Attached files
file | filename |
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10-K - FORM 10-K - Resolute Energy Corp | d71534e10vk.htm |
EX-21 - EX-21 - Resolute Energy Corp | d71534exv21.htm |
EX-32 - EX-32 - Resolute Energy Corp | d71534exv32.htm |
EX-3.2 - EX-3.2 - Resolute Energy Corp | d71534exv3w2.htm |
EX-23.4 - EX-23.4 - Resolute Energy Corp | d71534exv23w4.htm |
EX-99.2 - EX-99.2 - Resolute Energy Corp | d71534exv99w2.htm |
EX-10.1 - EX-10.1 - Resolute Energy Corp | d71534exv10w1.htm |
EX-31.1 - EX-31.1 - Resolute Energy Corp | d71534exv31w1.htm |
EX-23.1 - EX-23.1 - Resolute Energy Corp | d71534exv23w1.htm |
EX-23.2 - EX-23.2 - Resolute Energy Corp | d71534exv23w2.htm |
EX-23.3 - EX-23.3 - Resolute Energy Corp | d71534exv23w3.htm |
EX-99.1 - EX-99.1 - Resolute Energy Corp | d71534exv99w1.htm |
EX-31.2 - EX-31.2 - Resolute Energy Corp | d71534exv31w2.htm |
EX-10.14 - EX-10.14 - Resolute Energy Corp | d71534exv10w14.htm |
EX-10.13 - EX-10.13 - Resolute Energy Corp | d71534exv10w13.htm |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RESOLUTE ENERGY CORPORATION
CERTIFICATE OF INCORPORATION
OF
RESOLUTE ENERGY CORPORATION
Resolute Energy Corporation, a corporation organized and existing under the laws of the State
of Delaware, DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is Resolute Energy Corporation The Corporation was
originally incorporated under the name Resolute Energy Corporation, and the original certificate
of incorporation was filed with the Secretary of State of the State of Delaware on July 28, 2009.
2. This Amended and Restated Certificate of Incorporation (Certificate) was duly adopted by
the Board of Directors and the stockholders of the Corporation in accordance with Sections 228, 242
and 245 of the General Corporation Law of the State of Delaware.
3. This Certificate restates, integrates and further amends the provisions of the certificate
of incorporation of the Corporation.
4. The text of the certificate of incorporation is hereby restated and amended to read in its
entirety as follows:
ARTICLE I
NAME
NAME
The name of the corporation is Resolute Energy Corporation (the Corporation).
ARTICLE II
PURPOSE
PURPOSE
The purpose for which the Corporation is organized 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 DGCL).
ARTICLE III
REGISTERED AGENT
REGISTERED AGENT
The street address of the registered office of the Corporation in the State of Delaware is
615 South Dupont Highway, City of Dover, County of Kent, Delaware
19901, and the name of
the Corporations registered agent at such address is National
Corporate Research, Ltd.
ARTICLE IV
CAPITALIZATION
CAPITALIZATION
Section 4.1 Authorized Capital Stock.
The total number of shares of all classes of capital stock that the Corporation is authorized
to issue is 226,000,000 shares, consisting of 225,000,000 shares of common stock, par value $0.0001
per share (the Common Stock), and 1,000,0000 shares of preferred stock, par value $0.0001 per
share (the Preferred Stock).
Section 4.2 Preferred Stock.
(a) The Preferred Stock may be issued from time to time in one or more series. The Board of
Directors (the Board) is hereby expressly authorized to provide for the issuance of shares of
Preferred Stock in one or more series and to establish from time to time the number of shares to be
included in each such series and to fix the voting powers, if any, designations, powers,
preferences and relative, participating, optional and other special rights, if any, of each such
series and the qualifications, limitations and restrictions thereof, as shall be stated in the
resolution(s) adopted by the Board providing for the issuance of such series and included in a
certificate of designations (a Preferred Stock Designation) filed pursuant to the DGCL.
(b) The number of authorized shares of Preferred 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 of the outstanding shares of Common Stock, without a vote of the holders of the Preferred
Stock, or any series thereof, unless a vote of any such holders of Preferred Stock is required
pursuant to another provision of this Certificate (including any Preferred Stock Designation).
Section 4.3 Common Stock.
(a) The holders of shares of Common Stock shall be entitled to one vote for each such
share on each matter properly submitted to the stockholders on which the holders of shares
of Common Stock are entitled to vote. Except as otherwise required by law or this
Certificate (including any Preferred Stock Designation), at any annual or special meeting of
the stockholders the Common Stock shall have the exclusive right to vote for the election of
directors, and on all other matters properly submitted to a vote of the stockholders.
Notwithstanding the foregoing, except as otherwise required by law or this Certificate
(including a Preferred Stock Designation), holders of Common Stock shall not be entitled to
vote on any amendment to this Certificate (including any amendment to any Preferred Stock
Designation) 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
with the holders of one or more other such series, to vote thereon pursuant to this
Certificate (including any Preferred Stock Designation.)
(b) Subject to the rights of the holders of Preferred Stock, the holders of shares of
Common Stock shall be entitled to receive such dividends and other distributions (payable in
cash, property or capital stock of the Corporation) when, as and if declared thereon by the
Board from time to time out of any assets or funds of the
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Corporation legally available therefor and shall share equally on a per share basis in
such dividends and distributions.
(c) In the event of any voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation, after payment or provision for payment of the debts and other
liabilities of the Corporation, and subject to the rights of the holders of Preferred Stock
in respect thereof, the holders of shares of Common Stock shall be entitled to receive all
the remaining assets of the Corporation available for distribution to its stockholders,
ratably in proportion to the number of shares of Common Stock held by them.
ARTICLE V
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 5.1 Board Powers.
The business and affairs of the Corporation shall be managed by, or under the direction of,
the Board. In addition to the powers and authority expressly conferred upon the Board by statute,
this Certificate or the By-Laws (By-Laws) of the Corporation, the Board is hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the DGCL, this Certificate and any By-Laws
adopted by the stockholders; provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the Board that would have been valid if such By-Laws
had not been adopted.
Section 5.2 Number, Election and Term.
(a) The number of directors of the Corporation, other than those who may be elected by
the holders of one or more series of Preferred Stock voting separately by class or series,
shall be fixed from time to time exclusively by the Board pursuant to a resolution adopted
by a majority of the Whole Board. For purposes of this Certificate, Whole Board shall
mean the total number of directors the Corporation set by resolution adopted as set forth in
the prior sentence at a given point in time if there were no vacancies.
(b) Subject to Section 5.5, the directors shall be divided into three classes,
as nearly equal in number as possible and designated Class I, Class II and Class III. The
initial division of the Board into classes shall be made by the Board. The term of the
initial Class I Directors shall terminate at the annual meeting of stockholders to be held
in 2010; the term of the initial Class II Directors shall terminate at the annual meeting of
stockholders to be held in 2011; and the term of the initial Class III Directors shall
terminate at the annual meeting of stockholders to be held in 2012. At each succeeding
annual meeting of stockholders beginning in 2010, successors to the class of directors whose
term expires at that annual meeting shall be elected for a three-year term. Subject to
Section 5.5, if the number of directors is changed, any increase or decrease shall
be apportioned by the Board among the classes so as to maintain the number of directors in
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each class as nearly equal as possible, but in no case will a decrease in the number of
directors shorten the term of any incumbent director.
(c) Subject to Section 5.5, a director shall hold office until the annual
meeting for the year in which his or her term expires and until his or her successor has
been elected and qualified, subject, however, to such directors earlier death, resignation,
retirement, disqualification or removal.
(d) Unless and except to the extent that the By-Laws shall so require, the election of
directors need not be by written ballot.
Section 5.3 Newly Created Directorships and Vacancies.
Subject to Section 5.5, newly created directorships resulting from an increase in the
number of directors and any vacancies on the Board resulting from death, resignation, retirement,
disqualification, removal or other cause may be filled solely by a majority vote of the directors
then in office, even if less than a quorum, or by a sole remaining director (and not by
stockholders), and any director so chosen shall hold office for the remainder of the full term of
the class of directors to which the new directorship was added or in which the vacancy occurred and
until his or her successor has been elected and qualified, subject, however, to such directors
earlier death, resignation, retirement, disqualification or removal.
Section 5.4 Removal.
Subject to Section 5.5, any or all of the directors may be removed from office at any
time, but only for cause and only by the affirmative vote of holders of a majority of the voting
power of all then outstanding shares of capital stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class.
Section 5.5 Preferred Stock Directors.
Notwithstanding any other provision of this Article V, and except as otherwise
required by law, whenever the holders of one or more series of Preferred Stock shall have the
right, voting separately by class or series, to elect one or more directors, the term of office,
the filling of vacancies, the removal from office and other features of such directorships shall be
governed by the terms of such series of Preferred Stock as set forth in this Certificate (including
any Preferred Stock Designation) and such directors shall not be included in any of the classes
created pursuant to this Article V unless expressly provided by such terms.
ARTICLE VI
BY-LAWS
BY-LAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board shall
have the power to adopt, amend, alter or repeal the By-Laws. The affirmative vote of a majority of
the Whole Board shall be required to adopt, amend, alter or repeal the By-Laws. The By-Laws also
may be adopted, amended, altered or repealed by the stockholders; provided, however, that in
addition to any vote of the holders of any class or series of capital stock of the Corporation
required by law or by this Certificate (including any Preferred Stock Designation),
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the
affirmative vote of the holders of at least 66 2/3% of the voting power of all then
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 for the stockholders to adopt,
amend, alter or repeal the By-Laws.
ARTICLE VII
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
Section 7.1 No Action by Written Consent.
Except as otherwise expressly provided by the terms of any series of Preferred Stock
permitting the holders of such series of Preferred Stock to act by written consent, any action
required or permitted to be taken by stockholders of the Corporation must be effected at a duly
called annual or special meeting of the stockholders.
Section 7.2 Meetings.
Except as otherwise required by law or the terms of any one or more series of Preferred Stock,
special meetings of stockholders of the Corporation may be called only by the Chairman of the
Board, Chief Executive Officer, President, or the Board pursuant to a resolution adopted by a
majority of the Whole Board, and the ability of the stockholders to call a special meeting is
hereby specifically denied.
Section 7.3 Advance Notice.
Advance notice of stockholder nominations for the election of directors and of business to be
brought by stockholders before any meeting of the stockholders of the Corporation shall be given in
the manner provided in the By-Laws.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1 Limitation of Personal Liability.
No person who is or was a 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, except to the extent such exemption from liability or limitation thereof is not permitted
by the DGCL as the same exists or hereafter may be amended. If the DGCL is hereafter amended to
authorize corporate action further limiting or eliminating the liability of directors, then the
liability of a director to the Corporation or its stockholders shall be limited or eliminated to
the fullest extent permitted by the DGCL, as so amended. Any repeal or amendment of this
Section 8.1 by the stockholders of the Corporation or by changes in law, or the adoption of
any other provision of this Certificate inconsistent with this Section 8.1 will, unless
otherwise required by law, be prospective only (except to the extent such amendment or change in
law permits the Corporation to further limit or eliminate the liability of directors) and shall not
adversely affect any right or protection of a director of the Corporation existing at the time of
such repeal or amendment or adoption of such inconsistent provision with respect to acts or
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omissions occurring prior to such repeal or amendment or adoption of such inconsistent
provision.
Section 8.2 Indemnification.
(a) Each person who is or was made a party or is threatened to be made a party to or is
otherwise involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a proceeding) by
reason of the fact that he or she is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter a Covered Person), whether the basis of such proceeding
is alleged action in an official capacity as a director, officer, employee or agent, or in
any other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent authorized or
permitted by applicable law, as the same exists or may hereafter be amended, against all
expense, liability and loss (including, without limitation, attorneys fees, judgments,
fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred
or suffered by such Covered Person in connection with such proceeding, and such right to
indemnification shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except for proceedings to enforce rights to
indemnification, the Corporation shall indemnify a Covered Person in connection with a
proceeding (or part thereof) initiated by such Covered Person only if such proceeding (or
part thereof) was authorized by the Board. The right to indemnification conferred by this
Section 8.2 shall be a contract right that shall fully vest at the time the Covered
Person first assumes his or her position as a director, officer, employee or agent and shall
include the right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any such proceeding in advance of its final disposition.
(b) The rights conferred on any Covered Person by this Section 8.2 shall not be
exclusive of any other rights that any Covered Person may have or hereafter acquire under
law, this Certificate, the By-Laws, an agreement, vote of stockholders or disinterested
directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by the stockholders of the
Corporation or by changes in law, or the adoption of any other provision of this Certificate
inconsistent with this Section 8.2, will, unless otherwise required by law, be
prospective only (except to the extent such amendment or change in law permits the
Corporation to provide broader indemnification rights on a retroactive basis than permitted
prior thereto), and will not in any way diminish or adversely affect any right or protection
existing at the time of such repeal or amendment or adoption of such inconsistent provision
in respect of any act or omission occurring prior to such repeal or amendment or adoption of
such inconsistent provision.
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(d) This Section 8.2 shall not limit the right of the Corporation, to the
extent and in the manner authorized or permitted by law, to indemnify and to advance
expenses to persons other than Covered Persons.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Certificate (including any Preferred Stock Designation), in the manner now or hereafter
prescribed by this Certificate and the DGCL; and, except as set forth in Article VIII, all
rights, preferences and privileges herein conferred upon stockholders, directors or any other
persons by and pursuant to this Certificate in its present form or as hereafter amended are granted
subject to the right reserved in this Article; provided, however, that, notwithstanding any other
provision of this Certificate, and in addition to any other vote that may be required by law or any
Preferred Stock Designation, the affirmative vote of the holders of
at least 66 2/3% of the voting
power of all then 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 amend, alter
or repeal, or adopt any provision as part of this Certificate inconsistent with the purpose and
intent of, Article V, Article VI, Article VII or this Article IX.
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IN WITNESS WHEREOF, Resolute Energy Corporation has caused this Certificate to be duly
executed in its name and on its behalf by its Chief Executive Officer
this 21st day of
September, 2009.
RESOLUTE ENERGY CORPORATION |
||||
By: | /s/ Nicholas J. Sutton | |||
Name: | Nicholas J. Sutton | |||
Title: | Chief Executive Officer | |||
Signature
Page of the Amended and Restated Certificate of Incorporation