Attached files
Exhibit 3.2
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
YUMA
ENERGY, INC.
Yuma
Energy, Inc. (the “Corporation”), a corporation
organized and existing under the laws of the State of Delaware,
hereby certifies as follows:
A. The
original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on February
10, 2016 under the name Yuma Delaware Merger Subsidiary, Inc.; and
the date of the filing of its Certificate of Amendment with the
Secretary of State of the State of Delaware, changing the
Corporation’s name to Yuma Energy, Inc., was October 26,
2016.
B. This
Amended and Restated Certificate of Incorporation was duly adopted
in accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware (the “DGCL”), and has been duly approved
by the written consent of the stockholder of the Corporation in
accordance with Section 228 of the DGCL.
C. The
Certificate of Incorporation of the Corporation is hereby amended
and restated in its entirety to read as follows:
ARTICLE
I
The
name of the Corporation is Yuma Energy, Inc.
ARTICLE
II
The
address of the Corporation’s registered office in the State
of Delaware is 2711 Centerville Road, Suite 400, City of
Wilmington, County of New Castle, Delaware 19808. The name of the
registered agent at that address is Corporation Service
Company.
ARTICLE
III
The
purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the
DGCL.
ARTICLE
IV
A. Classes
of Stock. The total number of shares of stock that the
Corporation shall have authority to issue is 120,000,000,
consisting of 100,000,000 shares of Common Stock, $0.001 par value
per share, and 20,000,000 shares of Preferred Stock, $0.001 par
value per share.
B. Increase
or Decrease in Authorized Capital Stock. The Board of
Directors is further authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but
not below the number of shares of any such series then outstanding)
the number of shares of any series, the number of which was fixed
by it, subsequent to the issuance of shares of such series then
outstanding, subject to the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof stated in this
Certificate of Incorporation or the resolution of the Board of
Directors originally fixing the number of shares of such series. If
the number of shares of any series is so decreased, then the shares
constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the
number of shares of such series.
C. Rights
of Preferred Stock. The Board of Directors is authorized,
subject to limitations prescribed by law, to provide for the
issuance of shares of Preferred Stock in series and to fix by
resolution or resolutions the designations, powers, preferences and
rights, and the qualifications, limitations or restrictions
thereof, of any wholly unissued series of Preferred Stock,
including without limitation authority to fix by resolution or
resolutions the dividend rights, dividend rate, conversion rights,
voting rights, rights and terms of redemption (including sinking
fund provisions), redemption price or prices, and liquidation
preferences of any such series, and the number of shares
constituting any such series and the designation thereof, or any of
the foregoing.
D. Rights
of Common Stock. Each share of Common Stock shall entitle
the holder thereof to one (1) vote on each matter submitted to a
vote or for the consent of holders of Common Stock.
ARTICLE
V
A. General
Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. In
addition to the powers and authority expressly conferred upon them
by statute or by this Certificate of Incorporation or the Bylaws of
the Corporation, the directors are hereby empowered to exercise all
such powers and do all such acts and things as may be exercised or
done by the Corporation.
B. Number
of Directors; Election. Subject to the rights of holders of
any series of Preferred Stock with respect to the election of
directors, the number of directors that constitutes the entire
Board of Directors of the Corporation shall be fixed by or in the
manner provided in the Bylaws of the Corporation. Subject to the
rights of holders of any series of Preferred Stock with respect to
the election of directors, each director of the Corporation shall
hold office until the expiration of the term for which he or she is
elected and until his or her successor has been duly elected and
qualified or until his or her earlier resignation, death or
removal.
C. Classified
Board Structure. Effective upon the acceptance of this
Certificate of Incorporation for filing by the Secretary of State
of the State of Delaware (the “Effective Date”), and subject to
the rights of holders of any series of Preferred Stock with respect
to the election of directors, the directors of the Corporation
shall be divided into three classes as nearly equal in size as is
practicable, hereby designated Class I, Class II and Class III. The
Board of Directors may assign members of the Board of Directors
already in office to such classes at the time such classification
becomes effective. The term of office of the initial Class I
directors shall expire at the first regularly-scheduled annual
meeting of stockholders following the Effective Date, the term of
office of the initial Class II directors shall expire at the second
annual meeting of stockholders following the Effective Date and the
term of office of the initial Class III directors shall expire at
the third annual meeting of stockholders following the Effective
Date. At each annual meeting of stockholders, commencing with the
first regularly-scheduled annual meeting of stockholders following
the Effective Date, each of the successors elected to replace the
directors of a Class whose term shall have expired at such annual
meeting shall be elected to hold office until the third annual
meeting next succeeding his or her election and until his or her
respective successor shall have been duly elected and
qualified.
Notwithstanding the
foregoing provisions of this Article V, and subject to the rights
of holders of any series of Preferred Stock with respect to the
election of directors, each director shall serve until his or her
successor is duly elected and qualified or until his or her death,
resignation, or removal. Subject to the rights of holders of any
series of Preferred Stock with respect to the election of
directors, if the number of directors is hereafter changed, any
newly created directorships or decrease in directorships shall be
so apportioned among the classes as to make all classes as nearly
equal in number as is practicable, provided
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that no
decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent
director.
Notwithstanding the
foregoing provisions of this Article V, beginning on the first date
on which the former stockholders of Davis Petroleum Acquisition
Corp. (“DPAC”)
beneficially own less than fifty percent (50%) of the aggregate
voting power of all outstanding shares of stock entitled to vote in
the election of the Corporation’s directors (the
“Trigger Date”),
and subject to the rights of the holders of any Preferred Stock to
elect additional directors under circumstances specified herein or
in the designation for any series of Preferred Stock, at each
annual meeting of the stockholders after the Trigger Date, each of
the successors elected to replace a director whose term of office
shall expire at such annual meeting (including directors who are
reelected) shall serve for a term of one year ending on the date of
the next annual meeting of stockholders and until his or her
respective successor shall have been duly elected and qualified.
The Corporation shall be entitled to rely on all filings, if any,
submitted by such former DPAC stockholders with any governmental
agencies or, exclusively for purposes of this provision, on a
certificate from such former DPAC stockholder certifying to the
Corporation as to such former DPAC stockholder’s beneficial
ownership.
D. Removal;
Vacancies. Subject to the rights of holders of any series of
Preferred Stock with respect to the election of directors, any
director may be removed from office by the stockholders of the
Corporation only for cause. Vacancies occurring on the Board of
Directors for any reason and newly created directorships resulting
from an increase in the authorized number of directors may be
filled only by vote of a majority of the remaining members of the
Board of Directors, although less than a quorum, or by a sole
remaining director, at any meeting of the Board of Directors. A
person so elected by the Board of Directors to fill a vacancy or
newly created directorship shall hold office until the next
election of the class for which such director shall have been
chosen and until his or her successor shall be duly elected and
qualified.
ARTICLE
VI
A. Amendment
of Bylaws. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors of the
Corporation is expressly authorized to adopt, amend or repeal the
Bylaws of the Corporation.
B. Written
Ballot. Elections of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
C. Stockholder
Action by Written Consent. Any action required to be taken
at any annual or special meeting of stockholders, or any action
which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted, and
shall be delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal executive offices,
or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are
recorded.
D. Special
Meetings. Special meetings of the stockholders may be called
only by (i) the Board of Directors pursuant to a resolution adopted
by a majority of the Board; (ii) the chairperson of the Board of
Directors; (iii) the chief executive officer of the Corporation;
(iv) the president of the Corporation (in the absence of a chief
executive officer); or (v) the secretary of the Corporation
whenever requested in writing to do so by holders of at least ten
percent (10%) of the voting power of the issued and outstanding
shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, but a
special meeting may not be called by any other person or
persons.
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E. No
Cumulative Voting. No stockholder will be permitted to
cumulate votes at any election of directors.
ARTICLE
VII
Unless
the Corporation consents in writing to the selection of an
alternative forum, the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the
Corporation, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any director, officer or other employee of
the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim arising
pursuant to any provision of the DGCL, or (iv) any action
asserting a claim governed by the internal affairs doctrine shall
be a state or federal court located within the State of Delaware,
in all cases subject to the court’s having personal
jurisdiction over the indispensable parties named as defendants.
Any person or entity purchasing or otherwise acquiring any interest
in shares of capital stock of the Corporation shall be deemed to
have notice of and consented to the provisions of this ARTICLE
VII.
ARTICLE
VIII
To the
fullest extent permitted by the DGCL, as it presently exists or may
hereafter be amended from time to time, a director of the
Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty
as a director. If the DGCL is amended to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended.
Neither
any amendment nor repeal of this ARTICLE VIII, nor the adoption of
any provision of the Corporation’s Certificate of
Incorporation inconsistent with this ARTICLE VIII, shall eliminate
or reduce the effect of this ARTICLE VIII in respect of any matter
occurring, or any cause of action, suit or proceeding accruing or
arising or that, but for this ARTICLE VIII, would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent
provision.
ARTICLE
IX
Subject
to any provisions in the Bylaws of the Corporation related to
indemnification of directors or officers of the Corporation, the
Corporation shall indemnify, to the fullest extent permitted by
applicable law, any director or officer of the Corporation who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
“Proceeding”) by
reason of the fact that he or she is or was a director, officer,
employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with any such Proceeding.
The
Corporation shall have the power to indemnify, to the extent
permitted by the DGCL, as it presently exists or may hereafter be
amended from time to time, any employee or agent of the Corporation
who was or is a party or is threatened to be made a party to any
Proceeding by reason of the fact that he or she is or was a
director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise,
including service with respect to employee benefit plans, against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such
person in connection with any such Proceeding.
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A right
to indemnification or to advancement of expenses arising under a
provision of this Certificate of Incorporation or a bylaw of the
Corporation shall not be eliminated or impaired by an amendment to
this Certificate of Incorporation or the Bylaws of the Corporation
after the occurrence of the act or omission that is the subject of
the civil, criminal, administrative or investigative action, suit
or proceeding for which indemnification or advancement of expenses
is sought, unless the provision in effect at the time of such act
or omission explicitly authorizes such elimination or impairment
after such action or omission has occurred.
ARTICLE
X
If any
provision of this Certificate of Incorporation becomes or is
declared on any ground by a court of competent jurisdiction to be
illegal, unenforceable or void, portions of such provision, or such
provision in its entirety, to the extent necessary, shall be
severed from this Certificate of Incorporation, and the court will
replace such illegal, void or unenforceable provision of this
Certificate of Incorporation with a valid and enforceable provision
that most accurately reflects the Corporation’s intent, in
order to achieve, to the maximum extent possible, the same
economic, business and other purposes of the illegal, void or
unenforceable provision. The balance of this Certificate of
Incorporation shall be enforceable in accordance with its
terms.
Except
as provided in ARTICLE VIII and ARTICLE IX above, the Corporation
reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation;
provided, however, that, notwithstanding any other provision of
this Certificate of Incorporation or any provision of law that
might otherwise permit a lesser vote or no vote, but in addition to
any vote of the holders of any class or series of the stock of the
Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of not less than
a majority of the voting power of the issued and outstanding shares
of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to
amend or repeal, or adopt any provision of this Certificate of
Incorporation inconsistent with, ARTICLE V, ARTICLE VI, ARTICLE
VII, ARTICLE VIII, ARTICLE IX or this ARTICLE X.
IN WITNESS WHEREOF, Yuma Energy, Inc.
has caused this Amended and Restated Certificate of Incorporation
to be signed by the Chief Executive Officer of the Corporation on
this 26th day of October,
2016.
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