Amended Exhibit B-4
to
Agreement and Plan of Merger
dated August 31, 1999
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
PEASE OIL AND GAS COMPANY
We, the undersigned, Patrick J. Duncan, President, and Virginia Cherry,
Secretary, of Pease Oil and Gas Company, a Nevada corporation, do hereby certify
as follows:
ONE: We are the duly elected and acting President and Secretary,
respectively, of Pease Oil and Gas Company (the "Corporation").
TWO: The Corporation's Articles of Incorporation were filed with the
Secretary of State of the state of Nevada on September 11, 1968 and were amended
on April 10, 1969, February 9, 1971, July 7, 1972, June 22, 1990, June 23, 1993,
June 29, 1993, August 12, 1993, August 16, 1993, July 5, 1994, November 1, 1994,
December 19, 1994, June 4, 1997, December 31, 1997, and December 1, 1998.
THREE: These Amended and Restated Articles of Incorporation constitute
an amendment and restatement of the original Articles of Incorporation filed
September 11, 1968, as amended in accordance with Nevada Revised Statute,
Section 78.403 (the "Act"), and supersede the Corpora tion's original Articles
of Incorporation and all Amendments and Supplements thereto or restatements
thereof.
FOUR: The Amended and Restated Articles of Incorporation were adopted
unanimously by the Board of Directors on August __, 1999, and by the vote of
stockholders at a Special Meeting held on ________ __, 1999. Stockholders
holding shares in the Corporation entitling them to exercise at least a majority
of the voting power for each class of the Corporation's securities required to
vote to amend and restate the Articles of Incorporation of the Corporation voted
in favor of the Amendment.
FIVE: The directors of the Corporation have adopted, and the
stockholders have duly approved the following resolution:
RESOLVED, that the Articles of Incorporation of the
Corporation shall be amended and restated to read in their entirety as
follows:
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ARTICLE I
Name
The name of the Corporation shall be: Radiant Energy, Inc.
ARTICLE II
Purposes and Powers
2.1. Purpose. The purpose for which the Corporation is organized is
to engage in any lawful business or businesses.
2.2. Powers. The Corporation shall have and may exercise all powers and
rights granted or otherwise provided under the General Corporation Law of Nevada
as in effect from time to time and any successor law.
ARTICLE III
Capital
3.1. Authorized Capital. The aggregate number of shares which the
Corporation shall have authority to issue shall be 150,000,000 shares of common
stock, par value $0.001 per share ("Common Stock"), and 110,000,000 shares of
preferred stock, without par value ("Preferred Stock"). The designations,
preferences, limitations and relative rights of shares of each class of stock
shall be as set forth below.
3.2. Common Stock. The holders of Common Stock shall be entitled to
receive the net assets of the Corporation upon dissolution or liquidation,
subject to the payment of any preferences applicable to the outstanding
Preferred Stock. All Common Stock, when duly issued, shall be fully paid and
nonassessable. Each holder of Common Stock shall have one vote for each share of
stock standing in his name on the books of the Corporation and entitled to vote,
except that in the election of directors each holder of Common Stock shall have
as many votes for each share held by him as there are directors to be elected by
the Common Stockholders and for whose election the stockholder has a right to
vote. Cumulative voting shall not be permitted in the election of directors or
otherwise. The holders of Common Stock shall be entitled to receive dividends as
they may be declared from time to time by the Board of Directors.
3.3. Preferred Stock. The Corporation may issue the Preferred Stock
from time to time in one or more series with such distinctive designations,
rights, preferences and limitations as the Board of Directors shall determine.
The Board of Directors hereby is expressly vested with the authority to fix and
determine the relative rights and preferences of each such series of Preferred
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Stock to the full extent permitted by these Articles of Incorporation and the
General Corporation Law of Nevada in respect to the following:
(a) The rate of dividend, if any, the time of payment of
dividends, when the dividends are cumulative, and the date from which
any dividends shall accrue;
(b) Whether shares may be redeemed and if so, the redemption
price and the terms and conditions of redemption;
(c) The amount payable upon shares in event of either
voluntary or involuntary liquidation;
(d) Sinking fund or other provisions, if any, for the
redemption or purchase of shares;
(e) The terms and conditions on which shares may be converted,
if the shares of any series are issued with the privilege of
conversion, provided, that the price at which preferred shares may or
shall be converted must be fixed at the time of issuance of Preferred
Stock;
(f) Voting powers, if any; and
(g) Any other rights or privileges authorized or permitted
under the General Corporation Law of Nevada.
Notwithstanding the fixing of the number of shares constituting the particular
series upon the issuance thereof, the Board of Directors may at any time
thereafter authorize the issuance of additional shares of the same series or may
reduce the number of shares constituting such series.
The Board of Directors expressly is authorized to vary the provisions
relating to the foregoing matters between the various series of Preferred Stock,
but in all other respects the shares of each series shall be of equal rank with
each other, regardless of series. All Preferred Stock in any one series shall be
identical in all respects.
3.4. No Preemptive Rights. No stockholder of the Corporation shall be
entitled as of right to acquire unissued shares of the Corporation or securities
convertible into such shares or carrying a right to subscribe for or to acquire
such shares, unless expressly provided to holders of Preferred Stock at the time
of issuance.
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ARTICLE IV
Quorum and Voting Requirements for Stockholders' Meetings
4.1. Quorum. The holders of a majority of the issued and outstanding
shares of any class entitled to be voted on a matter shall constitute a quorum
of that class of stock for action on that matter at any meeting of stockholders.
4.2. Voting. Except as is otherwise required by the General Corporation
Law of Nevada, action by stockholders on a matter other than the election of
directors is approved if a quorum of stockholders is present and if the votes
cast by holders of the class of stock favoring the action exceed the number of
votes cast within the class of voting stock opposing the action; provided,
however, that with respect to any of the following actions to be taken by
stockholders of the Corporation, the approval by holders of a majority of the
outstanding shares of stock entitled to vote on such matters shall be required:
(i) To sell, lease, exchange or otherwise dispose of all or
substantially all of the property and assets of the Corporation, with
or without its goodwill, other than in the usual and regular course of
its business.
(ii) To approve a plan of merger or share exchange if
stockholders' approval is required.
(iii) To dissolve the Corporation.
4.3. Change in Quorum or Voting Requirements. Any amendment to these
Articles of Incorporation adding, changing or deleting a greater quorum or
voting requirement for stockholders shall meet the same quorum requirement and
be adopted by the same vote and voting group required to take action under the
quorum and voting requirements then in effect or proposed to be adopted,
whichever is greater.
ARTICLE V
Board of Directors
5.1. Board of Directors. The corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, a Board of Directors. The terms of the directors
shall be staggered in accordance with the following provisions.
5.2. Number. The number of directors of the Corporation shall be no
fewer than five nor more than eleven, as specified or fixed in accordance with
the Bylaws. The directors, other than those who may be elected by the holders of
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any series of Preferred Stock of the Corporation, shall be classified, with
respect to the term for which they severally hold office, into three classes, as
nearly equal in number as possible. The Class I directors shall serve for a term
expiring at the annual meeting of stockholders to be held in the first year
following adoption of these Amended and Restated Articles of Incorporation, the
Class II directors shall serve for a term expiring at the annual meeting of
stockholders to be held in the second year following adoption of these Amended
and Restated Articles of Incorporation, and the Class III directors shall serve
for a term expiring at the annual meeting of stockholders to be held in 2002.
the third year following adoption of these Amended and Restated Articles of
Incorporation. At each annual meeting of stockholders, the successor or
successors of the class of directors whose term expired at that meeting shall be
elected and shall hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election. In
every case, a director shall continue to serve until the end of the director's
term or until the director's successor is duly elected and qualified or until
the director's earlier resignation or removal.
5.3. Removal. Subject to the rights, if any, of any series of Preferred
Stock to elect directors and to remove any director whom the holders of any such
stock have the right to elect, any director (including persons elected by
directors to fill vacancies in the Board of Directors) may be removed from
office only for cause and only by the stockholders at a meeting called for that
purpose. At least 30 days prior to any meeting of stockholders at which it is
proposed that any director be removed from office, written notice of such
proposed removal shall be sent to the director whose removal shall be considered
at the meeting. The term "cause" with respect to the removal of any director
shall mean (i) conviction of a felony or plea of nolo contendere after a charge
of felony, (ii) declaration of unsound mind by an order of a court of competent
jurisdiction, (iii) gross dereliction of duty, including action taken which is
in material conflict with the best interests of the Corporation, as determined
by a majority of the disinterested directors, (iv) commission of any action
involving moral turpitude, or (v) commission of an action which constitutes
intentional misconduct or a knowing violation of law, if such action in either
event results in a material injury to the Corporation.
ARTICLE VI
Limitation on Liability
There shall be no personal liability, either direct or indirect, of any
director of the Corporation to the Corporation or to its stockholders for
monetary damages for any breach or breaches of fiduciary duty as a director;
except that this provision shall not eliminate the liability of a director to
the Corporation or to its stockholders for monetary damages for any breach, act,
omission or transaction as to which the General Corporation Law of Nevada
prohibits expressly the elimination of liability, such as intentional
misconduct, fraud, or a knowing violation of law, or for the payment of any
dividend in violation of Section 78.300 of the General Corporation Law of
Nevada.
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ARTICLE VII
Indemnification
The Corporation shall, to the fullest extent permitted by Nevada law in
effect from time to time, indemnify any person against all liability and expense
(including attorneys' fees) incurred by reason of the fact that he is or was a
director or officer of the Corporation or, while serving as a director or
officer of the Corporation, he is or was serving at the request of the
Corporation as a director, officer, partner or trustee of, or any similar
managerial or fiduciary position of, or as an employee or agent of, another
Corporation, partnership, joint venture, trust, association, or other entity.
Expenses (including attorneys' fees) incurred in defending an action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding to the fullest extent and under the
circumstances permitted by Nevada law. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
fiduciary or agent of the Corporation against any liability asserted against and
incurred by such person in any such capacity or arising out of such person's
position, whether or not the Corporation would have the power to indemnify
against such liability under the provisions of this Article VII. The
indemnification provided by this Article VII shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under these Articles
of Incorporation, any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise, and shall inure to the benefit of their heirs,
executors and administrators. The provisions of this Article VII shall not be
deemed to preclude the Corporation from indemnifying other persons from similar
or other expenses and liabilities as the Board of Directors or the stockholders
may determine in a specific instance or by resolution of general application.
ARTICLE VIII
Conflicts of Interest
No contract or other transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any
Corporation, firm, entity or association in which one or more of its directors
or officers are directors or officers or are financially interested, shall be
either void or voidable solely due to such financial interest or association or
solely because any such director or officer is present at the meeting of the
Board of Directors or a committee thereof which authorizes or approves the
contract or transaction, or because the vote or votes of common or interested
directors are counted for such purpose, so long as either (i) the fact of the
common directorship or financial interest is disclosed or known to the
Corporation's Board of Directors or committee and noted in the Minutes and the
Board or committee authorizes, approves, or ratifies the contract or transaction
in good faith by a vote sufficient for the purpose without counting the vote or
votes of such director or directors; (ii) the fact of the common directorship or
financial interest is disclosed or known to the stockholders, and they approve
or ratify the contract or transaction in good faith by a majority vote or
written consent of the stockholders holding a majority of the shares entitled to
vote and the votes of the common or interested directors or officers shall be
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counted in any such vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation at the time it is authorized or
approved. The common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves, or ratifies a contract or transaction, and
if the vote of the common or interested directors is not counted at such
meeting, then a majority of the disinterested directors may authorize, approve
or ratify a contract or transaction.
ARTICLE IX
Combinations With Interested Stockholders
Neither the Corporation nor its stockholders shall be subject to, nor
entitled to assert the rights or privileges of Sections 78.411 through 78.444 of
the General Corporation Law of Nevada, as the same may be amended from time to
time.
ARTICLE X
Bylaws
The directors of the Corporation are authorized to adopt, confirm,
ratify, alter, amend, rescind and repeal Bylaws for the Corporation or any
portion or provision thereof from time to time.
SIX: The foregoing resolutions adopting the Amended and Restated
Articles of Incorporation are true, correct and exact copies of the resolutions
adopted effective ________ __, 2000, and they are currently in full force and
effect and have not been altered, amended, modified, rescinded or revoked.
SEVEN: Upon filing of these Amended and Restated Articles of
Incorporation with the Nevada Secretary of State, all 105,828 outstanding shares
of the Corporation's Series B 5% PIK Convertible Preferred Stock, the only
outstanding preferred stock of the Corporation, shall automatically be converted
into 8,865,665 shares of Common Stock pursuant to written consent of all
holders. There are no outstanding shares of Preferred Stock and no series of
Preferred Stock has been designated for issuance.
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IN WITNESS WHEREOF, the undersigned President and Secretary of Pease
Oil and Gas Company have executed this Amended and Restated Articles of
Incorporation this ____ day of _____________, 2000.
PEASE OIL AND GAS COMPANY
(S E A L)
By ________________________________________
Patrick J. Duncan, President
By ________________________________________
Virginia Cherry, Secretary
STATE OF COLORADO )
) ss.
COUNTY OF GRAND )
On this ____ day of __________. 1999, personally appeared before me, a
Notary Public, in and for said county and state, Patrick J. Duncan and Virginia
Cherry, known to me to be the President and Secretary, respectively, of the
Corporation and stated that they executed the foregoing Amended and Restated
Articles of Incorporation and upon oath each did depose and say that they are
the officers of the Corporation as above designated; that they are acquainted
with the seal of the Corporation and that the seal affixed to the instrument is
the corporate seal of the Corporation; that the signatures to the instrument
were made by officers of the Corporation as indicated after signatures; and that
the Corporation executed the instrument freely and for the uses and purposes
therein mentioned.
WITNESS my hand and official seal.
(S E A L)
-------------------------------------------
Notary Public in and for said
County and State
H-183139.2
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