held by
each such holder.
(ii) Conditions Precedent. No Distribution shall be paid to the holders
of Class B Common Stock pursuant to Article FOURTH paragraph (a)(i)(A)
or (a)(i)(B) above in any form of consideration other than cash unless
the holders of 75% of the Class B Common Stock outstanding at the time
of the Distribution approve such Distribution (including the valuation
of the consideration being distributed thereby), and no Distribution
shall be paid to said holder of Common Stock pursuant to Article FOURTH
paragraph (a)(i)(C) above until the holders of Class B Common Stock
have received (either in cash or other consideration, the form and
value of which shall have been approved as provided above) all
Distributions to which they are entitled pursuant to Article FOURTH
paragraphs (a)(i)(A) and (a)(i)(B) above.
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(iii) Liquidation. In the event of any voluntary or involuntary
Liquidation of the Corporation, after payment or provision for payment
of the debts and other liabilities of the Corporation, the holders of
shares of Common Stock shall be entitled to share in the remaining net
assets of the Corporation in the manner described in Article FOURTH
Section (a)(i) above.
(iv) Notice. Written notice of any Distribution, stating the payment
date or dates when and the place or places where the amounts
distributable in such circumstances shall be payable, shall be given by
first class mail, postage prepaid, not less than fifteen days prior to
any payment date stated therein, to the holders of record of the shares
of Common Stock at their respective addresses as the same shall appear
in the records of the Corporation.
(v) Subdivisions and Recombinations. The Corporation shall not in any
manner subdivide (by stock split, stock dividend or otherwise), or
combine (by reverse stock split or otherwise) the outstanding Common
Stock of any class unless the outstanding Common Stock of all other
classes outstanding shall be proportionately subdivided or combined.
All such subdivisions and combinations shall be payable only is Class A
Common Stock to the holders of Class A Common Stock and in Class B
Common Stock to the holders of Class B Common Stock. In no event shall
a stock split or stock dividend constitute a payment of Yield or a
return of Original Cost.
(vi) Reorganizations. In the event of any capital reorganization of the
Corporation, any reclassification of the stock of the Corporation
(other than a change in par value, or from no par value to par value,
or from par value to no par value, or as a result of a stock dividend
or subdivision, split-up or combination of shares), or any
consolidation or merger of the Corporation, of the share of Class B
Common Stock (and/or the number of shares and/or such shares'
Unreturned Original Cost and Unpaid Yield) shall after such
reorganization, reclassification, consolidation, or merger be adjusted
or converted into the kind and number of shares of stock or other
securities or property of the Corporation or of the Corporation
resulting from such consolidation or surviving such that, each holder's
shares of Class B Common Stock retain such value, voting power,
preferences and relative rights as it had or was entitled to prior to
such reorganization, reclassification, consolidation or merger. The
provisions of this clause shall similarly apply to successive
reorganizations, reclassifications, consolidations or mergers.
(vii) If any event occurs of the type contemplated by the provisions of
this Article FOURTH paragraph (a)(iv) but not expressly provided for by
such provisions (including, without limitation, the granting of stock
appreciation rights, phantom stock rights or other rights with equity
features), then the Corporation's Board of Directors shall make an
appropriate increase or decrease in the number of shares of Class B
Common Stock (and a reduction or increase in such shares' Unreturned
Original Cost and Unpaid Yield) so as to protect the rights of the
holders of the Class B Common Stock.
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(viii) Voting.
(A) Except as may otherwise be required by law, this
Certificate of Incorporation, the Bylaws, the Stock Purchase Agreement
or the Stockholders' Agreement, the holders of Class A Common Stock and
the holders of Class B Common Stock shall vote together as a single
class on all matters to be voted on by the Corporation's stockholders.
Each holder of Class A Common Stock and Class B Common Stock shall be
entitled to one (1) vote (or a fraction thereof) for each share (or
fraction thereof) of Class A Common Stock and Class B Common Stock
owned by such holder.
(ix) Certain Covenants and Restrictions. So long as any shares of Class
B Common Stock are outstanding, the Corporation shall not, without the
affirmative consent or approval of the holders of 75% of the Class B
Common Stock:
(A) in any manner authorize, create, designate, issue or sell
any class or series of capital stock of the Corporation (including any
shares of treasury stock) or rights, options, warrants or other
securities convertible into or exercisable or exchangeable for capital
stock or any debt security which by its terms is convertible into or
exchangeable for any equity security or has any other equity
participation feature or any security that is a combination of debt and
equity, which, in each case as to the equity or convertible component
thereof, as to the payment of dividends, distribution of assets or
redemptions, including, without limitation, distributions to be made
upon the liquidation, dissolution or winding up of the Corporation or a
merger, consolidation or sale of the assets thereof, is senior to or
pari passu with the Class B Common Stock;
(B) reclassify any securities of the Corporation into shares
of any class or series of capital stack of the Corporation (1) ranking,
either as to payment of dividends, distributions of assets or
redemptions, including, without limitation, distributions to be made
upon the liquidation, dissolution or winding up of the Corporation or a
merger, consolidation or sale of the assets thereof, senior to or pari
passu with the Class B Common Stock or (2) which in any manner
adversely affects the rights of the holders of Class B Common Stock in
their capacity as such;
(C) in any manner authorize, issue or sell any shares of
Common Stock other than as contemplated by the Stock Purchase
Agreement;
(D) reclassify, cancel or in any manner alter or change the
terms of the Class B Common Stock;
(E) amend, repeal or modify any provision of this Certificate
of Incorporation or Bylaws that adversely affects the rights of the
Class B Common Stock;
(F) fail to comply with any of the covenants of the
Corporation as set forth in the Stock Purchase Agreement;
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(G) in any manner subdivide (by stock split, stock dividend or
otherwise) or combine (by reverse stock split or otherwise) the
outstanding Common Stock; or
(H) make any Distributions on any capital stock.
(x) Definitions. In addition to the definitions set forth elsewhere
herein, the following terms shall have the meanings indicated:
"Business day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in Fort Worth, Texas are authorized or
obligated by law or executive order to close.
"Distributions" means all distributions (including, without limitation,
payment of yield) made by the Corporation to holders of Common Stock, whether in
cash, property or Securities of the Corporation and whether by dividend,
liquidating distribution or otherwise; provided that none of the following
events shall be considered a Distribution: (i) any redemption or repurchase by
the Corporation of Common Stock held by a present or former employee of the
Corporation or any of its subsidiaries pursuant to a stockholders' agreement,
stock repurchase agreement, stock option agreement, management agreement or
other repurchase agreement, arrangement, option or obligation approved by the
board of directors of the Corporation or (ii) any recapitalization, subdivision
(including stock dividend and stock splits) or combination (including reverse
stock splits) of Common Stock.
"Liquidation Preference" means, with respect to any share of Class B
Common Stock, as of any particular date, the sum of its Unpaid Yield and
Unreturned Original Cost.
"Original Cost" means, with respect to any share of Class B Common
Stock, as of any particular date, the amount originally paid for such share when
it was issued plus all additional amounts contributed with respect to such share
pursuant to any valid capital call on such share made pursuant to Article III of
the Stock Purchase Agreement among the Corporation and its stockholders dated as
of August 18, 1998 (the "Stock Purchase Agreement").
"Securities" shall mean all shares of capital stock of the Corporation,
all securities convertible into or exchangeable for shares of capital stock of
the Corporation and all options, warrants and other rights to purchase or
otherwise acquire from the Corporation shares of such capital stock.
"Stockholders' Agreement" shall mean that stockholders' agreement among
the Corporation and its stockholders dated as of August 18, 1998, as such
Stockholders' Agreement may be amended from time to time.
"Unpaid Yield" means, as of any time of determination with respect to
any share of Class B Common Stock, an amount equal to the excess, if any, of (i)
the aggregate Yield accrued and accumulated on such share as of such time over
(ii) the aggregate amount of Distributions made by the Corporation prior to such
time that constitute payment of Yield on such share pursuant to Article FOURTH
paragraph (e)(i)(A), above.
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"Unreturned Original Cost" means, as of any time of determination with
respect to any share of Class B Common Stock, an amount equal to the excess, if
any, of (i) the Original Cost of such share over (ii) the aggregate amount of
Distributions made by the Corporation prior to such time that constitute a
return of Original Cost of such share pursuant to Article FOURTH paragraph
(a)(i)(B), above.
"Yield" shall mean, with respect to each share of Class B Common Stock,
the amount accruing cumulatively on a daily basis on the, Unreturned Original
Cost on such share at a rate of 7% per annum, which amount shall be calculated
on a compounding basis with compounding occurring on the last Business Day of
July of each year.
(b) Preferred Stock.
Shares of Preferred Stock may be issued from time to time in one or
more series as from time to time may be determined by the Board of Directors of
the Corporation. Each series shall be distinctly designated. The Board of
Directors of the Corporation is hereby expressly granted authority to fix, by
resolution or resolutions adopted prior to the issuance of any shares of each
particular series of Preferred Stock, the designation, powers, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, if any, of such series,
including, but without limiting the generality of the foregoing, the following:
(i) the designation of, and the number of shares of Preferred Stock
which shall constitute, the series, which number may by increased
(except as otherwise fixed by the Board of Directors, and in any event
not above the total number of authorized shares of the class) or
decreased (but not below the number of shares thereof then outstanding)
from time to time by action of the Board of Directors;
(ii) the rate and times at which (or the method of determination
thereof), and the terms and conditions upon which dividends, if any, on
shares of the series shall be paid, the nature of any preferences or
the relative rights of priority of such dividends to the dividends
payable on any other class or classes of stock of the Corporation or on
any other series of Preferred Stock, and a statement whether such
dividends shall be cumulative;
(iii) whether shares of the series shall be convertible into or
exchangeable for shares of capital stock or other securities or
property of the Corporation or of any other corporation or entity, and,
if so, the terms and conditions of such conversion or exchange,
including any provisions for the adjustment of the conversion or
exchange rate in such events as the Board of Directors shall determine;
(iv) whether shares of the series shall be redeemable, and, if so, the
terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount and type
of consideration payable in cash of redemption, which amount may vary
under different conditions and at different redemption dates;
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(v) the rights, if any, of the holders of shares of the series upon
voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up of the
Corporation;
(vi) whether shares of the series shall have a sinking fund or purchase
account for the redemption or purchase of shares of the series, and, if
so, the terms, conditions and amount of such sinking fund or purchase
account;
(vii) whether shares of the series shall have voting rights in addition
to the voting rights provided by law, which may, without limiting the
generality of the foregoing, include (A) the right to more or less than
one veto per share on any or all matters voted upon by the
Corporation's stockholders and (B) the right to vote, as a series by
itself or together with other series of Preferred Stock or together
with all series of Preferred Stock as a class or with the Common Stock
as a class, upon such matters, under such circumstances and upon such
conditions as the Board of Directors may fix, including, without
limitation, the right, voting as a series by itself or together with
other series of Preferred Stock or together with all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation in the event there shall have been a default in the payment
of dividends on any one or more series of Preferred Stock or under such
other circumstances and upon such conditions as the Board of Directors
may determine; and
(viii) any other powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions, of shares of that series.
The relative powers, preferences and rights of each series of Preferred Stock in
relation to the powers, preferences and rights of each other series of Preferred
Stock shall, in each case, be as fixed from time to time by the Board of
Directors in the resolution or resolutions adopted pursuant to the authority
granted in this subsection (b), and the consent, by class or series vote or
otherwise, of the holders of Preferred Stock or such of the series of the
Preferred Stock as are from time to time outstanding shall not be required for
the issuance by the Corporation of any other series of Preferred Stock, whether
the powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers, preferences
and rights of such outstanding series, or any of them; provided, however, that
the Board of Directors may provide in such resolution or resolutions adopted
with respect to any series of Preferred Stock that the consent of the holders of
a majority (or such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be required for the
issuance of any or all other series of Preferred Stock.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) Management. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
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(b) Number of Directors. Subject to the rights of the holders of Class
B Common Stock or any series of Preferred Stock to elect additional directors
under specified circumstances, the number of directors of the Corporation shall
initially be established at one, but thereafter may be changed to any number not
less than one nor more than nine as fixed from time to time by or pursuant to
the Bylaws of the Corporation. Each director, other than a director who may be
elected by the holders of Class B Common Stock or any series of Preferred Stock
under specified circumstances, shall hold office until his successor is elected
and qualified or until his earlier resignation or removal. Election of directors
need not be by written ballot unless the Bylaws of the Corporation so provide.
(c) Initial Director. The name and mailing address of the person who is
to serve as director until the first annual meeting of the holders of capital
stock of the Corporation or until his successor is elected and qualified is I.
Jon Brumley, 201 Main Street, Suite 1455, Fort Worth, Texas 76102.
(d) Bylaws. In furtherance and not is limitation of the powers
conferred by law, the Board of Directors is expressly authorized, by unanimous
approval, to adopt, alter, amend and repeal the Bylaws of the Corporation,
subject to the power of the stockholders of the Corporation to adopt, alter,
amend and repeal the Bylaws.
(e) Powers of Directors. In addition to the powers and authority
hereinbefore or by statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation, subject, nevertheless, to the
provisions of the statutes of Delaware, this Certificate of Incorporation and
any Bylaws adopted by the stockholders; provided, however, that no Bylaws
thereafter adopted by the stockholders shall invalidate any prior act of the
directors which would have been valid if such Bylaws had not been adopted.
SIXTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such manner as the said court directs. If a majority in number
representing three fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise arrangement and the said reorganization shall, if sanctioned by the
court to which the said application has been made, be binding on all the
creditors or class of creditors and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
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SEVENTH: (a) Elimination of Certain Liability of Directors. To the
fullest extent permitted by the Delaware General Corporation Law as the same
exists or may hereafter be amended, a director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of duty as a director. Without limiting the foregoing in any respect,
a director of the Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of duty as a director,
except 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 Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. If the Delaware
General Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended. Any
repeal or modification of this provision shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
(b) Indemnification and Insurance.
(i) Right to Indemnification. (A) Each person who was or is made a
party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the Corporation, or serves, in any
capacity, any corporation, partnership or other entity is which the
Corporation has a partnership or other interest, including service with
respect to employee benefit plans, whether the basis of such proceeding
is alleged action in an official capacity as a director or officer or
in any other capacity while serving as a director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but, in case of any such amendment, only
to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid or to be paid in settlement) reasonable
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of his or her heirs,
executors and administrators, and (B) the Corporation shall indemnify
and hold harmless in such manner any person designated by the Board of
Directors, or any committee thereof, as a person subject to this
indemnification provision, and who was or is made a party or is
threatened to be made a party to a proceeding by reason of the fact
that he, she or a person of whom he or she is the legal representative,
is or was serving at the request of the Board of Directors of the
Corporation as a director, officer, employee or agent of another
corporation or a partnership, joint venture, trust or other enterprise
whether such request is made before or after the acts taken or
allegedly taken or events occurring or allegedly occurring which give
rise to such proceeding; providers however, that except as provided in
subsection (b)(ii) of this Section, the Corporation shall indemnify any
such person seeking indemnification pursuant to this subsection in
connection with a proceeding (or part thereof) initiated by
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such person only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation. The right to indemnification
conferred herein shall be a contract right based upon an offer from the
Corporation which shall be deemed to have been made to a person subject
to subsection (b)(i)(A) on the date hereof and to a person subject to
subsection (b)(i)(B) on the date designated by the Board of Directors,
shall be deemed to be accepted by such person's service or continued
service as a director or officer of the Corporation for any period
after the offer is made and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding is
advance of its final disposition; provided, however, that if the
Delaware General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as the
director or officer (and not in any other capacity in which service was
or is rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in advance of
the final disposition of a proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees
or agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(ii) Right of Claimant to Bring Suit. If a claim under Section (b)(i)
of this Article is not paid in full by the Corporation within thirty
days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim and, if successful in whole
or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred
in defending any proceeding is advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct
which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made
a determination prior to the commencement of such notion that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense of the action or
create a presumption that the claimant has not met the applicable
standard of conduct.
(iii) Nonexclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Section shall not be exclusive
of any right which any person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise.
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(iv) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any such expense, liability or loss,
whether or not the corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law.
(v) Severability. If any subsection of this Section (b) shall be deemed
to be invalid or ineffective in any proceedings, the remaining
subsections hereof shall not be affected and shall remain in full force
and effect
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
NINTH: Upon the filing of this Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware (the
"Effective Time") and without any action of the holders of the Corporation's
outstanding Common Stock:
(1) Each outstanding share of Series A Common Stack, par value
$0.01 per share ("Current Series A Common Stock"), shall be
automatically reclassified as and changed and converted into
one share of Class A Common Stock ("New Class A Common
Stock"), of the Corporation.
(2) Each outstanding share of Series B Common Stock, par value
$0.01 per share ("Current Series B Common Stock"), shall be
automatically reclassified as and changed and converted into
one share of Class B Common Stock ("New Class B Common
Stock"), of the Corporation.
(3) Each certificate that represents shares of Current Series A
Common Stock or Current Series B Common Stock outstanding
immediately prior to the Effective Time shall thereafter be
deemed to represent the same number of shares of New Class A
Common Stock or New Class B Common Stock, as the case may be.
Each person who is a holder of record of outstanding shares of
Current Series A Common Stock or Current Series B Common Stock
at the Effective Time shall thereafter be entitled to
surrender to the Corporation a certificate or certificates
representing such shares and shall be entitled to receive
therefore a certificate or certificates representing the
number of shares of New Class A Common Stock or New Class B
Common Stock, as the case may be, represented by the
surrendered certificate or certificates.
TENTH: The Corporation elects not to be governed by Section 203 of the
General Corporation Law of the State of Delaware.
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<PAGE> 12
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed by I. Jon Brumley, its authorized officer, this
day of August 17, 1998.
ENCORE ACQUISITION PARTNERS, INC.
By:/s/ I. JON BRUMLEY
----------------------------------------
I. Jon Brumley
Chairman of the Board and
Chief Executive Officer
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