Attached files
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
OASIS PETROLEUM INC.
FIRST: The name of the corporation is Oasis Petroleum Inc. (the Corporation).
SECOND: The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801 in New Castle County, Delaware. The name of
its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
FOURTH: The total number of shares of stock which the Corporation shall have authority to
issue is 350,000,000 shares of capital stock, classified as (i) 50,000,000 shares of preferred
stock, par value $0.01 per share (Preferred Stock), and (ii) 300,000,000 shares of common
stock, par value $0.01 per share (Common Stock).
The designations and the powers, preferences, rights, qualifications, limitations and
restrictions of the Preferred Stock and Common Stock are as follows:
1. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to time in one or more classes or series, the
shares of each class or series to have such designations and powers, preferences, and rights, and
qualifications, limitations, and restrictions thereof, as are stated and expressed herein and in
the resolution or resolutions providing for the issue of such class or series adopted by the board
of directors of the Corporation as hereafter prescribed (a Preferred Stock Designation).
(b) Authority is hereby expressly granted to and vested in the board of directors of the
Corporation to authorize the issuance of the Preferred Stock from time to time in one or more
classes or series, and with respect to each class or series of the Preferred Stock, to fix and
state by the resolution or resolutions from time to time adopted providing for the issuance thereof
the designation and the powers, preferences, rights, qualifications, limitations and restrictions
relating to each class or series of the Preferred Stock, including, but not limited to, the
following:
(i) whether or not the class or series is to have voting rights, full, special or limited, or
is to be without voting rights, and whether or not such class or series is to be entitled to vote
as a separate class either alone or together with the holders of one or more other classes or
series of stock;
(ii) the number of shares to constitute the class or series and the designations thereof;
(iii) the preferences, and relative, participating, optional or other special rights, if any,
and the qualifications, limitations or restrictions thereof, if any, with respect to any class or
series;
(iv) whether or not the shares of any class or series shall be redeemable at the option of the
Corporation or the holders thereof or upon the happening of any specified event, and, if
redeemable, the redemption price or prices (which may be payable in the form of cash, notes,
securities or other property), and the time or times at which, and the terms and conditions upon
which, such shares shall be redeemable and the manner of redemption;
(v) whether or not the shares of a class or series shall be subject to the operation of
retirement or sinking funds to be applied to the purchase or redemption of such shares for
retirement, and, if such retirement or sinking fund or funds are to be established, the annual
amount thereof, and the terms and provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash, stock of the Corporation or
other property, the conditions upon which and the times when such dividends are payable, the
preference to or the relation to the payment of dividends payable on any other class or classes or
series of stock, whether or not such dividends shall be cumulative or noncumulative, and if
cumulative, the date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the holders of any class or
series thereof shall be entitled to receive upon the voluntary or involuntary dissolution of, or
upon any distribution of the assets of, the Corporation;
(viii) whether or not the shares of any class or series, at the option of the Corporation or
the holder thereof or upon the happening of any specified event, shall be convertible into or
exchangeable for, the shares of any other class or classes or of any other series of the same or
any other class or classes of stock, securities or other property of the Corporation and the
conversion price or prices or ratio or ratios or the rate or rates at which such exchange may be
made, with such adjustments, if any, as shall be stated and expressed or provided for in such
resolution or resolutions; and
(ix) such other special rights and protective provisions with respect to any class or series
as may to the board of directors of the Corporation seem advisable.
(c) The shares of each class or series of the Preferred Stock may vary from the shares of any
other class or series thereof in any or all of the foregoing respects. The board of directors of
the Corporation may increase the number of shares of the Preferred Stock designated for any
existing class or series by a resolution adding to such class or series authorized and
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unissued shares of the Preferred Stock not designated for any other class or series. The
board of directors of the Corporation may decrease the number of shares of the Preferred Stock
designated for any existing class or series by a resolution subtracting from such class or series
authorized and unissued shares of the Preferred Stock designated for such existing class or series,
and the shares so subtracted shall become authorized, unissued, and undesignated shares of the
Preferred Stock.
2. Provisions Relating to the Common Stock.
(a) Each share of Common Stock of the Corporation shall have identical rights and privileges
in every respect. The Common Stock shall be subject to the express terms of the Preferred Stock
and any series thereof. Except as may otherwise be provided in this Certificate of Incorporation,
in a Preferred Stock Designation or by applicable law, the holders of shares of Common Stock shall
be entitled to one vote for each such share upon all questions presented to the stockholders, the
holders of shares of Common Stock shall have the exclusive right to vote for the election of
directors and for all other purposes, and the holders of Preferred Stock shall not be entitled to
vote at or receive notice of any meeting of stockholders.
(b) Notwithstanding the foregoing, except as otherwise required by law, holders of Common
Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation
(including any certificate of designations relating to any 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 with the holders of one or more other
such series, to vote thereon pursuant to this Certificate of Incorporation (including any
certificate of designations relating to any series of Preferred Stock) or pursuant to the General
Corporation Law of the State of Delaware.
(c) Subject to the prior rights and preferences, if any, applicable to shares of the Preferred
Stock or any series thereof, the holders of shares of the Common Stock shall be entitled to receive
such dividends (payable in cash, stock or otherwise) as may be declared thereon by the board of
directors at any time and from time to time out of any funds of the Corporation legally available
therefor.
(d) In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, after distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of the Preferred Stock or any class or series thereof, the holders of shares
of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation
available for distribution to its stockholders, ratably in proportion to the number of shares of
the Common Stock held by them. A liquidation, dissolution or winding-up of the Corporation, as
such terms are used in this Paragraph (d), shall not be deemed to be occasioned by or to include
any consolidation or merger of the Corporation with or into any other corporation or corporations
or other entity or a sale, lease, exchange or conveyance of all or a part of the assets of the
Corporation.
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3. General.
(a) Subject to the foregoing provisions of this Certificate of Incorporation and any
then-existing Preferred Stock Designation, the Corporation may issue shares of its Preferred Stock
and Common Stock from time to time for such consideration (not less than the par value thereof) as
may be fixed by the board of directors of the Corporation, which is expressly authorized to fix the
same in its absolute and uncontrolled discretion subject to the foregoing conditions. Shares so
issued for which the consideration shall have been paid or delivered to the Corporation shall be
deemed fully paid stock and shall not be liable to any further call or assessment thereon, and the
holders of such shares shall not be liable for any further payments in respect of such shares.
(b) The Corporation shall have authority to create and issue rights and options entitling
their holders to purchase shares of the Corporations capital stock of any class or series or other
securities of the Corporation, and such rights and options shall be evidenced by instrument(s)
approved by the board of directors of the Corporation. The board of directors of the Corporation
shall be empowered to set the exercise price, duration, times for exercise, and other terms of such
options or rights; provided, however, that the consideration to be received for any shares of
capital stock subject thereto shall not be less than the par value thereof.
(c) The Corporation shall be entitled to treat the person in whose name any share of its stock
is registered as the owner thereof for all purposes and shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the part of any other person, whether or
not the Corporation shall have notice thereof, except as expressly provided by applicable law.
FIFTH:
(a) Prior to the 2010 annual meeting of stockholders of the Corporation, all of the directors
shall be elected annually at the annual meeting of stockholders.
(b) Commencing with the 2010 annual meeting of stockholders of the Corporation, the directors,
other than those who may be elected by the holders of any series of Preferred Stock specified in
the related Preferred Stock Designation, shall be divided, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as is reasonably possible,
with the term of office of the first class to expire at the 2011 annual meeting of stockholders,
the term of office of the second class to expire at the 2012 annual meeting of stockholders and the
term of office of the third class to expire at the 2013 annual meeting of stockholders, with each
director to hold office until his or her successor shall have been duly elected and qualified. At
each annual meeting of stockholders, commencing with the 2011 annual meeting, (i) directors elected
to succeed those directors whose terms then expire shall be elected for a term of office to expire
at the third succeeding annual meeting of stockholders after their election, with each director to
hold office until his or her successor shall have been duly elected and qualified, and (ii) if
authorized by a resolution of the Board of Directors, directors may be elected to fill any vacancy
on the Board of Directors, regardless of how such vacancy shall have been created.
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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 of the Corporation. Unless and except to the extent that the bylaws
of the Corporation so provide, the election of directors need not be by written ballot.
SIXTH: Special meetings of stockholders of the Corporation may be called only by the Chairman
of the Board, the Chief Executive Officer or the Board of Directors pursuant to a resolutions
adopted by a majority of the total number of directors which the Corporation would have if there
were no vacancies; provided, however, that prior to the Trigger Date, special meetings of the
stockholders of the Corporation may also be called by the holders of a majority of the outstanding
shares of the Corporation entitled to vote. The person or persons authorized to call special
meetings of the Board of Directors may fix the place and time of the meetings.
SEVENTH: In furtherance of, and not in limitation of, the powers conferred by the laws of the
State of Delaware, the Board of Directors of the Corporation is expressly authorized to adopt,
amend or repeal the bylaws of the Corporation by a majority vote of the total number of directors
which the Corporation would have if there were no vacancies, subject to the power of the
stockholders of the Corporation to alter or repeal any bylaw whether adopted by them or otherwise;
provided, however, that, the provisions of this Seventh Article notwithstanding, bylaws shall not
be adopted, altered, amended or repealed by the stockholders of the Corporation except by the vote
of holders of not less than (i) a majority in voting power of the then-outstanding shares of stock
entitled to vote generally in the election of directors (considered for this purpose as one class)
at any time prior to the Trigger Date or
(ii) 66⅔% in voting power of the then-outstanding shares
of stock entitled to vote generally in the election of directors (considered for this purpose as
one class) at any time on or after the Trigger Date.
EIGHTH: 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, of the Corporation, as the case may be, and also on the Corporation.
NINTH: No director of the Corporation shall be liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any
breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
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violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit. In addition to the
circumstances in which a director of the Corporation is not personally liable as set forth in the
preceding sentence, a director of the Corporation shall not be liable to the fullest extent
permitted by any amendment to the Delaware General Corporation Law hereafter enacted that further
limits the liability of a director.
The Corporation shall indemnify each director or officer to the fullest extent permitted by
Delaware law.
Any amendment, repeal or modification of this Ninth Article shall be prospective only and
shall not affect any limitation on liability of a director for acts or omissions occurring prior to
the date of such amendment, repeal or modification.
TENTH: To the fullest extent permitted by applicable law, the Corporation, on behalf of
itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its
subsidiaries in, or in being offered an opportunity to participate in, business opportunities that
are from time to time presented to EnCap Investments, L.P. or any private fund that it manages or
advises (the Sponsor) or any of its officers, directors, agents, shareholders, members,
partners, affiliates and subsidiaries (other than the Corporation and its subsidiaries) (each, a
Specified Party) or are business opportunities in which a Specified Party participates or
desires to participate, even if the opportunity is one that the Corporation or its subsidiaries
might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the
opportunity to do so and each such Specified Party shall have no duty to communicate or offer such
business opportunity to the Corporation and, to the fullest extent permitted by applicable law,
shall not be liable to the Corporation or any of its subsidiaries or any stockholder for breach of
any fiduciary or other duty, as a director or officer or controlling stockholder or otherwise, by
reason of the fact that such Specified Party pursues or acquires such business opportunity, directs
such business opportunity to another person or fails to present such business opportunity, or
information regarding such business opportunity, to the Corporation or its subsidiaries.
Notwithstanding the foregoing, a Specified Party who is a director or officer of the Corporation
and who is offered a business opportunity in his or her capacity as a director or officer of the
Corporation (a Directed Opportunity) shall be obligated to communicate such Directed
Opportunity to the Corporation, provided, however, that all of the protections of this Tenth
Article shall otherwise apply to the Specified Parties with respect to such Directed Opportunity,
including, without limitation, the ability of the Specified Parties to pursue or acquire such
Directed Opportunity or to direct such Directed Opportunity to another person.
Neither the amendment nor repeal of this Tenth Article, nor the adoption of any provision of
this Certificate of Incorporation or the bylaws of the Corporation, nor, to the fullest extent
permitted by Delaware Law, any modification of law, shall adversely affect any right or protection
of any person granted pursuant hereto existing at, or arising out of or related to any event, act
or omission that occurred prior to, the time of such amendment, repeal, adoption or modification
(regardless of when any proceeding (or part thereof) relating to such event, act or omission arises
or is first threatened, commenced or completed).
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If any provision or provisions of this Tenth Article shall be held to be invalid, illegal or
unenforceable as applied to any circumstance for any reason whatsoever: (a) the validity, legality
and enforceability of such provisions in any other circumstance and of the remaining provisions of
this Tenth Article (including, without limitation, each portion of any paragraph of this Tenth
Article containing any such provision held to be invalid, illegal or unenforceable that is not
itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and (b) to the fullest extent possible, the provisions of this Tenth Article (including,
without limitation, each such portion of any paragraph of this Tenth Article containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the
Corporation to protect its directors, officers, employees and agents from personal liability in
respect of their good faith service to or for the benefit of the Corporation to the fullest extent
permitted by law.
This Tenth Article shall not limit any protections or defenses available to, or
indemnification rights of, any director or officer of the Corporation under this Certificate of
Incorporation or applicable law. Any person or entity purchasing or otherwise acquiring any
interest in any securities of the Corporation shall be deemed to have notice of and to have
consented to the provisions of this Tenth Article.
ELEVENTH: Prior to the first date on which Oasis Holdings LLC and its Affiliates (as such
term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934) no longer own
more than 50% of the outstanding shares of Common Stock of the Corporation (the Trigger
Date), any action required or permitted to be taken by the stockholders of the Corporation may
be taken without a meeting if a consent in writing, setting forth the action so taken, is 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. On and after the Trigger Date, subject to the rights of holders of
any series of Preferred Stock with respect to such series of Preferred Stock, any action required
or permitted to be taken by the stockholders of the Corporation must be taken at a duly held annual
or special meeting of stockholders and may not be taken by any consent in writing of such
stockholders.
TWELFTH: The Corporation shall have the right, subject to any express provisions or
restrictions contained in this Certificate of Incorporation or bylaws of the Corporation, from time
to time, to amend this Certificate of Incorporation or any provision hereof 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 this Certificate of Incorporation or any amendment hereof are
subject to such right of the Corporation.
THIRTEENTH: Notwithstanding any other provision of this Certificate of Incorporation or the
bylaws of the Corporation (and in addition to any other vote that may be required by law, this
Certificate of Incorporation or the bylaws), from and after the Trigger Date, the affirmative vote
of the holders of at least
66⅔% in voting power of the outstanding shares of stock of the
Corporation entitled to vote generally in the election of directors (considered for this purpose as
one class) shall be required to amend, alter or repeal any provision of this Certificate of
Incorporation.
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IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of
Incorporation as of this day of
, 2010.
OASIS PETROLEUM INC. |
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