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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
UNIT CORPORATION
Unit Corporation a corporation organized and existing under the laws of the
State of Delaware hereby certifies as follows:
1. The name of the corporation is Unit Corporation (hereinafter the
"Corporation"). The Corporation was originally incorporated under the same name,
and the original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on July 28, 1986.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State if Delaware, this Restated Certificate if Incorporation restates and
integrates and further amends the provisions of the Certificate of Incorporation
of the Corporation.
3. The text of the Restated Certificate of Incorporation as heretofore
amended and supplemented is hereby restated and further amended to read in its
entirety as follows:
ARTICLE ONE
The name of the corporation (hereinafter called the "Corporation") is UNIT
CORPORATION
ARTICLE TWO
The address of the Corporation's registered office in the State of Delaware
is 1013 Centre Road, City of Wilmington, 19805, County of New Castle. The name
of its registered agent at such address is The Prentice-Hall Corporation System,
Inc.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted by the
Corporation are to engage in any lawful act or activity for which corporations
may be organized under The General Corporation Law of the State of Delaware,
including but not limited to:
a) To enter into lawful arrangement for sharing profits, union of
interest, reciprocal association or cooperative association with any
corporation, association, partnership, individual or other legal entity,
for the carrying on of any business and to enter into any general or
limited partnership for the carrying on of any business;
b) To engage in an oil, gas and mineral business including, but not
limited to, exploration for, extraction and development of, and gathering,
transporting, processing and marketing of, oil, gas and other minerals, and
products thereof, and the acquisition and disposition, in any manner,
of oil and gas and mineral properties, rights and interest; and
c) To engage in contract drilling services for third parties, whether
affiliated or unaffiliated with the Corporation, and to provide other
services and to supply materials, equipment, labor and supplies in
connection with the drilling, testing, completing and equipping of oil and
gas wells.
ARTICLE FOUR
The aggregate number of shares of all classes of stock which the
corporation shall have authority to issue is 80,000,000, 75,000,000 of which
shall be Common Stock of the par value of $.20 per share (hereinafter called
"Common Stock") and 5,000,000 of which shall be Preferred Stock of the par value
of $1.00 per share (hereinafter called "Preferred Stock"). The powers,
preferences, privileges, voting and other special or relative rights, and the
qualifications, limitations or restrictions thereof, granted to or imposed upon
the shares of Common Stock and Preferred Stock shall be as fixed below:
1. Common Stock (a) The Common Stock shall not be subject to
classification or reclassification by the Board of Directors, and shall
have the rights and terms hereinafter specified, subject to the terms of
any other stock provided in the charter pursuant to classification or
reclassification by the Board of Directors or otherwise in accordance with
law.
(b) Common Stock shall be entitled to one vote per share. No holder
of any Common Stock of this Corporation shall have cumulative voting
rights.
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(c) There shall be no preemptive rights in the holders of shares of
Common Stock with respect to subscribing for or purchasing any part of any
new or additional issue or sale or reservation of stock or securities of
any class or kind whatsoever.
(d) Subject to the provisions of law, dividends may be paid on the
Common Stock of the Corporation at such time and in such amounts as the
Board of Directors may deem advisable.
2. Preferred Stock. The Board of Directors of the Corporation shall be
authorized, without action by the shareholders, to issue such Preferred
Stock from time to time in one or more series. The Board may also fix for
each series the number of shares, designation, liquidation and dividend
rights, preferences, voting rights, redemption rights and any other rights,
restrictions and qualifications or sinking fund provisions.
a) The authority of the Board of Directors with respect
to each series shall include, but not be limited to,
determination of the following:
(i) the number of shares constituting that series and the
distinctive designation of that series;
(ii) the dividend rate on the shares of that series, whether
the dividend shall be cumulative, and if so, from which date or dates
and the terms and conditions on which dividends shall be paid;
(iii) 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;
(iv) whether that series shall have conversion privileges, and
if so, the terms and conditions of such conversion, including
provisions for adjustment of the conversion rate in such event as the
Board of Directors shall determine;
(v) whether or not the shares of that 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 per share payable in case of redemption,
which amount may vary under difference conditions and at different
redemption dates and the terms of the sinking fund or redemption or
purchase account, if any;
(vi) the rights of the shares of that series in the event of
voluntary of involuntary liquidation, dissolution or winding up or
merger, consolidation, distribution or sale of the assets of the
Corporation;
(vii) provisions, if any, for the vote or consent of the holders
of a stated percentage of the outstanding shares of Preferred Stock of
such series with respect to changes in the rights, preferences or
limitations of the shares of such series, or the designation or
issuance of series of the Preferred Stock by the Board of Directors,
or the authorization or issuance of other classes or series of
preferred stock; and
(viii) any other relative rights, preferences and limitations of
that series.
b) Dividends on outstanding shares of Preferred Stock shall be
declared and paid, or set apart for payment, before any dividends shall be
declared and paid or set apart for payment on the shares of Common Stock
with respect to the same dividend period.
c) No holder of shares of Preferred Stock shall be entitled to any
preemptive rights with respect to subscribing for or purchasing any part of
any new or additional issue or sale or reservation of stock or
securities of any class or kind whatsoever.
ARTICLE FIVE
The name and mailing address of the incorporator is Judith A. Jensen, 2400
First National Tower, Tulsa, Oklahoma 74103.
ARTICLE SIX
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized:
(a) To make, alter or repeal the By-Laws of the Corporation.
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(b) To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
(c) To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish
any such reserve in the manner in which it was created.
(d) To designate one or more committees. Any such committee, to the
extent provided in the resolution of the Board of Directors, or in the By-
Laws of the Corporation, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation
to be affixed to all papers which may require it, all to the extent
permitted by law.
ARTICLE SEVEN
The number of Directors which constitute the whole Board shall not be less
than three persons nor more than ten persons. The exact number of Directors
shall be determined from time to time by the Board of Directors pursuant to a
resolution adopted by a majority of the entire Board of Directors.
Notwithstanding anything contained in this Certificate of Incorporation or
the Bylaws of the Corporation to the contrary (and notwithstanding the fact that
a lesser percentage may be specified by law, in this Certificate of
Incorporation or the Bylaws of the Corporation), the affirmative vote of the
holders of at least eighty percent (80%) of the outstanding shares of
capital stock entitled to vote for the election of Directors, voting together as
a single class, shall be required to amend, modify or repeal the provisions set
forth in the first paragraph of this Article Seven.
ARTICLE EIGHT
The rights of indemnification of directors, officers, employees or agents
of the Corporation shall extend to the fullest extent permitted by The General
Corporation Law of the State of Delaware, in its current form or as hereafter
amended, or any successor law, as more particularly described in the By-
Laws of the Corporation.
ARTICLE NINE
A Director shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
provided however that the Director's liability shall not be eliminated or
limited: (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 General Corporation Law of Delaware; and (iv) for any
transaction from which the Director derived an improper personal benefit.
ARTICLE TEN
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.
ARTICLE ELEVEN
SECTION 1. Vote Required for Certain Business Combinations.
A. Higher Vote for Certain Business Combinations. In addition
to any affirmative vote required by law or this Certificate of
Incorporation, and except as otherwise expressly provided in section 2
of this Article Eleven:
(i) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with (a) any Interested
Stockholder (as hereinafter defined) or (b) any other corporation
(whether or not itself an Interested Stockholder) which is, or
after such merger or consolidation would be, an Affiliate (as
hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or series of
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value (as hereinafter defined) of $10,000,000 or more; or
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(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of
any securities of the Corporation or any Subsidiary to
any Interested Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market Value
of $10,000,000 or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on
behalf of an Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation, or
any merger or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder;
shall require the affirmative vote of the holders of at least 80% of
the voting power of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors, excluding any Preferred Stock issued after May 18, 1988
which the Board of Directors determines to exclude from the operation
of this Article (the "voting stock"), voting together as a single
class (it being understood that for purposes of this Article Eleven,
each share of voting stock shall have the number of votes granted to
it pursuant to Article Four of this Certificate of Incorporation).
Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be specified,
by law or in any agreement with any national securities exchange or
otherwise.
B. Definition of "Business Combination". The term "Business
Combination" as used in this Article Eleven shall mean any transaction
which is referred to in any one or more of clauses (i) through (v) of
paragraph A of this Section 1.
SECTION 2. When Higher Vote is Not Required. The provisions of
Section 1 of this Article Eleven shall not be applicable to any particular
Business Combination, and such Business Combination shall require only such
affirmative vote as is required by law and any other provision of this
Certificate of Incorporation, if all of the conditions specified in either
of the following paragraphs A or B are met.
A. Approval by Continuing Directors. The Business Combination
shall have been approved by a majority of the Continuing Directors (as
hereinafter defined).
B. Price, Form of Consideration and Procedure Requirements: All
of the following conditions shall have been met:
(i) The aggregate amount of the cash and the fair
market value (as hereinafter defined) as of the date of the
consummation of the Business Combination (the "Consummation
Date") of the consideration other than cash to be received per
share by holders of Common stock in such Business Combination
shall be an amount at least equal to the higher of the following
(it being intended that the requirements of this paragraph B (i)
shall be required to be met with respect to all shares of Common
Stock outstanding, whether or not the Interested Stockholder has
previously acquired any shares of the Common Stock):
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealer's fees) paid by the Interested
Stockholder for any shares of Common Stock acquired by it
(1) within the two-year period immediately prior to the
first public announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested Stockholder,
whichever is higher, plus interest compounded annually
from the date on which the Interested Stockholder became
an Interested Stockholder (the "Determination Date")
through the Consummation Date at the prime rate of
interest of Manufacturers Hanover Bank and Trust (or other
major bank headquartered in New York City selected by a
majority of the Continuing Directors) from time to time in
effect in New York City, less the aggregate amount of any
cash dividends paid, and the Fair Market Value of any
dividends paid in other than cash, on each share of Common
Stock from the Determination Date through the
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Consummation Date in an amount up to but not exceeding the
amount of such interest payable per share of Common stock;
or
(b) the fair market value per share of Common
Stock on the first trading day after the Announcement
Date.
(ii) The aggregate amount of the cash and the fair
market value as of the Consummation Date of the consideration
other than cash to be received per share by holders of shares of
any class of outstanding voting stock, other than the Common
Stock, in such Business Combination shall be an amount at least
equal to the higher of the following (it being intended that the
requirements of this paragraph B(ii) shall be required to be met
with respect to every such other class of outstanding voting
stock (excluding any Preferred Stock issued after May 18, 1988
which the Board of Directors determines to exclude from the
operation of this Article), whether or not the Interested
Stockholder has previously acquired any shares of a particular
class of Voting Stock):
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Stockholder for any shares of such class of voting stock
acquired by it (1) within the two-year period immediately
prior to the Announcement Date or (2) in the transaction
in which it became an Interested Stockholder, whichever is
higher, plus interest compounded annually from the
Determination Date through the Consummation Date at the
prime rate of interest of Manufacturers Hanover Bank and
Trust (or other major bank headquartered in New York
City selected by a majority of the Continuing Directors)
from time to time in effect in New York City, less the
aggregate amount of any cash dividends paid, and the Fair
Market Value of any dividends paid in other than cash, on
each share of such class of voting stock from the
Determination Date through the Consummation Date in an
amount up to but not exceeding the amount of such interest
payable per share of such class of voting stock; or
(b) the fair market value per share of such class
of Voting Stock on the First trading day after the
Announcement Date; or
(c) (if applicable) the highest preferential
amount per share to which the holders of shares of such
class of voting stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, whichever is higher.
(iii) The consideration to be received by holders of a
particular class of outstanding voting stock shall be in cash or
in the same form as the Interested Stockholder has previously
paid for shares of such class of voting stock. If the Interested
Stockholder has paid for shares of any class of voting stock with
varying forms of consideration, the form of consideration
for such class of voting stock shall be either cash or the form
used to acquire the largest number of shares of such class of
voting stock previously acquired by it.
(iv) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such
Business Combination: (a) except as approved by a majority
of the Continuing Directors, there shall have been no failure to
declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on the outstanding
Preferred Stock: (b) there shall have been (1) no reduction
in the annual rate of dividends paid on the Common Stock (except
as necessary to reflect any subdivision of the Common stock),
except as approved by a majority of the Continuing Directors, and
(2) an increase in such annual rate of dividends as necessary to
reflect any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure so to
increase such annual rate is approved by a majority of the
Continuing Directors; and (c) such Interested Stockholder shall
have not become the beneficial owner of any additional shares of
voting stock except as part of the transaction which result in
such Interested Stockholder becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder shall not
have received the benefit, directly or indirectly (except
proportionately as a stockholder) of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise.
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(vi) A proxy or information statement describing the
proposed Business Combination and complying with the requirements
of the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions replacing
such Act, rules or regulation) shall be mailed to public
stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant
to such Act or subsequent provisions).
SECTION 3. Certain Definitions. For the purposes of this Article
Eleven:
A. A "person" shall mean any individual, firm, corporation or
other entity.
B. "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary (as hereinafter defined) and other
than any profit sharing, thrift, employee stock ownership, retirement
or other employee benefit plan of the Corporation or any Subsidiary or
any trustee of , or the fiduciary with respect to any such plan when
acting in such capacity) who or which:
(i) is the beneficial owner (as hereinafter defined),
directly or indirectly, of more than five percent (5%) or more of
the voting stock; or
(ii) is an Affiliate (as hereinafter defined) of the
Corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial
owner, directly or indirectly, of five percent (5%) or
more of the voting stock; or
(iii) is an assignee of or has otherwise succeeded to
any shares of voting stock which were at any time within the two-
year period immediately prior to the date in question
beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of
any voting stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns, directly
or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or
options, or otherwise, or (b) the right to vote pursuant to
any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of voting stock.
D. For the purposes of determining whether a person is an
Interested Stockholder pursuant to paragraph B of this Section 3, the
number of shares of voting stock deemed to be outstanding shall
include shares deemed owned through application of paragraph C
of this Section 3 but shall not include any other shares of voting
stock which may be issuable pursuant to any agreement, arrangement or
understanding or upon exercise of conversion rights, warrants or
options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
March 1, 1988.
F. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in paragraph B of this
section 3, the term "Subsidiary" shall mean only a corporation of
which a majority of each class of equity security is owned, directly,
or indirectly, by the Corporation.
G. "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board") who is unaffiliated with
the Interested Stockholder and was a member of the Board prior to the
time that
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the Interested Stockholder became an Interested
Stockholder, and any successor of a Continuing Director who is
unaffiliated with the Interested Stockholder and is recommended or
elected to succeed a Continuing Director by a majority of the
Continuing Directors then on the Board.
H. "Fair market value" means (i) in the case of stock, the
highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange-Listed Stocks, or if such
stock is not quoted on the Composite Tape on the New York Stock
Exchange, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or if
such stock is not listed on any such exchange, the highest closing
bid quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system
then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined
by the Board in good faith; and (ii) in the case of property other
than cash or stock, the fair market value of such property on the date
in question as determined by a majority of the Continuing Directors
in good faith.
I. In the event of an Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
receive" as used in paragraphs B(i) and (ii) of Section 2 of this
Article Eleven shall include the shares of Common Stock and/or the
shares of any other class of outstanding voting stock retained by the
holders of such shares.
SECTION 4. Certain Determinations. The Continuing Directors of the
Corporation shall have the power and duty to determine for the purposes of
this Article Eleven, on the basis of information known to them after
reasonable inquiry, (A) whether a person is an Interested Stockholder, (B)
the number of shares of voting stock beneficially owned by any person, (C)
whether a person is an Affiliate or Associate of another, and (D) whether
the assets which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by
the Corporation or any Subsidiary in any Business Combination has, an
aggregate fair market value of $10,000,000 or more.
SECTION 5. No Effect on Fiduciary Obligations of Interested
Stockholders. Nothing contained in this Article Eleven shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
SECTION 6. Amendment, Repeal, etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the By-laws of the
Corporation (and notwithstanding the fact that a lesser percentage may be
specified by law, this Certificate of Incorporation or the By-laws of the
Corporation), the affirmative vote of the holders of eighty percent (80%)
or more of the voting power of the shares of the then outstanding voting
stock, voting together as a single class, shall be required to amend,
modify or repeal this Article Eleven of this Certificate of Incorporation.
IN WITNESS WHEREOF, this RESTATED CERTIFICATE OF INCORPORATION
has been signed by John G. Nikkel, its President this 11th day of
May, 2000.
UNIT CORPORATION
By: /s/ John G. Nikkel
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John G. Nikkel
President
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