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EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
NATIONAL ENERGY GROUP, INC.
National Energy Group, Inc., a corporation originally incorporated on
November 19, 1990 and organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY
CERTIFY:
FIRST: That the Board of Directors of the Corporation adopted a
resolution proposing and declaring advisable that the Certificate of
Incorporation of the Corporation be amended and restated to read in its entirety
as set forth in paragraph FOURTH of this Restated Certificate of Incorporation.
SECOND: That this Restated Certificate of Incorporation was adopted as
of October 13, 2000, by the Board of Directors of the Corporation in accordance
with Section 303 of the General Corporation Law of the State of Delaware, and
pursuant to the Joint Plan of Reorganization under Chapter 11 of the Bankruptcy
Code for National Energy Group, Inc. and Boomer Marketing Company, dated March
14, 2000, confirmed with respect to the Corporation (as modified and/or amended
at any time through the date of filing hereof with the Delaware Secretary of
State, the "Plan") pursuant to an Order Confirming Joint Plan of Reorganization
and Fixing Deadlines for Filing Administrative Claims, Fee Claims and Rejection
Claims, entered by the United States Bankruptcy Court for the Northern District
of Texas, Dallas Division, a court of competent jurisdiction, under Chapter 11
of the United States Bankruptcy Code, on July 24, 2000 (the "Confirmation
Order"), and that, pursuant to the Confirmation Order and Section 303 of the
General Corporation Law of the State of Delaware, no stockholder action was
required in order to effectuate such adoption. A copy of the Confirmation Order
is attached hereto as Exhibit A.
THIRD: That pursuant to the Plan, on or after the date and time on
which this Restated Certificate of Incorporation is filed with the Delaware
Secretary of State each holder of shares, as of August 4, 2000, of the existing
common capital stock of the Corporation or the existing preferred capital stock
of the Corporation (defined in the Plan as the Corporation's "Common Equity
Interest" and "Preferred Equity Interest", respectively), which shares are
deemed cancelled pursuant to the Plan, will receive newly issued shares of the
Corporation's common stock, $.01 par value, as provided in the Plan.
FOURTH: That the Certificate of Incorporation of the Corporation is
hereby amended and restated in its entirety to read as follows:
FIRST: The name of the corporation is National Energy Group, Inc. (the
"Corporation").
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SECOND: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD: The purpose of the Corporation 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 (the "General Corporation Law").
FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is 101,000,000 shares, consisting of 100,000,000
shares of common stock, par value $.01 per share ("Common Stock"), and 1,000,000
shares of preferred stock, $1.00 par value per share ("Preferred Stock"),
issuable in series.
The Board of Directors of the Corporation is expressly authorized to
cause Preferred Stock to be issued from time to time, in one or more series, and
in connection with each such series to determine and fix by the resolution or
resolutions providing for the creation and issuance of such shares of Preferred
Stock the number and designation thereof, the powers (including without
limitation any type of voting powers - special, no or otherwise), designations,
preferences, conversion rights, cumulative, relative, participating, optional or
other rights, if any, and the qualifications, limitations or restrictions
thereof, if any, to the full extent permitted by the General Corporation Law.
FIFTH: No nonvoting equity securities of the Corporation may be issued;
provided that, this provision, included in this Restated Certificate of
Incorporation in compliance with Section 1123(a)(6) of the United States
Bankruptcy Code, 11 U.S.C. Section 1123(a)(6), shall have no force and effect
except to the extent required by such Section so long as such Section is in
effect and applicable to the Corporation.
SIXTH: No Equity Interests of the Corporation nor instruments
exchangeable for Equity Interests of the Corporation shall be permitted to be
transferred to or by any Person who is, was or would become as a result of such
transfer a "5-percent shareholder" within the meaning of 26 U.S.C. Section 382.
For purposes of this Article Sixth, the term "Person" shall mean an
individual, corporation, general partnership, limited partnership, association,
joint stock company, joint venture, estate, trust, unincorporated organization,
government, or any political subdivision thereof or other entity; and the term
"Equity Interests" shall mean any share of Common Stock or other instrument
evidencing an ownership interest in the Corporation, whether or not
transferable, and any option, warrant or right, contractual or otherwise, to
acquire any such interest.
SEVENTH: The Board of Directors of the Corporation is expressly
authorized to adopt, amend or repeal by-laws of the Corporation.
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EIGHTH: Elections of Directors need not be by written ballot except and
to the extent provided in the by-laws of the Corporation.
NINTH: A Director of the Corporation shall not be personally liable to
the Corporation or its stockholders for breach of fiduciary duty as a Director;
provided, however, that the foregoing shall not eliminate or limit the liability
of a Director: (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 as the same exists or hereafter may
be amended, or (iv) for any transaction from which the Director derived an
improper personal benefit.
ELEVENTH: The Corporation shall indemnify to the fullest extent
authorized by law any person made or threatened to be made a party to any
action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person or such person's testator
or intestate is or was a Director, officer, employee or agent of the Corporation
or serves or served at the request of the corporation any other enterprise as a
Director, officer, employee or agent.
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IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be signed by Bob G. Alexander, its President and
Chief Executive Officer, and attested by Philip D. Devlin, its Vice President,
General Counsel and Secretary, as of the 13th day of October, 2000.
NATIONAL ENERGY GROUP, INC.
By:
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Bob G. Alexander
President and
Chief Executive Officer
ATTEST
By:
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Philip D. Devlin
Vice President,
General Counsel and Secretary
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EXHIBIT A
