AMENDED AND RESTATED
Pursuant to Section 245 of the General Corporation Law of the State of Delaware
CERTIFICATE OF INCORPORATION
PETROTECHNICAL OPEN SOFTWARE CORPORATION
PETROTECHNICAL OPEN SOFTWARE CORPORATION (hereinafter referred to as the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
- The Corporation duly filed its original Certificate of Incorporation with the Secretary of State of Delaware on October 15, 1990.
- Pursuant to a Written Action of Sponsor Directors in Lieu of a Meeting taken by the Sponsor Directors of the Corporation on June 15, 1998 (which Sponsor Directors constitute the "governing body" of such corporation as referred to in Section 242(b)(3) of the Delaware General Corporation Law), resolutions were duly adopted, pursuant to Sections 141, 242(b)(3) and 245 of the General Corporation Law of the State of Delaware, proposing and declaring advisable the amendment and restatement of the Certificate of Incorporation of the Corporation, as provided in Exhibit A hereto. Such resolutions are as follows:
RESOLVED:||That it is hereby deemed advisable and in the best interests of the Corporation to effect an amendment to the Certificate of Incorporation of the Corporation, as amended to date, pursuant to which the provisions of the Certificate of Incorporation concerning the rights of members of the Corporation to vote on certain matters, classification of the Board of Directors and certain other matters would be added, and certain provisions creating and relating to "sponsor" members be eliminated, and that the Certificate of Incorporation be amended and restated in its entirety so that the same shall read as set forth in Exhibit A hereto.|
- The Sponsor Directors of the Corporation, pursuant to a Written Action of Directors in Lieu of a Meeting taken by the Directors of the Corporation on July 1, 1998, adopted the same resolution in favor of such amendment and restatement of the Certificate of Incorporation of the Corporation, as required by Section 242(b)(3) of the Delaware General Corporation Law.
- Said amendment and restatement was duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law.
I, THE UNDERSIGNED, being the President and Chief Executive Officer of the Corporation, do make, file and record this Amended and Restated Certificate of Incorporation, do certify that the facts herein stated are true and, accordingly, have hereto set my hand this 2nd day of July, 1998
David Archer, President and Chief Executive Officer
of the Amended And Restated Certificate Of Incorporation Of
Petrotechnical Open Software Corporation
- The name of the corporation is Petrotechnical Open Software Corporation (the "Corporation").
- The registered office of the Corporation in the State of Delaware is Corporation Trust Center, 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.
- Subject to the limitations set forth below, the Corporation will have the full power and authority to engage in any lawful act or activity for which a corporation may be organized under the laws of the State of Delaware. The specific purpose of this Corporation is to make available to the exploration and production segments of the petroleum industry an open, integrated software platform, including developing specifications for an integrated data model; developing a set of test suites to permit vendors to evaluate their offerings against those specifications; certifying industry offerings to be in compliance with specifications; delivering software offerings consistent with specifications to the extent required to supplement available industry offerings; and offering complementary consulting and technical services.
- In furtherance of the general powers conferred by the laws of the State of Delaware and the purposes herein set forth, the Corporation will have the power, acting through its Board of Directors, its president and other officers, subject to the restrictions set forth in this Certificate of Incorporation, to do and perform all such acts and things as are necessary and convenient to the purposes herein set forth.
- No part of the net earnings or assets of the Corporation shall inure to the benefit of, or be distributable to, its members (subject to the provisions of Article 6 below), directors, officers or other private persons, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes hereinabove set forth.
- In addition to the vote of members required by law, a vote of three-fourths of the Directors of the Corporation shall be required to liquidate, dissolve or wind up the affairs of the Corporation. In the event of the liquidation, dissolution or winding up of the affairs of the Corporation (whether voluntary, involuntary or by operation of law), the Board of Directors shall, after paying or making provision for the payment of all liabilities of the Corporation, distribute all of the assets of the Corporation, including any income or other property which shall not theretofore have been distributed in furtherance of the Corporation's purposes, in such manner as the Board of Directors may determine to be best suited to the accomplishment of the purposes of the Corporation, as set forth in Article 3 hereof, but in no event to any private for-profit firm or corporation.
- The Corporation shall be a membership corporation, is not organized for profit, and shall not have the authority to issue stock. The qualifications, conditions and rights of membership of the Corporation, and the limitations and restrictions thereof, will be specified in the Corporation's By-laws; provided; however, membership in the Corporation shall be nontransferable.
- The business and affairs of the Corporation will be managed by or under the direction of the Board of Directors. The directors need not be elected by written ballot unless required under the By-laws of the Corporation. The terms of office, qualifications and manner of election of the directors shall be such as are specified by the By-laws. Any director may be removed as provided in the By-laws. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to make, amend and repeal the By-laws. The By-laws may be altered, amended or repealed or new by-laws may be adopted by the affirmative vote of three-fourths of (a) the Directors at any regular or special meeting of the Board of Directors at which a quorum is present or (b) the Members at any regular or special meeting of Members. The Board of Directors shall be divided into three classes: Class I, Class II and Class III. Each director shall serve for a term ending on the date of the third annual meeting of Members following the annual meeting at which such director was elected, provided that each initial director in Class I shall serve for a term ending on the date of the annual meeting of Members in 1998, each initial director in Class II shall serve for a term ending on the date of the annual meeting of Members in 1999, and each initial director in Class III shall serve for a term ending on the date of the annual meeting of Members in 2000.
- Except to the extent that Section 102(b)(7) of the General Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its members for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
- The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware, as amended from time to time, indemnify each person 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, by reason of the fact that he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys= fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom.
Indemnification may include payment by the Corporation of expenses in defending an action or proceeding in advance of the final disposition of such action or proceeding upon receipt of an undertaking by the person indemnified to repay such payment if it is ultimately determined that such person is not entitled to indemnification under this Article.
The Corporation shall not indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless the initiation thereof was approved by the Board of Directors of the Corporation.
The indemnification rights provided in this Article (i) shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any law, agreement or vote of members or disinterested directors or otherwise, and (ii) shall inure to the benefit of the heirs, executors and administrators of such persons. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article.
- The Corporation reserves the right to amend, alter or repeal any provision contained in this Certificate of Incorporation in the manner from time to time prescribed by the laws of the State of Delaware and all rights herein conferred are granted subject to this reservation; provided, however, that any amendment, alteration or repeal of any provision of this Certificate of Incorporation must be approved by three-fourths of (a) the Directors at any regular or special meeting of the Board of Directors at which a quorum is present or (b)the members at any regular or special meeting of members.
- In no event shall any member of the Corporation be required to utilize, to any extent, the specifications, test suites or software offerings developed by the Corporation or to conform its products to any specifications or test suites developed or adopted by the Corporation. The members of the Corporation may, in all instances, undertake any research and development that they deem appropriate and may utilize any data model, software and applications they choose. In no event shall any member of the Corporation be restricted from independently developing, producing or marketing any product based on software developed by the Corporation or from purchasing any product from any other company or person.
- In no event shall any member of the Corporation be required to exchange proprietary information with any other member beyond that required to fulfill the purposes of the Corporation set forth herein.
HTML Version: 8/20/1998