Attached files
file | filename |
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8-K - FORM 8-K - PostRock Energy Corp | h70087e8vk.htm |
EX-3.2 - EX-3.2 - PostRock Energy Corp | h70087exv3w2.htm |
EX-10.8 - EX-10.8 - PostRock Energy Corp | h70087exv10w8.htm |
EX-10.6 - EX-10.6 - PostRock Energy Corp | h70087exv10w6.htm |
EX-10.4 - EX-10.4 - PostRock Energy Corp | h70087exv10w4.htm |
EX-10.9 - EX-10.9 - PostRock Energy Corp | h70087exv10w9.htm |
EX-10.3 - EX-10.3 - PostRock Energy Corp | h70087exv10w3.htm |
EX-10.7 - EX-10.7 - PostRock Energy Corp | h70087exv10w7.htm |
EX-10.2 - EX-10.2 - PostRock Energy Corp | h70087exv10w2.htm |
EX-10.5 - EX-10.5 - PostRock Energy Corp | h70087exv10w5.htm |
EX-10.1 - EX-10.1 - PostRock Energy Corp | h70087exv10w1.htm |
EX-10.14 - EX-10.14 - PostRock Energy Corp | h70087exv10w14.htm |
EX-10.10 - EX-10.10 - PostRock Energy Corp | h70087exv10w10.htm |
EX-10.12 - EX-10.12 - PostRock Energy Corp | h70087exv10w12.htm |
EX-10.11 - EX-10.11 - PostRock Energy Corp | h70087exv10w11.htm |
EX-10.13 - EX-10.13 - PostRock Energy Corp | h70087exv10w13.htm |
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
of
POSTROCK ENERGY CORPORATION
of
POSTROCK ENERGY CORPORATION
POSTROCK ENERGY CORPORATION, a corporation organized and existing under the laws of the State
of Delaware (the Corporation), does hereby certify as follows:
1. The name of the Corporation is PostRock Energy Corporation The Corporation was originally
incorporated under the name New Quest Holdings Corp. and the original Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on July 2, 2009.
2. This Restated Certificate of Incorporation was duly adopted in accordance with Section 245
of the General Corporation Law of the State of Delaware. Pursuant to Sections 242 and 228 of the
General Corporation Law of the State of Delaware, the amendments and restatement herein set forth
have been duly adopted by the Board of Directors and the sole stockholder of the Corporation.
3. Pursuant to Section 245 of the General Corporation Law of the State of Delaware, the
Certificate of Incorporation, as heretofore amended, is hereby amended and restated to read in its
entirety as set forth on Exhibit A attached hereto and, as so amended and restated, such
Certificate of Incorporation shall be the Restated Certificate of Incorporation of the Corporation
until such time as it may be amended or restated in accordance with applicable law and the
provisions thereof.
4. This Restated Certificate of Incorporation shall become effective at 5:30 p.m. Eastern
time, on March 5, 2010.
[signature page follows]
IN WITNESS WHEREOF, PostRock Energy Corporation has caused this Restated Certificate of
Incorporation to be executed by David Lawler, its President, this 5th day of March, 2010.
/s/ David Lawler | ||||
David Lawler | ||||
President | ||||
Exhibit A
RESTATED CERTIFICATE OF INCORPORATION
of
POSTROCK ENERGY CORPORATION
of
POSTROCK ENERGY CORPORATION
FIRST: The name of the corporation is PostRock Energy Corporation (the Corporation).
SECOND: The address of the registered office of the Corporation in the State of Delaware is
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 business, act or activity
for which corporations may be organized under the General Corporation Law of the State of Delaware
or any successor statute (the DGCL).
FOURTH: The total number of shares of all classes of capital stock which the Corporation
shall have authority to issue is 45,000,000 shares, which shall be divided into (a) 40,000,000
shares of common stock, par value $.01 per share (the Common Stock), and (b) 5,000,000 shares of
preferred stock, par value $.01 per share (the Preferred Stock). Shares of any class of capital
stock of the Corporation may be issued for such consideration and for such corporate purposes as
the Board of Directors of the Corporation (the Board of Directors) may from time to time
determine.
The Preferred Stock may be divided into and issued from time to time in one or more series as
may be fixed and determined by the Board of Directors. The relative rights and preferences of the
Preferred Stock of each series shall be such as shall be stated in any resolution or resolutions
adopted by the Board of Directors setting forth the designation of the series and fixing and
determining the relative rights and preferences thereof, any such resolution or resolutions being
herein called a Directors Resolution. The authority of the Board of Directors with respect to
each series of Preferred Stock 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, if any, or any method of computing the dividend on the shares
of that series, whether dividends shall be cumulative, and, if so, from which date or dates, and
the relative rights of priority, if any, of payment of dividends on shares of that series;
(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 or
exchange privileges, and, if so, the terms and conditions of such conversion or exchange, including
provisions for adjustment of the conversion or exchange rate in such events 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 different conditions and at different redemption dates; (vi) 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; (vii) 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; and (viii) any other
relative rights, preferences and limitations of that series.
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Except as otherwise provided in this Article Fourth or required by law, each registered holder
of Common Stock shall be entitled to one vote for each share of Common Stock held by such holder on
each matter properly submitted to the stockholders of the Corporation for their vote; provided,
however, that, except as otherwise required by law, holders of Common Stock shall not be entitled
to vote on any amendment to this Certificate of Incorporation (including any Certificate of
Designation with respect to a series of Preferred Stock) that relates solely to the terms of one or
more outstanding series of Preferred Stock if the holders of such affected series are entitled,
either separately or together as a class with the holders of one or more other such series, to vote
thereon by law or pursuant to this Certificate of Incorporation (including any such Certificate of
Designation).
Except as otherwise provided in this Article Fourth or required by law and subject to the
rights of the holders of any series of Preferred Stock, (i) holders of Common Stock shall be
entitled to elect directors of the Corporation; and (ii) holders of Common Stock shall be entitled
to vote on all other matters properly submitted to a vote of stockholders of the Corporation.
The number of authorized shares of any of the Preferred Stock or the Common Stock may be
increased or decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority in voting power of the stock of the Corporation
entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any
successor provision thereto), and no vote of the holders of any of the Preferred Stock or the
Common Stock voting separately as a class shall be required therefor.
No stockholder shall, by reason of the holding of shares of any class or series of capital
stock of the Corporation, have a preemptive or preferential right to acquire or subscribe for any
shares or securities of any class, whether now or hereafter authorized, which may at any time be
issued, sold or offered for sale by the Corporation, unless specifically provided for in a
Directors Resolution with respect to a series of Preferred Stock. Furthermore, Common Stock is
not convertible, redeemable or assessable, or entitled to the benefits of any sinking fund.
Cumulative voting of shares of any class or series of capital stock having voting rights is
prohibited unless specifically provided for in a Directors Resolution with respect to a series of
Preferred Stock.
FIFTH: (a) Directors. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the authority and powers conferred
upon the Board of Directors by the DGCL or by the other provisions of this Certificate of
Incorporation, the Board of Directors is hereby authorized and empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the Corporation, subject to
the provisions of the DGCL, this Certificate of Incorporation and the Bylaws of the Corporation.
(b) Number, Election and Term of Directors. The number of directors of the Corporation that
shall constitute the Board of Directors shall be fixed from time to time exclusively by, and may be
increased or decreased from time to time exclusively by, the affirmative vote of a majority of the
Whole Board (as defined below), subject to such rights of holders of shares of an outstanding
series of Preferred Stock to elect one or more directors
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pursuant to any provisions contained in a Directors Resolution with respect to such series.
Each director shall serve for a term ending on the first annual meeting of stockholders following
the annual meeting of stockholders at which such director was elected. Each director shall hold
office until the annual meeting of stockholders at which such directors term expires and, the
foregoing notwithstanding, shall serve until his or her successor shall have been duly elected and
qualified or until his or her earlier death, resignation or removal.
Election of directors need not be by written ballot unless the Bylaws of the Corporation shall
so provide.
For purposes hereof, the term Whole Board shall mean the total number of authorized
directors, whether or not there exist any vacancies in previously authorized directorships.
(c) Removal of Directors. A director of the Corporation may be removed from office as a
director, with or without cause, by the affirmative vote of the holders of a majority of the voting
power of the then issued and outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class.
Notwithstanding the foregoing, whenever holders of outstanding shares of one or more series of
Preferred Stock are entitled to elect directors of the Corporation pursuant to the provisions
applicable in the case of arrearages in the payment of dividends or other defaults contained in the
Directors Resolution with respect to such series, any such director of the Corporation so elected
may be removed in accordance with the provisions of such Directors Resolution.
(d) Vacancies on Board of Directors. Except as provided in a Directors Resolution with
respect to a series of Preferred Stock, newly created directorships resulting from any increase in
the authorized number of directors and any vacancies on the Board of Directors resulting from
death, resignation, removal or other cause may be filled by the affirmative vote of a majority of
the remaining directors then in office, even if such remaining directors constitute less than a
quorum of the Board of Directors, or, if there are no directors remaining, by the stockholders.
Any director elected in accordance with the preceding sentence shall serve for a term ending on the
next annual meeting of stockholders following his or her election to the Board of Directors and
until such directors successor shall have been duly elected and qualified or until his or her
earlier death, resignation or removal. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
(e) Amendment of Bylaws. The Board of Directors shall have the power to adopt, amend or
repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of the
Corporation by the Board of Directors shall require the approval of a majority of the Whole Board.
The stockholders shall also have the power to adopt, amend or repeal the Bylaws of the Corporation
at any meeting before which such matter has been properly brought in accordance with the Bylaws of
the Corporation by the affirmative vote of the holders of a majority of the voting power of the
then issued and outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class. No Bylaws hereafter
adopted, or any amendments thereto, shall invalidate any prior act of the Board of Directors that
was valid at the time it was taken.
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SIXTH: Any action required or permitted to be taken by the stockholders of the Corporation
must be effected at an annual or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders, and the power of the stockholders of the
Corporation to consent in writing, without a meeting, to the taking of any action is specifically
denied. Notwithstanding anything in this Certificate of Incorporation or the Bylaws of the
Corporation to the contrary, the affirmative vote of the holders of at least 80% of the voting
power of the then issued and outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class, shall be required
to alter, amend or adopt any provision inconsistent with, or to repeal, this Article Sixth.
SEVENTH: Except as otherwise required by law, or as may be prescribed in a Directors
Resolution, special meetings of stockholders of the Corporation may be called only (i) by the
Chairman of the Board of Directors of the Corporation, if there is one, (ii) by the Chief Executive
Officer of the Corporation, if there is one, (iii) by the Board of Directors or (iv) upon the
request of at least three directors of the Corporation, and no such special meeting may be called
by any other person or persons.
EIGHTH: No director of the Corporation shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted by the DGCL as it now exists or as it may hereafter be amended. Any repeal or
modification of this Article Eighth by the stockholders of the Corporation shall be prospective
only, and shall not adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
NINTH: Whenever a compromise or arrangement is proposed between this corporation and its
creditors or any class of them and/or between this 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 this corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under § 291 of Title 8 of the Delaware
Code or on the application of trustees in dissolution or of any receiver or receivers appointed for
this corporation under § 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 this 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 this corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this corporation as 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, of this
corporation, as the case may be, and also on this corporation.
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