SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
MARINER ENERGY, INC.
The original Certificate of Incorporation was filed with the Secretary of
State of the State of Delaware on August 3, 1983 under the name Trafalgar House
Oil and Gas Inc. A Certificate of Amendment was filed on June 2, 1989 changing
the name from Trafalgar House Oil and Gas Inc. to Hardy Oil & Gas USA Inc. A
Restated Certificate of Incorporation changing the name of the corporation from
Hardy Oil & Gas USA Inc. to Mariner Energy, Inc. was filed on June 12, 1996.
ARTICLE ONE: Name. The name of the corporation is Mariner Energy, Inc. (the
ARTICLE TWO: Address. The address of the Corporation's registered office in
the State of Delaware is The Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle, Delaware 19801. The name of the
Corporation's registered agent at such address is The Corporation Trust Company.
ARTICLE THREE: Purpose. The purpose of the Corporation shall be to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware ("DGCL").
ARTICLE FOUR: Stock. The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is 90 million shares,
of which 70 million shares shall be shares of Common Stock, par value $.0001
per share ("Common Stock"), and 20 million shares shall be shares of Preferred
Stock, par value $.0001 per share ("Preferred Stock"). Upon the effectiveness of
this Second Amended and Restated Certificate of Incorporation, the 1,380 shares
of Common Stock, par value $1.00 per share, of the Corporation that are
currently issued and outstanding, shall automatically be reclassified, changed
and converted into 29,748,130 shares of Common Stock, par value $.0001 per
share. The powers, designations, preferences and relative, participating,
optional or other special rights, if any, and the qualifications, limitations or
restrictions of each class of capital stock shall be governed by the following
Section 1. Preferred Stock. The Preferred Stock may be issued from
time to time in one or more series. The Board of Directors is hereby
authorized (i) to provide by resolution or resolutions from time to time
for the issuance of shares of Preferred Stock in one or more series, (ii)
to establish from time to time the number of shares to be included in each
such series, (iii) (to the extent not expressly provided for herein) to fix
the designations, powers, preferences and relative, participating, optional
or other special rights of the shares of each such series and the
qualifications, limitations or restrictions, if any, thereof, by filing one
or more certificates pursuant to the DGCL (hereinafter, referred to as a
"Preferred Stock Designation"), and (iv) to increase or decrease the number
of shares of any such
series to the extent permitted by the DGCL and the Preferred Stock
Designation (but not below the number of shares thereof then outstanding).
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(a) The designation of the series, which may be by distinguishing
the number, letter or title of such series.
(b) The number of shares of the series.
(c) Whether dividends, if any, shall be paid in cash or in
capital stock or other securities, whether such dividends shall be
cumulative (and, if so, from which date or dates for each such series)
or noncumulative, the preference or relation which such dividends, if
any, shall bear to the dividends payable on any other class or classes
or any other series of capital stock, and the dividend rate, if any,
of the series.
(d) Conditions and dates upon which dividends, if any, shall be
(e) The redemption rights and redemption price or prices, if any,
for shares of the series.
(f) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(g) The amounts payable on and the preferences, if any, of shares
of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
(h) Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or series of capital stock,
or any other security, of the Corporation or any other corporation
and, if so, the specification of such other class or series or such
other security, the conversion or exchange price or prices or rate or
rates, any adjustments thereof, the date or dates at which such shares
shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made.
(i) Restrictions on the issuance of shares of the same series or
of any other class or series.
(j) The voting rights, if any, of the holders of shares of the
series, whether as a class or otherwise, with respect to the election
of directors or otherwise.
(k) The price or other consideration for which shares of the
series shall be issued and, if deemed desirable, the stated value or
other valuation of the shares constituting such series.
(l) Any other relative rights, preferences and limitations of
Section 2. Common Stock.
(a) General. All shares of Common Stock shall be identical and
will entitle holders thereof to the same rights and privileges, except
as otherwise provided herein. 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 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
(b) Voting Rights.
(i) Each registered holder of Common Stock shall be entitled
to one vote for each share of Common Stock held by such holder.
(ii) Except as otherwise provided by law, each registered
holder of Common Stock shall be entitled to vote for the election
of directors of the Corporation as provided for in Section 2 of
Article Five of this Second Amended and Restated Certificate of
Incorporation and shall be entitled to vote on all other matters
submitted to a vote of stockholders of the Corporation.
(c) Dividends. Any dividend or distribution on Common Stock shall
be payable on shares of Common Stock ratably.
(d) Liquidation. 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 Preferred Stock or any series
thereof, the holders of shares of 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 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
ARTICLE FIVE: Directors. The Board of Directors of the Corporation shall
consist of such number of directors as may be determined from time to time by
the Board of Directors in its sole discretion in accordance with Article III of
the Bylaws of the Corporation; subject, however, to the rights of the holders of
any series of Preferred Stock of the Corporation, as set forth in a Preferred
Stock Designation, to elect additional Directors under specified circumstances,
and shall be subject to the following provisions:
Section 1. Classification. The directors shall be divided into three
classes as nearly equal in size as is practicable, hereby designated Class
I, Class II and Class
III. The term of office of the initial Class I directors shall expire on
the date of the first annual meeting of stockholders following adoption of
this Second Amended and Restated Certificate of Incorporation by the
affirmative vote of the stockholders (the "Effective Time"), the term of
office of the initial Class II directors shall expire at the second annual
meeting of the stockholders after the Effective Time and the term of office
of the initial Class III directors shall expire at the third annual meeting
of the stockholders after the Effective Time. At each annual stockholders'
meeting after the Effective Time, directors to replace those of a class
whose terms expire at such annual meeting shall be elected to hold office
until the third succeeding annual meeting of stockholders and until their
respective successors shall have been duly elected and qualified. 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.
Section 2. Election. Holders of Common Stock shall elect all directors
of the Corporation (other than directors, if any, which holders of any
series of Preferred Stock are entitled to elect pursuant to the provisions
of the Preferred Stock Designation establishing such series).
Section 3. Written Ballot. The election of directors need not be by
written ballot except as may otherwise be provided in the Bylaws.
Section 4. Cumulative Voting: Cumulative voting for the election of
directors is not allowed.
Section 5. Removal. Subject to the rights of the holders of any series
of Preferred Stock to remove directors under specified circumstances, (i)
no director may be removed without cause and (ii) the affirmative vote of
the holders of at least eighty percent (80%) of the voting power of all of
the then-outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as
a single class, shall be required to remove any director or the entire
Board of Directors for cause.
ARTICLE SIX: 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 total number of authorized directors regardless of
whether there exist any vacancies in such authorized directorships. The
stockholders shall also have the power to adopt, amend or repeal the Bylaws of
the Corporation; 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 Second Amended and Restated Certificate of Incorporation, the affirmative
vote of the holders of at least eighty percent (80%) of the voting power of all
of the then-outstanding shares of the capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, shall be required to adopt, amend or repeal any provision of the Bylaws
of the Corporation.
ARTICLE SEVEN: Action Without a Meeting. Any action required or permitted
to be taken by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of stockholders of the Corporation and may not
be effected by any consent in writing by such stockholders.
ARTICLE EIGHT: Vacancies. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall, unless
otherwise required by law or by resolution of the Board of Directors, be filled
by the affirmative vote of a majority of the directors then in office, though
less than a quorum (and not by stockholders), and directors so chosen shall hold
office for a term expiring at the next annual meeting of stockholders and until
such director's successor shall have been duly elected and qualified. No
decrease in the authorized number of directors shall shorten the term of any
ARTICLE NINE: Arrangements with Creditors. 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 the DGCL 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 the DGCL, 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
ARTICLE TEN: Section 203. The Corporation elects not to be governed by
Section 203 of the DGCL until the first date on which MEI Acquisitions Holdings,
LLC and its current (as of the Effective Time) and future Affiliates (as defined
in Article Thirteen of this Second Amended and Restated Certificate of
Incorporation) cease to beneficially own fifteen percent (15%) or more of the
voting power of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, at which
time Section 203 of the DGCL shall apply to the Corporation.
ARTICLE ELEVEN: Liability of Directors. 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 director's 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 violation of law, (iii) under Section 174
of the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. If the DGCL hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended DGCL. Any repeal or modification of this Article Eleven
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.
ARTICLE TWELVE: Indemnification. The Corporation shall indemnify, to the
full extent permitted by the laws of the State of Delaware as from time to time
in effect, each director and officer of the Corporation, and may indemnify each
employee and agent of the Corporation, and all other persons whom the
Corporation is authorized to indemnify under the provisions of the DGCL.
ARTICLE THIRTEEN: Corporate Opportunities. If MEI Acquisitions Holdings,
LLC or any of its current (as of the Effective Time) or future Affiliates
(except the Corporation) (collectively, the "Group") or any director of the
Corporation who is a director, officer or employee of the Group acquires
knowledge of a potential transaction or matter that may be a Corporate
Opportunity or otherwise is then exploiting any Corporate Opportunity, the
Corporation shall have no interest in, and no expectation that, such Corporate
Opportunity be offered to it, any such interest or expectation being hereby
renounced so that the Group and such individuals (1) shall (i) have no duty to
communicate or present such Corporate Opportunity to the Corporation and (ii)
have the right to hold any such Corporate Opportunity for the Group's (and its
officers', directors', agents', stockholders', members', partners', Affiliates'
or Subsidiaries') own account and benefit; or to recommend, assign, or otherwise
transfer or deal in such Corporate Opportunity to Persons other than the
Corporation or any Affiliate of the Corporation and (2) cannot be, and shall not
be, liable to the Corporation or its stockholders for breach of any fiduciary
duty as a stockholder or director of the Corporation by reason of the fact that
the Group or any such individual pursues or acquires such Corporate Opportunity
for the Group, directs, sells, assigns or otherwise transfers or deals in such
Corporate Opportunity to another Person, or does not communicate information
regarding such Corporate Opportunity to the Corporation; provided, however, that
nothing in this Article Thirteen shall change a director's duties or obligations
with respect to proprietary or confidential information of the Corporation or
prohibit the Corporation from pursuing any Corporate Opportunity.
(i) Affiliate means, as applied to a Person, any other Person
directly or indirectly controlling, controlled by, or under common
control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities, by
contract or otherwise.
(ii) Capital Stock of any Person means any and all shares,
interests, rights to purchase, options, warrants, participation or
other equivalents of or interest in (however designated) the equity of
such Person, including any preferred stock.
(iii) Corporate Opportunity means an investment or business
opportunity or prospective economic or competitive advantage in which
the Corporation could have an interest or expectancy.
(iv) Person means any individual, firm, corporation, partnership,
limited partnership, limited liability partnership, business trust,
limited liability company, unincorporated association, or joint
venture or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(v) Subsidiary of any Person means any other Person of which more
than fifty percent (50%) of the total Voting Power thereof of the
Capital Stock thereof is at the time owned or controlled, directly or
indirectly, by the first Person and/or one or more of its
(vi) Voting Power means, as of the date of determination, the
voting power in the general election of directors, managers or
trustees, as applicable.
ARTICLE FOURTEEN: Issuance of Rights. The Board of Directors is expressly
authorized to cause the Corporation to issue rights pursuant to Section 157 of
the DGCL and, in that connection, to enter into any agreements necessary or
convenient for such issuance, and to enter into other agreements necessary and
convenient to the conduct of the business of the Corporation. Any such agreement
may include provisions limiting, in certain circumstances, the ability of the
Board of Directors to redeem the securities issued pursuant thereto or to take
other action thereunder or in connection therewith unless there is a specified
number or percentage of Continuing Directors then in office. Pursuant to Section
141(a) of the DGCL, Continuing Directors shall have the power and authority to
make all decisions and determinations, and exercise or perform such other acts,
that any such agreement provides that such Continuing Directors shall make,
exercise or perform. For purposes of this Article Fourteen and any such
agreement, the term, "Continuing Directors," shall mean (1) those directors who
were members of the Board of Directors at the time the Corporation entered into
such agreement and any director who subsequently becomes a member of the Board
of Directors, if such director's nomination for election or appointment to the
Board of Directors is recommended or approved by the majority vote of the
Continuing Directors then in office and (2) such other members of the Board of
Directors, if any, designated in, or in the manner provided in, such agreement
as Continuing Directors.
ARTICLE FIFTEEN: Amendment. The Corporation shall have the right, subject
to any express provisions or restrictions contained in this Second Amended and
Restated Certificate of Incorporation or the Bylaws of the Corporation, from
time to time, to amend this Second Amended and Restated 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 Second Amended and Restated Certificate
of Incorporation or any amendment hereof are subject to such right of
the Corporation; provided however, that the affirmative vote of the holders of
at least eighty percent (80%) of the voting power of all of the then-outstanding
shares of the 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 or repeal Article Five, Six, Seven, Eight, Ten, Eleven, Twelve, Thirteen,
Fourteen or Fifteen of this Second Amended and Restated Certificate of
IN WITNESS WHEREOF, this Second Amended and Restated Certificate of
Incorporation, which restates and integrates and further amends the provisions
of the Amended and Restated Certificate of Incorporation of the Corporation, and
which has been duly adopted in accordance with Section 242 and 245 of the DGCL,
has been executed by its duly authorized officer this 3rd day of March, 2005.
MARINER ENERGY, INC.
By: /s/ Jesus G. Melendrez
Name: Jesus G. Melendrez
Title: Vice President-Corporate