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EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
GOODRICH PETROLEUM CORPORATION
I. The name of the corporation is GOODRICH PETROLEUM CORPORATION (the
"Corporation").
II. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
III. The purpose or purposes for which the corporation is formed are to engage
in any lawful act or activity for which corporations may be organized under
the General Corporation Law of Delaware.
IV. The total number of shares of all classes of stock which the corporation
shall have authority to issue is one hundred ten million (110,000,000),
consisting of one hundred million (100,000,000) shares of Common Stock, par
value $0.20 per share, and ten million (10,000,000) shares of Preferred
Stock, par value $1.00 per share.
The following is a statement fixing certain of the designations and
powers, voting powers, 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 this Certificate:
A. Preferred Stock
The Board of Directors is hereby expressly vested with the authority
to adopt a resolution or resolutions providing for the issue 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 powers, voting
powers, 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 for the creation or revision of such
Series Terms (a "Preferred Stock Series Resolution") adopted by the Board of
Directors or a committee of the Board of Directors to which such responsibility
is specifically and lawfully delegated. The powers of the Board with respect to
the Series Terms of a particular series (any of which powers, other than voting
powers, may by resolution of the Board of Directors be specifically
delegated to one or more of its committees, except as prohibited by law) shall
include, but not be limited to, determination of the following:
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(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, and, if so, 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, and, if so, the
terms and conditions of such redemption, including their 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 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;
(7) 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;
(8) 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;
(9) 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; and
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(10) 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 Certificate 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 Certificate of Incorporation or in the Preferred
Stock Series Resolution.
Subject to the provisions of this Article Fourth, 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 or a designated committee thereof, in an aggregate amount
not exceeding the total number of shares of Preferred Stock authorized by this
Certificate of Incorporation. Except in respect of series particulars fixed by
the Board of Directors or its committee as permitted hereby, all shares of
Preferred Stock shall be of equal rank and shall be identical. 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. Series A Convertible Preferred Stock
1. Designation and Amount
There shall be a series of Preferred Stock designated as Series A
Convertible Preferred Stock ("Series A Preferred Stock") and the number of
shares constituting such series shall be 1,375,000. Such number of shares may
be increased or decreased by resolution of the Board of Directors, provided
that no decrease shall reduce the number of Series A Preferred Stock to a
number less than the number of shares then outstanding or reserved for
issuance in certain events. All shares of Series A Preferred Stock shall rank
prior, both as to payment of dividends and as to distributions of assets upon
the voluntary or involuntary liquidation, dissolution or winding up of the
Corporation to all of the Corporation's now or hereafter issued Common Stock
and any other series of capital stock of the corporation that is not, by its
terms, senior to or pari passu with the Series A Preferred Stock.
2. Dividends
The holders of the then outstanding Series A Preferred Stock shall be
entitled to receive, when, as, and if declared by the Board of Directors, out
of any funds legally available therefor, dividends at an annual rate of eight
percent (8%) per share of Series A Preferred Stock (appropriately adjusted
for stock splits and combinations), payable in preference and priority to any
payment of any dividend on the Corporation's Common Stock. Dividends shall
accrue without interest and be cumulative from the date of first issuance and
shall be payable in cash, when, as and if declared by the Board of Directors
of the Corporation, quarterly in arrears on March 31, June 30, September 30
and December 31 of each year, beginning on September 30, 1993 (except that if
any such date is a Saturday,
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Sunday or legal holiday then such dividend shall be payable on the next day
that is not a Saturday, Sunday or legal holiday) to holders of record on such
record dates as are fixed by the Board of Directors. Subject to the following
paragraph, dividends in arrears for any past dividend period may be declared
and paid at any time. The amount of dividends payable for any period shorter
than a full quarterly dividend period shall be computed on the basis of a
360-day year.
Dividends and distributions (other than dividends payable solely in
Common Stock or other capital stock ranking junior as to dividend rights to
the Series A Preferred Stock) may not be declared, paid, or set apart for
payment and purchases, redemptions or other acquisitions of shares of Common
Stock or other capital stock ranking junior as to dividend rights may not be
made unless all accrued and unpaid dividends (including the full dividend for
the then current dividend period) on the Series A Preferred Stock have been
paid or declared and set apart for payment.
If at any time any dividend on any capital stock of the Corporation
ranking senior as to dividends to the Series A Preferred Stock shall be in
default, in whole or in part, then no dividend shall be paid or declared and
set apart for payment on the Series A Preferred Stock unless and until all
accrued and unpaid dividends with respect to the senior ranking stock shall
have been paid or declared and set apart for payment. No full dividends shall
be paid or declared and set apart for payment on any class or series of the
Corporation's capital stock ranking, as to dividends, on a parity with the
Series A Preferred Stock for any period unless full cumulative dividends have
been or contemporaneously are, paid or declared and set apart for payment on
the Series A Preferred Stock for all dividend payment periods terminating on
or prior to the date of payment of such full cumulative dividends. No full
dividends shall be paid or declared and set apart for payment on the Series A
Preferred Stock for any period unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for payment on the
stock ranking on parity with the Series A Preferred Stock for all dividend
periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, all dividends paid
or declared and set apart for payment upon shares of Series A Preferred Stock
and the stock ranking on parity with the Series A Preferred Stock shall be
paid or declared and set apart for payment pro rata so that the amount of
dividends paid or declared and set aside for payment per share on the Series
A Preferred Stock and the stock ranking on parity shall in all cases bear to
each other the same ratio that accrued and unpaid dividends per share on the
shares of Series A Preferred Stock and the stock ranking on parity bear to
each other.
Any reference to "distribution" contained in this Section 2 shall not be
deemed to include any distribution made in connection with any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary.
3. Liquidation Rights
In the event of a voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation, the holders of shares of Series A Preferred
Stock shall be entitled to receive,
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out of the assets of the Corporation legally available therefor, a sum equal
to $10.00 per share of Series A Preferred Stock, as appropriately adjusted
for stock splits or combinations, plus dividends, if any, then accrued and
unpaid to the distribution date, before any payment shall be made or any
assets distributed to the holders of Common Stock, or other class or series
of capital stock ranking junior to the Series A Preferred Stock in
liquidation rights, provided that such rights shall accrue to the holders of
Series A Preferred Stock only in the event that payments with respect to the
liquidation preferences of the holders of capital stock of the Corporation
ranking senior as to liquidation rights to the Series A Preferred Stock are
fully met. The holders of Series A Preferred Stock and all classes of stock
hereafter issued that rank on a parity as to liquidation rights with the
Series A Preferred Stock are entitled to share ratably, in accordance with
the respective preferential amounts payable on such stock, in any
distribution which is not sufficient to pay in full the aggregate of the
amounts payable thereon.
A consolidation, merger or other business combination of the Corporation
with or into any other corporation or entity or a sale or transfer of all or
substantially all of the assets of the Corporation for cash, securities or
other property shall not be deemed to be a liquidation, dissolution or
winding up for purposes of this Section 3.
4. Voting Rights
The holders of Series A Preferred Stock shall have no voting rights
except as set forth herein or as required by the Delaware General Corporation
Law. In connection with any such vote, each outstanding share of Series A
Preferred Stock shall be entitled to one vote, except that any such shares
held by the Corporation or any entity controlled by the Corporation shall
have no voting rights and shall not be counted in determining the presence of
a quorum.
Whenever dividends on the Series A Preferred Stock or any outstanding
shares of stock having parity with the Series A Preferred Stock as to
dividends are in arrears in an amount equal to at least six quarterly
dividends, whether or not consecutive, the number of directors of the
Corporation shall be increased by two, and the holders of the Series A
Preferred Stock (voting separately as a class with the holders of stock
having parity with the Series A Preferred Stock as to dividends on which like
voting rights have been conferred and are exercisable) shall be exclusively
entitled to elect such two additional directors at any meeting of
stockholders of the Corporation at which directors are to be elected held
during the period such dividends remain in arrears. Such voting right will
terminate when all such dividends accrued and in default have been declared
and paid in full or set apart for payment. The term of office of all
directors so elected shall terminate immediately upon such payment or setting
apart for payment.
The foregoing right of the holders of the Series A Preferred Stock with
respect to the election of two directors may be exercised at any annual
meeting of stockholders or at any special meeting of stockholders held for
such purpose. If the right to elect directors shall have accrued to the
holders of the Series A Preferred Stock more than 90 days preceding the
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date established for the next annual meeting of stockholders, the president
of the Corporation shall, within 20 days after the delivery to the
Corporation at its principal office of a written request for a special
meeting signed by the holders of at least ten percent (10%) of the Series A
Preferred Stock then outstanding, call a special meeting of the holders of
the Series A Preferred Stock to be held within 60 days after the delivery of
such request for the purpose of electing such additional directors.
Any vacancy in the Board of Directors occurring because of the death,
resignation or removal of a director elected by the holders of Series A
Preferred Stock (and any class of stock having parity) voting as a separate
class shall be filled by the vote of the holders of the Series A Preferred
Stock (and any class of stock having parity) or, in the absence of action by
such holders, by action of the remaining director elected by the holders of
such stock.
So long as any Series A Preferred Stock is outstanding, the Corporation
shall not, without the affirmative vote of the holders of at least 66 2/3
percent of all outstanding shares of Series A Preferred Stock, voting
separately as a class, whether or not a vote of the stockholders would
otherwise be required by law, (i) amend, alter or repeal (by merger or
otherwise) any provision of the Certificate of Incorporation or the Bylaws of
the Corporation so as to affect adversely the relative rights, preferences,
qualifications, limitations or restrictions of the Series A Preferred Stock,
(ii) authorize or issue, or increase the authorized amount of, any additional
class or series of stock of the Corporation, or any security convertible into
stock of such class or series, having rights senior to the Series A Preferred
Stock as to dividends or liquidation, or (iii) effect any reclassification of
the Series A Preferred Stock.
So long as any Series A Preferred Stock is outstanding, the Corporation
shall not, without the affirmative vote of the holders of at least 50 percent
of all outstanding shares of Series A Preferred Stock, voting separately as a
class, whether or not a vote of the stockholders would otherwise be required
by law, (i) authorize or issue, or increase the authorized amount of, any
additional class or series of stock of the Corporation, or any security
convertible into stock of such class or series, having rights pari passu with
the Series A Preferred Stock as to dividends or liquidation and any right to
vote, whether as a separate class or otherwise, on any matter (other than a
matter that can have no effect on the rights of the Series A Preferred Stock)
as to which the Series A Preferred Stock is not entitled to vote, or (ii)
incur indebtedness for money borrowed or authorize or issue, or increase the
authorized amount of, any additional class or series of stock of the
Corporation, or any security convertible into stock of such class or series,
having rights pari passu with the Series A Preferred Stock as to dividends or
liquidation if, immediately following such event, Adjusted Stockholders'
Equity, as defined below, shall be less than the aggregate liquidation
preferences of the Series A Preferred Stock and all classes and series of
stock of the Corporation ranking senior to or pari passu with the Series A
Preferred Stock as to liquidation preference. For the purpose of the
foregoing sentence, Adjusted Stockholders' Equity shall mean the
Stockholders' Equity of the Corporation, as shown on its most recent balance
sheet filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") increased
by (A) any amount of
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any liability or other reduction in Stockholders' Equity attributable to the
Series A Preferred Stock and any class or series of stock of the Corporation
ranking senior to or pari passu with the Series A Preferred Stock as to
liquidation preference and (B) the net proceeds of any equity financing of
the Corporation since the date of such balance sheet, and reduced by the
amount of any reduction in Stockholders' Equity resulting from a disposition
of assets since the date of such balance sheet which disposition of assets is
required to be described on Form 8-K under the Exchange Act.
5. Redemption
The Corporation may, at its option, redeem all or part of the shares of
the Series A Preferred Stock then outstanding on any date set by the Board of
Directors at any time after September 14, 1994. The redemption price, to be
paid in cash, for each share of Series A Preferred Stock shall be $12.00 plus
any accrued and unpaid dividends, whether or not declared.
At least 30 but not more than 60 days prior to the date fixed for
redemption of any of the Series A Preferred Stock ("Redemption Date"),
written notice shall be mailed, first class postage prepaid, to each holder
of record of the Series A Preferred Stock to be redeemed at the close of
business on the business day next preceding the day on which notice is given
(the "Redemption Record Date") at the address last shown on the records of
the Corporation for such holder or given by the holder to the Corporation for
the purpose of notice, notifying such holder of the redemption to be effected
and specifying the Redemption Date; the redemption price; the place or places
at which payment may be obtained; the method used in determining what shares
are to be redeemed in the event that less than all shares are to be redeemed;
that the payment will be made upon presentation and surrender of the shares
to be redeemed; that on and after the Redemption Date, dividends will cease
to accrue on such shares; the then effective conversion rate of the shares to
be redeemed; the date on which such holder's conversion rights as to such
shares terminate and calling upon such holder to surrender to the
Corporation, in the manner and at the place designated, his certificate or
certificates representing the shares to be redeemed (the "Redemption
Notice").
Any notice that is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice; and failure to give such notice by mail, or any defect in such
notice, to the holders of any shares designated for redemption shall not
affect the validity of the proceedings for the redemption of any other shares
of Series A Preferred Stock. On or after the date fixed for redemption as
stated in such notice, each holder of the shares called for redemption shall
surrender the certificate evidencing such shares to the Corporation at the
place designated in such notice and shall thereupon be entitled to receive
payment of the redemption price. If less than all the shares represented by
any such surrendered certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares.
From and after the Redemption Date, unless there shall have been a
default in payment of the redemption price, all rights of the holders of the
Series A Preferred Stock so
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redeemed (except the right to receive the redemption price without interest
upon surrender of their certificate or certificates) shall terminate with
respect to such shares, and such shares shall not thereafter be transferred
on the books of the Corporation or be deemed to be outstanding for any
purpose whatsoever. The shares of Series A Preferred Stock not redeemed, if
any, shall remain outstanding and entitled to all the rights and preferences
provided herein.
Three days prior to the Redemption Date, the Corporation shall deposit
the redemption price of all Series A Preferred Stock to be redeemed with a
bank or trust company in the United States of America having aggregate
capital and surplus in excess of $50,000,000 as a trust fund for the benefit
of the holders of the shares designated for redemption. Simultaneously, the
Corporation shall deposit irrevocable instruction and authority to such bank
or trust company to pay, on and after the Redemption Date, the redemption
price of the Series A Preferred Stock to the holders thereof upon surrender
of their certificates. Any monies deposited by the Corporation for the
redemption of shares that are thereafter converted into shares of Common
Stock (and Warrants prior to September 15, 1997) no later than the close of
business on the day preceding the Redemption Date shall be returned to the
Corporation forthwith upon such conversion. The balance of any monies
deposited by the Corporation remaining unclaimed at the expiration of one
year following the Redemption Date shall thereafter be returned to the
Corporation, provided that the stockholder to which such monies would be
payable hereunder shall be entitled, upon proof of ownership of the Series A
Preferred Stock and payment of any bond requested by the Corporation, to
receive such monies but without interest from the Redemption Date.
If fewer than all of the outstanding shares of Series A Preferred Stock
are to be redeemed, the Corporation shall designate those shares to be
redeemed pro rata or by lot or in such other manner as the Board of Directors
may determine. There shall be no mandatory redemption, retirement or sinking
fund obligation of the Corporation with respect to the Series A Preferred
Stock. In the event that the Corporation is in arrears on the payment of
accrued and unpaid dividends on the Series A Preferred Stock, it shall not
redeem any of the then outstanding shares of the Series A Preferred Stock
until all such accrued dividends and (except with respect to shares to be
redeemed) the then current quarterly dividend have been paid in full.
6. Conversion
(A) Automatic Conversion. If at any time, the closing price for the
Series A Preferred Stock, as quoted on Nasdaq or any national securities
exchange, shall exceed 150% of the then liquidation preference per share of
Series A Preferred Stock for ten consecutive trading days, then, effective as
of the close of trading on the tenth such trading day, all of the then
outstanding shares of Series A Preferred Stock shall be automatically
converted into Common Stock and a Warrant, as provided in Section 6 (C),
below, at the then effective conversion rate.
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(B) Optional Conversion. Each share of Series A Preferred Stock shall be
convertible at the option of the holder thereof at any time prior to maturity
and prior to the close of business on the business day prior to the
Redemption Date relating to such share, if any, into Common Stock and a
Warrant, as provided in Section 6 (C), below.
(C) Effect of Conversion. Upon the occurrence of a conversion as provided
in Sections 6 (A) or (B), above, the holder of shares of converted Series A
Preferred Stock shall be entitled to receive (i) a number of shares of Common
Stock determined by multiplying the number of shares of Series A Preferred
Stock to be converted by the Conversion Rate (as defined below) and (ii) if
such conversion occurs prior to September 15, 1997, one Warrant to purchase
one share of Common Stock. The Conversion Rate shall be applied by
multiplying one by a fraction, the numerator of which is the sum of the then
liquidation preference of a share of Series A Preferred Stock and all fully
accrued and unpaid dividends as of the end of the most recent dividend period
relating to such share of Series A Preferred Stock, and the denominator of
which (the "Conversion Price") is initially $3.00 and is subject to
adjustment as provided in Section 6 (E), below. From and after any conversion
of Series A Preferred Stock, all rights of the holders of converted Series A
Preferred Stock shall cease, except the right to receive Common Stock and
Warrants as provided in this Section 6 (C). For the purpose of this Section
6, the term "Common Stock" shall initially mean the class designated as
Common Stock, par value $.20 per share, of the Corporation as of September
14, 1992, subject to adjustment as hereinafter provided and the term
"Warrant" shall mean the Warrants issued pursuant to the Warrant Agency
Agreement as provided in Section 6 (K), below.
(D) Conversion Procedures. Any holder of shares of Series A Preferred
Stock desiring to convert such shares shall surrender the certificate or
certificates for such shares of Series A Preferred Stock at the office of the
transfer agent for the Series A Preferred Stock, which certificate or
certificates, if the Corporation shall so require, shall be duly endorsed to
the Corporation or in blank, or accompanied by proper instruments of transfer
to the Corporation or in blank, accompanied by irrevocable written notice to
the Corporation that the holder elects so to convert such shares of Series A
Preferred Stock and specifying the name or names (with address) in which a
certificate or certificates for Common Stock and Warrants are to be issued.
Upon automatic conversion of Series A Preferred Stock as provided in
Section 6 (A), above, certificates that, until such conversion, represented
Series A Preferred Stock ("Former Series A Certificates") shall thereafter
represent solely the right to receive the securities and/or other property to
which the holders of such certificates became entitled upon such conversion.
However, such holders shall not be entitled to certificates representing any
such securities or to receive any such other property except upon surrender
of such Former Series A Certificates at the office of the transfer agent for
the Series A Preferred Stock or such successor transfer agent as the
Corporation shall reasonably appoint for that purpose and give notice to the
holders of Former Series A Certificates of such appointment.
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No adjustments in respect of dividends on the Common Stock issued upon
conversion shall be made upon the conversion of any shares of Series A
Preferred Stock.
The Corporation will, as soon as practicable after receipt of
certificates for Series A Preferred Stock accompanied by any required written
notice and compliance with any other conditions herein contained, deliver at
such office of such transfer agent to the person for whose account such
shares of Series A Preferred Stock were so surrendered, or to his nominee or
nominees, certificates for the number of full shares of Common Stock and
Warrants to which he shall be entitled as aforesaid together with a cash
adjustment for any fraction of a share as hereinafter provided. Subject to
the following provisions of this paragraph, such conversion shall be deemed
to have been made as of the date of such surrender of the shares of Series A
Preferred Stock to be converted, and the person or persons entitled to
receive the Common Stock and Warrants deliverable upon conversion of such
Series A Preferred Stock shall be treated for all purposes as the record
holder or holders of such Common Stock and Warrants on such date; provided,
however, that the Corporation shall not be required to convert any shares of
Series A Preferred Stock while the stock transfer books of the Corporation
are closed for any purpose, but the surrender of Series A Preferred Stock for
conversion during any period while such books are so closed shall become
effective for conversion immediately upon the reopening of such books as if
the surrender had been made on the date of such reopening, and the conversion
shall be at the conversion rate in effect on such date.
(E) Adjustment of Conversion Price. The definition of the term "Common
Stock" for purposes of this Section 6 and the Conversion Price shall be
subject to adjustment from time to time as follows:
(i) In case the Corporation shall (1) pay a dividend or make a
distribution on its Common Stock that is paid or made (A) in other shares
of stock of the Corporation or (B) in rights to purchase stock or other
securities (other than an event described in this Section 6 (E)), (2)
subdivide its outstanding shares of Common Stock into a greater number of
shares or (3) combine its outstanding shares of Common Stock into a
smaller number of shares, then in each such case the Conversion Price in
effect immediately prior thereto shall be adjusted retroactively and the
definition of "Common Stock" shall be changed so that the holder of any
shares of Series A Preferred Stock thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock of the
Corporation and other shares and rights to purchase stock or other
securities (or, in the event of the redemption of any such shares or
rights, any cash, property or securities paid in respect of such
redemption) which such holder would have owned or have been entitled to
receive after the happening of any of the events described above had such
shares of Series A Preferred Stock been converted immediately prior to
the happening of such event. An adjustment made pursuant to this Section
6 (E)(i) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision or combination.
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(ii) In case the Corporation shall issue rights or warrants to all
holders of its Common Stock entitling them (for a period expiring within
45 days after the dated fixed for determination mentioned below) to
subscribe for or purchase shares of Common Stock at a price per share
less than the current market price per share (determined as provided
below) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, then the
Conversion Price in effect at the opening of business on the day
following the date fixed for such determination shall be increased by
multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase and the
denominator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the
number of shares of Common Stock that the aggregate of the offering price
of the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price, such increase to
become effective immediately after the opening of business on the day
following the date fixed for such determination; provided, however, that
in the event that all the shares of Common Stock offered for subscription
or purchase are not delivered upon the exercise of such rights or
warrants, upon the expiration of such rights or warrants the Conversion
Price shall be readjusted to the Conversion Price that would have been in
effect had the numerator and the denominator of the foregoing fraction
and the resulting adjustment been made based upon the number of shares of
Common Stock actually delivered upon the exercise of such rights or
warrants, rather than upon the number of shares of Common Stock offered
for subscription or purchase. For the purposes of this subparagraph (ii),
the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Corporation.
(iii) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, cash (excluding ordinary cash dividends paid out of
retained earnings of the Corporation), other assets or rights or warrants
to subscribe for or purchase any security (excluding those referred to in
subparagraphs (i) and (ii) above), then in each such case the Conversion
Price shall be adjusted retroactively so that the same shall equal the
amount determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per
share (determined as provided below) of the Common Stock on the date
fixed for such determination and the denominator shall be such current
market price per share of the Common Stock less the amount of cash and
the then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a resolution of
the Board of Directors) of the portion of the assets, rights or evidences
of indebtedness so distributed applicable to one share of Common Stock,
such adjustment to become effective immediately prior to the
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opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
(iv) For the purpose of any computation under subparagraphs (ii) and
(iii), the current market price per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices for the 20
consecutive trading days commencing with the 30th trading day before the
day in question. The closing price for each day shall be the reported
last sales price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the New York Stock Exchange or, if
the Common Stock is not listed or admitted to trading on such Exchange,
on the principal national securities exchange on which the Common Stock
is listed or admitted to trading (based on the aggregate dollar value of
all securities listed or admitted to trading) or, if not listed or
admitted to trading on any national securities exchange, on NASDAQ or, if
the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on NASDAQ, the average of the closing bid
and asked prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the
Corporation for that purpose, or, if such prices are not available, the
fair market value set by, or in a manner established by, the Board of
Directors of the Corporation in good faith. "Trading day" shall mean a
day on which the national securities exchange or NASDAQ used to determine
the closing price is open for the transaction of business or the
reporting of trades or, if the closing price is not so determined, a day
on which the New York Stock Exchange is open for the transaction of
business.
(v) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least one
percent (1%) in such price; provided, however, that the Corporation may
make any such adjustment at its election; and provided, further, that any
adjustments which by reason of this subparagraph (v) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 6 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(vi) Whenever the Conversion Price is adjusted or the term "Common
Stock" is redefined as provided in any provision of this Section 6:
(1) the Corporation shall compute the adjusted Conversion Price in
accordance with this Section 6 and shall prepare a certificate signed
by the principal financial officer of the Corporation setting forth
the adjusted Conversion Price and the new definition of the term
"Common Stock" if any, and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall forthwith
be filed with the transfer agent for the Series A Preferred Stock; and
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(2) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be
required, and as soon as practicable after it is required, such notice
shall be mailed by the Corporation to each holder of record of Series
A Preferred Stock at such holder's address as it shall appear upon the
stock transfer books of the Corporation.
(vii) In the event that at any time, as a result of any adjustment
made pursuant to this Section 6, the holder of any shares of Series A
Preferred Stock thereafter surrendered by conversion shall become
entitled to receive any shares of the Corporation other than shares of
Common Stock and Warrants or to receive any other securities, the number
of such other shares or securities so receivable upon conversion of any
share of Series A Preferred Stock shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions contained in this Section 6 with respect to the Common
Stock.
(F) No Fractional Shares. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued upon conversion of Series A
Preferred Stock. If more than one certificate representing shares of Series A
Preferred Stock shall be surrendered for conversion at one time by the same
holder, the number of full shares issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of Series A Preferred
Stock so surrendered. Instead of any fractional share of Common Stock that
would otherwise be issuable upon conversion of any shares of Series A
Preferred Stock, the Corporation will pay a cash adjustment in respect of
such fractional interest in an amount equal to the same fraction of the
market price per share of Common Stock as determined by the Board of
Directors or in any manner prescribed by the Board of Directors, which, so
long as the Common Stock is listed on the New York Stock Exchange shall be
the reported last sale price regular way at the close of business on the
business day prior to the day of conversion.
(G) Reclassification, Consolidation, Merger or Sale of Assets. In case of
any reclassification of the Common Stock, any consolidation of the
Corporation with, or merger of the Corporation into, any other person, any
merger of another person into the Corporation (other than a merger that does
not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock), any sale or transfer of all or
substantially all of the assets of the Corporation or any compulsory share
exchange, pursuant to which share exchange the Common Stock is converted into
other securities, cash or other property (any of the foregoing being herein
referred to as a "Transaction"), then lawful provision shall be made as part
of the terms of such Transaction whereby the holder of each share of Series A
Preferred Stock then outstanding shall have the right thereafter, during the
period such share shall be convertible, to convert such share only into the
kind and amount of securities, cash and other property receivable upon such
reclassification, consolidation, merger, sale, transfer or share exchange by
a holder of the number of shares of Common Stock of the Corporation into
which such share of Series A Preferred Stock might have been converted
immediately prior to such reclassification, consolidation, merger, sale,
transfer or
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share exchange. As a condition to the consummation of any Transaction, the
Corporation shall require that the person formed by such consolidation or
resulting from such merger or that acquires such assets or that acquires the
Corporation's shares, as the case may be, shall make provisions in its
certificate or articles of incorporation or other constituent documents to
establish such right. Such certificate or articles of incorporation or other
constituent documents shall provide for adjustments which, for events
subsequent to the effective date of such certificate or articles of
incorporation or other constituent documents, shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section 6. The
above provisions shall similarly apply to successive reclassifications,
consolidations, mergers, sales, transfers or share exchanges.
(H) Reservation of Shares: Transfer Taxes: Etc. The Corporation shall at
all times reserve and keep available, out of its authorized and unissued
stock, solely for the purpose of effecting the conversion of the Series A
Preferred Stock, such number of shares of its Common Stock and other
securities free of preemptive rights as shall from time to time be sufficient
to effect the conversion of all shares of Series A Preferred Stock and
exercise of Warrants from time to time outstanding. The Corporation shall
from time to time, in accordance with the laws of the State of Delaware,
increase the authorized number of shares of Common Stock and other securities
if at any time the number of shares of Common Stock and other securities not
outstanding shall not be sufficient to permit the conversion of all the then
outstanding shares of Series A Preferred Stock and the exercise of Warrants.
If any shares of Common Stock required to be reserved for purposes of
conversion of the Series A Preferred Stock and exercise of Warrants hereunder
require registration with or approval of any governmental authority under any
Federal or State law before such shares may be issued upon conversion or
exercise, the Corporation will in good faith and as expeditiously as possible
endeavor to cause such shares to be duly registered or approved, as the case
may be. If the Common Stock is listed on the New York Stock Exchange or any
other national securities exchange, the Corporation will, if permitted by the
rules of such exchange, list and keep listed on such exchange, upon official
notice of issuance, all shares of Common Stock issuable upon conversion of
the Series A Preferred Stock and the exercise of Warrants.
The Corporation will pay any and all issue or other taxes that may be
payable in respect of any issue or delivery of shares of Common Stock on
conversion of the Series A Preferred Stock or the exercise of Warrants. The
Corporation shall not, however, be required to pay any tax that may be
payable in respect of any transfer involved in the issue or delivery of
Common Stock (or other securities or assets) in a name other than that in
which the shares of Series A Preferred Stock so converted or the Warrants so
exercised were registered, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Corporation the
amount of such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid.
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The Corporation shall not take any action that would cause any equity
securities issuable upon conversion of Series A Preferred Stock immediately
following such action to be other than fully paid and nonassessable. In
particular, but without limiting the generality of the foregoing, before
taking any action that would cause an adjustment reducing the Conversion
Price, such that the effective Conversion Price would be below the then par
or stated value of the Common Stock, the Corporation will take any corporate
action that may, in the opinion of its counsel, be necessary in order that
the Corporation may validly and legally issue fully paid and nonassessable
shares of Common Stock at the Conversion Price as so adjusted.
(I) Prior Notice of Certain Events. In case:
(i) the Corporation shall (1) declare any dividend (or any other
distribution) on its Common Stock, other than (A) a dividend payable in
shares of Common Stock or (B) a dividend payable in cash out of its
retained earnings other than any special or nonrecurring or other
extraordinary dividend or (2) declare or authorize a redemption or
repurchase of in excess of ten percent (10%) of the then outstanding
shares of Common Stock; or
(ii) the Corporation shall authorize the granting to the holders of
Common Stock of rights or warrants to subscribe for or purchase any
shares of stock of any class or of any other rights or warrants (other
than any rights specified in paragraph (E)(i)(1)(B) of this Section 6);
or
(iii) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to
par value), or of any consolidation or merger to which the Corporation is
a party and for which approval of any stockholders of the Corporation
shall be required, or of the sale or transfer of all or substantially all
of the assets of the Corporation or of any compulsory share exchange
whereby the Common Stock is converted into other securities, cash or
other property; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
then the Corporation shall cause to be filed with the transfer agent for the
Series A Preferred Stock and shall cause to be mailed to each holder of
record of the outstanding Series A Preferred Stock, at such holder's address
as it shall appear upon the stock transfer books of the Corporation, at least
15 days prior to the applicable record date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption or granting of rights or warrants or, if a
record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, redemption, rights
or warrants are to be determined, or (y) the date on which
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such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer, share exchange, dissolution, liquidation or winding up (but
neither the failure so to mail such notice nor any defect therein or in the
mailing thereof, shall affect the validity of the corporate action required
to be specified in such notice).
(J) Other Changes in the Conversion Price. The Corporation from time to
time may decrease the Conversion Price by any amount for any period of time
if the period is at least 20 days and if the decrease is irrevocable during
the period. Whenever the Conversion Price is so decreased, the Corporation
shall mail to holders of record of the Series A Preferred Stock a notice of
the decrease at least 15 days before the date the decreased Conversion Price
takes effect, and such notice shall state the decreased Conversion Price and
the period it will be in effect.
The Corporation may make such decreases in the Conversion Price, in
addition to those required or allowed by this Section 6, as shall be
determined by it, as evidenced by a resolution of the Board of Directors, to
be advisable in order to avoid or diminish any income tax to holders of
Common Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes.
(K) Warrants. Upon conversion of the Series A Preferred Stock prior to
September 15, 1997, the holders will receive one warrant to purchase one
share of Common Stock of the Corporation ("Warrant") for each share of Series
A Preferred Stock converted. The Warrants are to be issued pursuant to a
Warrant Agency Agreement between the Corporation's subsidiary Patrick
Petroleum Company ("Patrick") and Harris Trust & Savings Bank as Warrant
Agent or such other party as may act as Warrant Agent under the Warrant
Agency Agreement which shall be in substantially the form filed as an exhibit
to Patrick's Registration Statement on Form S-2 (Registration No. 33-50756)
as filed with the Securities and Exchange Commission and as amended on
September 3 and September 14, 1992, completed as set forth therein and with
such changes as may be required by law or usage. The Warrants will allow the
holders thereof to purchase one share of Common Stock of the Corporation for
$5.00, subject to adjustment, for a period of five years from September 14,
1992. The Warrants cannot be called by the Patrick prior to September 14,
1994 and thereafter are subject to call on 30 days notice for $.25 per
Warrant.
7. Special Conversion Rights Upon Corporate Change or Ownership Change
(A) Corporate Change. Upon the occurrence of a Corporate Change (as
defined in (E) below) with respect to the Corporation, each holder of Series
A Preferred Stock shall have the right, at the holder's option, for a period
of 45 days after the mailing of a notice by the Corporation that a Corporate
Change has occurred, to convert all, but not less than all, of such holder's
Series A Preferred Stock into Marketable Stock (as defined in (E) below)
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with an aggregate Market Value (as defined in (E) below) equal to the
aggregate Adjusted Value (as defined in (E) below) of the Series A Preferred
Stock for which conversion is elected. If a Corporate Change will result in
no Marketable Stock being outstanding following its occurrence, each holder
of Series A Preferred Stock shall have the special conversion right, if such
holder so elects, to receive an amount of the securities, cash or other
property distributed to holders of Common Stock in the Corporate Change, the
value of which equals the Adjusted Value per share of Series A Preferred
Stock, and in the event each share of Common Stock entitles its holder to
more than one type of consideration, in the same relative proportion of each
type of consideration per share of Common Stock. The Corporation or the
successor corporation, as the case may be, at its option, in lieu of
providing Marketable Stock or such other appropriate consideration as
required above upon any such conversion, may provide the holder with cash
equal to the Adjusted Value of the shares of the Series A Preferred Stock for
which conversion was elected. Series A Preferred Stock that becomes
convertible pursuant to the special conversion right will, unless so
converted, remain convertible into the kind and amount of securities, cash or
other assets that the holder of the Series A Preferred Stock would have owned
immediately after the Corporate Change if the holder had converted the Series
A Preferred Stock immediately before the effective date of the Corporate
Change. The Corporation shall mail a notice of the holders of record of
Series A Preferred Stock of any pending Corporate Change at least 30 days in
advance of the effective date of such Corporate Change in order to allow such
holders an opportunity to exercise their conversion rights under Section 6
hereof prior to the effective date of such Corporate Change and before the
special conversion right commences.
(B) Ownership Change. Upon the occurrence of an Ownership Change (as
defined in (E) below) with respect to the Corporation, each holder of Series
A Preferred Stock shall have the right, at the holder's option, for a period
of 45 days after the mailing of a notice by the Corporation that an Ownership
Change has occurred, to convert all, but not less than all, of such holder's
Series A Preferred Stock into Common Stock with an aggregate Market Value
equal to the aggregate Adjusted Value of the Series A Preferred Stock for
which conversion was elected. The Corporation may, at its option, in lieu of
providing Common Stock upon any such special conversion, provide the holder
with cash equal to the Adjusted Value of the shares of the Series A Preferred
Stock for which conversion as elected. The special conversion right arising
upon an Ownership Change shall be applicable only with respect to the first
Ownership Change that occurs after the first date of issuance of any shares
of Series A Preferred Stock.
(C) Notice. At least 30 days prior to the proposed effective date of a
Corporate Change, the Corporation shall mail to each holder of record of
Series A Preferred Stock, at such holder's address as it shall appear upon
the stock transfer books of the Corporation, a notice setting forth the
details of the proposed Corporate Change and the special conversion right.
Upon the occurrence of a Corporate Change or an Ownership Change with respect
to the Corporation, within 30 days after such occurrence, the Corporation
shall mail to each holder of record of Series A Preferred Stock, at such
holder's address as it shall appear upon the stock transfer books of the
Corporation, a notice of such occurrence (the "Special Conversion Notice")
setting forth the following:
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(i) the event constituting the Corporate Change or Ownership Change;
(ii) the last date upon which the special conversion right may be
exercised (the "Conversion Date");
(iii) the Applicable Value (as defined in (E) below);
(iv) the conversion price then in effect under Section 6 and the
continuing conversion rights, if any, under Section 6;
(v) the name and address of the paying agent and the conversion agent;
(vi) that holders who want to convert shares of Series A Preferred
Stock must satisfy the requirements of Section 6(B) and must exercise
such special conversion right within the 45-day period after the mailing
of such notice by the Corporation; and
(vii) that the Corporation may, at its option, elect to pay cash equal
to the aggregate Adjusted Value of all shares of Series A Preferred Stock
for which the special conversion was elected.
(D) Exercise Procedures. A holder of Series A Preferred Stock must
exercise the special conversion right within the 45-day period after the
mailing of the Special Conversion Notice by the Corporation or such special
conversion right shall expire. Such right must be exercised in accordance
with Section 6(B) to the extent the procedures in Section 6(B) are consistent
with the special provisions of this Section 7. Exercise of such special
conversion right shall be irrevocable and dividends on Series A Preferred
Stock tendered for special conversion shall cease to accrue from and after
the Conversion Date. The Conversion Date with respect to the exercise of a
special conversion right arising upon a Corporate Change or Ownership Change
shall be the 45th day after the mailing of the Special Conversion Notice.
(E) Definitions. The following definitions shall apply to terms used in
this Section 7:
(i) a "Corporate Change" with respect to the Corporation means (1) the
occurrence of any transaction or event in connection with which all or
substantially all of the Common Stock of the Corporation shall be
exchanged for, converted into, acquired for or constitute solely the
right to receive cash, securities, property or other assets (whether by
means of an exchange offer, liquidation, tender offer, consolidation,
merger, combination, reclassification, recapitalization or otherwise) or
(2) the conveyance, sale, lease, assignment, transfer or other disposal
of all or substantially all of the Corporation's property, business or
assets;
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(ii) an "Ownership Change" with respect to the Corporation shall be
deemed to have occurred at such time as any person together with any of
its Affiliates or Associates (as defined herein) becomes the beneficial
owner, directly or indirectly, of more than thirty percent (30%) of the
outstanding voting stock of the Corporation pursuant to a transaction
that does not constitute a Corporate Change with respect to the
Corporation. An "Affiliate" of a specified person is a person that
directly or indirectly controls, or is controlled by, or is under common
control with, the person specified. An "Associate" of a person means (1)
any corporation or organization, other than the Corporation or any
subsidiary of the Corporation, of which the person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten
percent (10%) or more of any class of equity securities; (2) any trust or
estate in which the person has a substantial beneficial interest or as to
which the person serves as trustee or in a similar fiduciary capacity;
and (3) any relative or spouse of the person, or any relative of the
spouse, who has the same home as the person or who is a director or
officer of the person or any of its parents or subsidiaries. As used
herein, a person shall be deemed to have "beneficial ownership" with
respect to, and shall be deemed to "beneficially own," any securities of
the Corporation in accordance with Section 13 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations (including Rule
13d-3, Rule 13d-5 and any successor rules) promulgated by the Securities
and Exchange Commission thereunder; provided that a person shall be
deemed to have beneficial ownership of all securities that any such
person has a right to acquire whether such right is exercisable
immediately or only after the passage of time and without regard to the
60-day limitation referred to in Rule 13d-3;
(iii) the "Adjusted Value" of a share of Series A Preferred Stock is an
amount equal to the Stated Value; provided, however, that if the
Reference Value of a share of Common Stock exceeds both the Market Value
of a share of Common Stock and the Applicable Value, then the Adjusted
Value shall be determined by multiplying the greater of the Market Value
of a share of Common Stock and the Applicable Value by the quotient of
the Stated Value of a share of Series A Preferred Stock divided by the
Reference Value per share of Common Stock;
(iv) the "Applicable Value" shall be an amount equal to the sum of the
cash, Market Value of Marketable Stock and the value of any other
securities, property or other consideration distributed to holders of
Common Stock for each share of Common Stock upon or in connection with a
Corporate Change;
(v) the "Market Value" of the Common Stock, or of the common stock of
the corporation that is the successor to all or substantially all of the
business and assets of the Corporation as the result of a Corporate
Change, shall be the average of the closing market price of such Common
Stock or other common stock, as the case may be, for the five business
days ending on the last business day preceding the date of the Ownership
Change or Corporate Change;
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(vi) "Marketable Stock" shall mean the Common Stock of the Corporation,
or common stock of any corporation that is the successor to all or
substantially all of the business and Stock exceeds the exercise price of
the Warrant; and
(vii) "Stated Value" of a share of Series A Preferred Stock converted
during the 45-day period following the occurrence of a Corporate Change
or an Ownership Change shall mean the price per share the Corporation
would be required to pay if it exercised its option to redeem such shares
on the Conversion Date plus an amount equal to the amount by which the
Market Value of the Common Stock exceeds the exercise price of the
Warrant; and
(viii) "Reference Value" shall initially mean $1.92 per share of Common
Stock; provided, however, that in the event of any adjustment to the
Conversion Price, the Reference Value shall also be adjusted so that the
ratio of the Reference Value to the Conversion Price, after giving effect
to any such adjustment, shall always be the same as the ratio of $1.92 to
the initial Conversion Price.
8. Reacquired Shares
Any shares of Series A Preferred Stock redeemed, converted, purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
upon their cancellation shall become authorized but unissued shares of
Preferred Stock without designation as to series and may thereafter be
reissued as part of a new series of Preferred Stock to be created by
resolution of the Board of Directors, but not as shares of Series A Preferred
Stock.
9. Outstanding Shares
For purposes hereof, all shares of Series A Preferred Stock shall be
deemed outstanding except (i) from any Redemption Date as defined in Section
5, all shares of Series A Preferred Stock that have been called for
redemption on that Redemption Date; (ii) from the date of surrender of
certificates representing shares of Series A Preferred Stock, all shares of
Series A Preferred Stock voluntarily converted into Common Stock; (iii) from
the effective date of any automatic conversion, all shares of Series A
Preferred Stock; and (iv) from the date of registration of transfer, all
shares of Series A Preferred Stock held of record by the Corporation or any
subsidiary of the Corporation.
C. Common Stock
1. Dividends. Subject to the provisions of this Certificate of
Incorporation relating to any series of Preferred Stock or 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.
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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.
2. Liquidation. In the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, 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 of any series of
Preferred Stock, the holders of the Common Stock of the corporation shall be
entitled at all meetings of stockholders to one vote for each share of such
stock held by them.
D. Prior, Parity or Junior Stock
Whether reference is made in this Article Fourth 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 in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation 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 and as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation 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 and
each ranks prior to the Common Stock. Common Stock ranks junior to Preferred
Stock.
V. The names and mailing addresses of the current directors of the
Corporation are:
Name Address
U.E. Patrick 301 West Michigan Avenue
Jackson, MI 49201
Walter G. Goodrich 333 Texas Street
Suite 1350
Shreveport, LA 71101
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The number of directors of the Corporation shall be as specified in, or
determined in the manner provided in, the bylaws. Election of directors
need not be by written ballot.
VI. In furtherance of, and not in limitation of, the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the bylaws of the Corporation.
VII. 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 or
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, or the Corporation, as the case may be, and also on the
Corporation.
VIII. 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 liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director.
IX. All actions which are required to be or may be taken by the stockholders
of the Corporation shall be taken at a meeting of the stockholders, duly
held and upon proper notice, may not be taken by written consent without a
meeting, and the power of stockholders to consent in writing to the taking
of any action is specifically denied.
X. The Corporation shall have the right, subject to any express provisions or
restrictions contained in the certificate of incorporation or bylaws of
the Corporation, from time to time, to amend the certificate of
incorporation or any provision thereof in any manner now or hereafter
provided by law, and all rights and powers of any kind conferred upon a
director or stockholder of the Corporation by the certificate of
incorporation or any amendment thereof are subject to such right of the
corporation.
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