<DOCUMENT>

<TYPE>EX-4.1

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<FILENAME>d87853a2ex4-1.txt

<DESCRIPTION>FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORP

<TEXT>

 

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                                                                     Exhibit 4.1

 

 

                              AMENDED AND RESTATED

 

                          CERTIFICATE OF INCORPORATION

 

                                       OF

 

                             KERR-MCGEE CORPORATION

 

 

 

         FIRST:    The name of the corporation is:

 

                             KERR-MCGEE CORPORATION

 

         SECOND: The registered office of the corporation in the State of

Delaware is located at No. 1209 Orange Street, in the City of Wilmington, County

of New Castle. The name and address of its resident agent is The Corporation

Trust Company, No. 1209 Orange Street, Wilmington, Delaware 19801.

 

         THIRD: The purpose of the corporation 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.

 

         FOURTH: (1) The total number of shares of all classes of stock which

the corporation shall have the authority to issue is 340,000,000, of which

40,000,000 shares shall be preferred stock, without par value, and 300,000,000

shall be common stock of the par value of $1.00 per share.

 

         Each holder of common stock, as such, shall be entitled to one vote for

each share of common stock held of record by such holder on all matters on which

stockholders generally are entitled to vote; provided, however, that, 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.

 

              (2) The preferred stock may be issued from time to time in one or

more series. The resolution or resolutions of the Board of Directors providing

for the issue of shares of a particular series shall fix, subject to applicable

laws and provisions of this certificate of incorporation, the voting power,

designation, preferences and relative, participating, optional or other special

rights, and qualifications, limitations or restrictions of the shares of such

series. The authority of the Board of Directors with respect to each series

shall include, but not be limited to, determination of the following:

 

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                  i)       the number of shares constituting such series,

                           including the authority to increase or decrease such

                           number, and the distinctive designation of such

                           series;

 

                  ii)      the rate of dividends payable on shares of such

                           series, the dates on which such dividends shall be

                           paid, and whether such dividends shall be cumulative

                           or noncumulative;

 

                  iii)     the full or limited voting power, if any, for such

                           series and the terms and conditions under which such

                           voting power may be exercised;

 

                  iv)      the right, if any, of the corporation to redeem

                           shares of such series and the terms and conditions of

                           such redemption;

 

                  v)       the obligations, if any, of the corporation to retire

                           shares of such series pursuant to a retirement or

                           sinking fund of a similar nature or otherwise and the

                           terms and conditions of such obligation;

 

                  vi)      the terms and conditions, if any, upon which the

                           shares of such series shall be convertible into

                           shares of stock of any other class or series

                           including the conversion rate and the term of

                           adjustment thereof, if any;

 

                  vii)     the amount which the holders of the shares of such

                           series shall be entitled to receive in case of a

                           liquidation, dissolution or winding up of the

                           corporation;

 

                  viii)    the relative priority of the shares of such series to

                           shares of other classes or series with respect to

                           dividends or upon the dissolution of or the

                           distribution of assets of the corporation; and

 

                  ix)      and other rights and qualifications, preferences and

                           limitations or restrictions of the shares of such

                           series;

 

                           so far as not inconsistent with the provisions of

                           this certificate of incorporation and to the full

                           extent now or hereafter permitted by the laws of the

                           State of Delaware.

 

         (3) Except as otherwise provided in this paragraph (3), no direct or

indirect purchase by the corporation from any Interested Stockholder (as

hereinafter defined) of shares of common stock of the corporation beneficially

owned by such Interested Stockholder for less than two years prior to the date

of such purchase shall be made at a per share price in excess of Fair Market

Value (as hereinafter defined) at the time of such purchase unless such purchase

is approved by the affirmative vote of not less than a majority of the Voting

Stock (as defined in Article THIRTEENTH) held by Disinterested Stockholders (as

hereinafter defined).

 

         The provisions of this paragraph (3) shall not apply to (i) any offer

to purchase made by the corporation which is made on the same terms and

conditions of the holders of all shares of

 

 

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common stock of the corporation, or (ii) any open market purchases by the

corporation of shares of its common stock at prevailing market prices.

 

         The provisions of this paragraph (3) shall not be amended without the

affirmative vote of (a) not less than a majority of the Voting Stock entitled to

vote thereon and (b) not less than a majority of the Voting Stock entitled to

vote thereon held by Disinterested Stockholders.

 

         For purposes of this paragraph (3); i) the terms "INTERESTED

STOCKHOLDER" shall have the meaning of "Related Person" set forth in paragraph

(B)(3) of Article THIRTEENTH except that the percent of Voting Stock referred to

in clauses (a) and (b) of such definition shall be five percent (5%) rather than

ten percent (10%); (ii) the term "FAIR MARKET VALUE" shall have the meaning set

forth in paragraph (B)(9) of Article THIRTEENTH except that "Fair Market Value"

shall mean the highest sale price or bid quotation during the five-trading day

period preceding the date of the purchase of the stock; and (iii) the terms

"DISINTERESTED STOCKHOLDERS" means those holders of the Voting Stock, none of

which is an Interested Stockholder.

 

         (4) SERIES B PREFERRED STOCK

 

              SECTION 1. DESIGNATION AND AMOUNT. There shall be designated a

series of preferred stock as "Series B Junior Participating Preferred Stock"

(the "Series B Preferred Stock") and the number of shares constituting the

Series B Preferred Stock shall be 1,000,000. Such number of shares may be

increased or decreased by resolution of the Board of Directors; provided, that

no decrease shall reduce the number of shares of Series B Preferred Stock to a

number less than the number of shares then outstanding plus the number of shares

reserved for issuance upon the exercise of outstanding options, rights or

warrants or upon the conversion of any outstanding securities issued by the

corporation convertible into Series B Preferred Stock.

 

              SECTION 2. DIVIDENDS AND DISTRIBUTIONS.

 

              (A) Subject to the rights of the holders of any shares of any

series of preferred stock of the corporation (the "Preferred Stock") (or any

similar stock) ranking prior and superior to the Series B Preferred Stock with

respect to dividends, the holders of shares of Series B Preferred Stock, in

preference to the holders of common stock of the corporation (the "Common

Stock") and of any other stock of the corporation ranking junior to the Series B

Preferred Stock, shall be entitled to receive, when, as and if declared by the

Board of Directors out of funds legally available for the purpose, quarterly

dividends payable in cash on the last day of January, April, July, and October

in each year (each such date being referred to herein as a "Dividend Payment

Date"), commencing on the first Dividend Payment Date after the first issuance

of a share or fraction of a share of Series B Preferred Stock, in an amount per

share (rounded to the nearest cent) equal to the greater of (a) $1 or (b)

subject to the provision for adjustment hereinafter set forth, 100 times the

aggregate per share amount of all cash dividends, and 100 times the aggregate

per share amount (payable in kind) of all non-cash dividends or other

distributions other than a dividend payable in shares of Common Stock, declared

on the Common Stock since the immediately preceding Dividend Payment Date or,

with respect to the first Dividend Payment Date, since the first issuance of any

share or fraction of a share of Series B Preferred Stock. In the event the

corporation shall at any time

 

 

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after July 9, 1996 declare or pay any dividend on the Common Stock payable in

shares of Common Stock, or effect a subdivision or combination or consolidation

of the outstanding shares of Common Stock (by reclassification or otherwise than

by payment of a dividend in shares of Common Stock) into a greater or lesser

number of shares of Common Stock, then in each such case the amount to which

holders of shares of Series B Preferred Stock were entitled immediately prior to

such event under clause (b) of the preceding sentence shall be adjusted by

multiplying such amount by a fraction, the numerator of which is the number of

shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

              (B) The corporation shall declare a dividend or distribution on

the Series B Preferred Stock as provided in paragraph (A) of this Section

immediately after it declares a dividend or distribution on the Common Stock

(other than a dividend payable in shares of Common Stock); provided that, in the

event no dividend or distribution shall have been declared on the Common Stock

during the period between any Dividend Payment Date and the next subsequent

Dividend Payment Date, a dividend of $1 per share on the Series B Preferred

Stock shall nevertheless be payable, when, as and if declared, on such

subsequent Dividend Payment Date.

 

              (C) Dividends shall begin to accrue and be cumulative, whether or

not earned or declared, on outstanding shares of Series B Preferred Stock from

the Dividend Payment Date next preceding the date of issue of such shares,

unless the date of issue of such shares is prior to the record date for the

first Dividend Payment Date, in which case dividends on such shares shall begin

to accrue from the date of issue of such shares, or unless the date of issue is

a Dividend Payment Date or is a date after the record date for the determination

of holders of shares of Series B Preferred Stock entitled to receive a quarterly

dividend and before such Dividend Payment Date, in either of which events such

dividends shall begin to accrue and be cumulative from such Dividend Payment

Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on

the shares of Series B Preferred Stock in an amount less than the total amount

of such dividends at the time accrued and payable on such shares shall be

allocated pro rata on a share-by-share basis among all such shares at the time

outstanding. The Board of Directors may fix a record date for the determination

of holders of shares of Series B Preferred Stock entitled to receive payment of

a dividend or distribution declared thereon, which record date shall be not more

than 60 days prior to the date fixed for the payment thereof.

 

              SECTION 3. VOTING RIGHTS. The holders of shares of Series B

Preferred Stock shall have the following voting rights:

 

                  (A) Subject to the provision for adjustment hereinafter set

         forth and except as otherwise provided in this certificate of

         incorporation or required by law, each share of Series B Preferred

         Stock shall entitle the holder thereof to 100 votes on all matters upon

         which the holders of the Common Stock of the corporation are entitled

         to vote. In the event the corporation shall at any time after July 9,

         1996 declare or pay any dividend on the Common Stock payable in shares

         of Common Stock, or effect a subdivision or combination or

         consolidation of the outstanding shares of Common Stock (by

         reclassification or otherwise than by payment of a dividend in shares

         of Common Stock) into a greater or lesser number of shares of Common

         Stock, then in each such

 

 

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case the number of votes per share to which holders of shares of Series B

Preferred Stock were entitled immediately prior to such event shall be adjusted

by multiplying such number by a fraction, the numerator of which is the number

of shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

         (B) Except as otherwise provided herein, in this certificate of

incorporation or in any other certificate of designations creating a series of

Preferred Stock or any similar stock, and except as otherwise required by law,

the holders of shares of Series B Preferred Stock and the holders of shares of

Common Stock and any other capital stock of the corporation having general

voting rights shall vote together as one class on all matters submitted to a

vote of stockholders of the corporation.

 

         (C) Except as set forth herein, or as otherwise provided by law,

holders of Series B Preferred Stock shall have no special voting rights and

their consent shall not be required (except to the extent they are entitled to

vote with holders of Common Stock as set forth herein) for taking any corporate

action.

 

         SECTION 4. CERTAIN RESTRICTIONS.

 

              (A) Whenever quarterly dividends or other dividends or

distributions payable on the Series B Preferred Stock as provided in Section 2

are in arrears, thereafter and until all accrued and unpaid dividends and

distributions, whether or not earned or declared, on shares of Series B

Preferred Stock outstanding shall have been paid in full, the corporation shall

not:

 

                           (i) declare or pay dividends, or make any other

                  distributions, on any shares of stock ranking junior (as to

                  dividends) to the Series B Preferred Stock;

 

                           (ii) declare or pay dividends, or make any other

                  distributions, on any shares of stock ranking on a parity (as

                  to dividends) with the Series B Preferred Stock, except

                  dividends paid ratably on the Series B Preferred Stock and all

                  such parity stock on which dividends are payable or in arrears

                  in proportion to the total amounts to which the holders of all

                  such shares are then entitled;

 

                           (iii) redeem or purchase or otherwise acquire for

                  consideration shares of any stock ranking junior (either as to

                  dividends or upon liquidation, dissolution or winding up) to

                  the Series B Preferred Stock, provided that the corporation

                  may at any time redeem, purchase or otherwise acquire shares

                  of any such junior stock in exchange for shares of any stock

                  of the corporation ranking junior (as to dividends and upon

                  dissolution, liquidation or winding up) to the Series B

                  Preferred Stock or rights, warrants or options to acquire such

                  junior stock;

 

                           (iv) redeem or purchase or otherwise acquire for

                  consideration any shares of Series B Preferred Stock, or any

                  shares of stock ranking on a parity (either as to dividends or

                  upon liquidation, dissolution or winding up) with the

 

 

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                  Series B Preferred Stock, except in accordance with a purchase

                  offer made in writing or by publication (as determined by the

                  Board of Directors) to all holders of such shares upon such

                  terms as the Board of Directors, after consideration of the

                  respective annual dividend rates and other relative rights and

                  preferences of the respective series and classes, shall

                  determine in good faith will result in fair and equitable

                  treatment among the respective series or classes.

 

                  (B) The corporation shall not permit any subsidiary of the

         corporation to purchase or otherwise acquire for consideration any

         shares of stock of the corporation unless the corporation could, under

         paragraph (A) of this Section 4, purchase or otherwise acquire such

         shares at such time and in such manner.

 

              SECTION 5. REACQUIRED SHARES. Any shares of Series B Preferred

Stock purchased or otherwise acquired by the corporation in any manner

whatsoever shall be retired and cancelled promptly after the acquisition

thereof. All such shares shall upon their retirement become authorized but

unissued shares of Preferred Stock and may be reissued as part of a new series

of Preferred Stock to be created by resolution or resolutions of the Board of

Directors, subject to any conditions and restrictions on issuance set forth

herein.

 

              SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any

liquidation, dissolution or winding up of the corporation, no distribution shall

be made (A) to the holders of the Common Stock or of shares of any other stock

of the corporation ranking junior, upon liquidation, dissolution or winding up,

to the Series B Preferred Stock unless, prior thereto, the holders of shares of

Series B Preferred Stock shall have received $100 per share, plus an amount

equal to accrued and unpaid dividends and distributions thereon, whether or not

earned or declared, to the date of such payment, provided that the holders of

shares of Series B Preferred Stock shall be entitled to receive an aggregate

amount per share, subject to the provision for adjustment hereinafter set forth,

equal to 100 times the aggregate amount to be distributed per share to holders

of shares of Common Stock, or (B) to the holders of shares of stock ranking on a

parity upon liquidation, dissolution or winding up with the Series B Preferred

Stock, except distributions made ratably on the Series B Preferred Stock and all

such parity stock in proportion to the total amounts to which the holders of all

such shares are entitled upon such liquidation, dissolution or winding up. In

the event, however, that there are not sufficient assets available to permit

payment in full of the Series B liquidation preference and the liquidation

preferences of all other classes and series of stock of the corporation, if any,

that rank on a parity with the Series B Preferred Stock in respect thereof, then

the assets available for such distribution shall be distributed ratably to the

holders of the Series B Preferred Stock and the holders of such parity shares in

the proportion to their respective liquidation preferences. In the event the

corporation shall at any time after July 9, 1996 declare or pay any dividend on

the Common Stock payable in shares of Common Stock, or effect a subdivision or

combination or consolidation of the outstanding shares of Common Stock (by

reclassification or otherwise than by payment of a dividend in shares of Common

Stock) into a greater or lesser number of shares of Common Stock, then in each

such case the aggregate amount to which holders of shares of Series B Preferred

Stock were entitled immediately prior to such event under the proviso in clause

(A) of the preceding sentence shall be adjusted by multiplying such amount by a

fraction the numerator of which is the number of shares of Common Stock

outstanding immediately after such event and the denominator of

 

 

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which is the number of shares of Common Stock that were outstanding immediately

prior to such event.

 

              SECTION 7. CONSOLIDATION, MERGER, ETC. In case the corporation

shall enter into any consolidation, merger, combination or other transaction in

which the shares of Common Stock are converted into, exchanged for or changed

into other stock or securities, cash and/or any other property, then in any such

case each share of Series B Preferred Stock shall at the same time be similarly

converted into, exchanged for or changed into an amount per share (subject to

the provision for adjustment hereinafter set forth) equal to 100 times the

aggregate amount of stock, securities, cash and/or any other property (payable

in kind), as the case may be, into which or for which each share of Common Stock

is converted, exchanged or converted. In the event the corporation shall at any

time after July 9, 1996 declare or pay any dividend on the Common Stock payable

in shares of Common Stock, or effect a subdivision or combination or

consolidation of the outstanding shares of Common Stock (by reclassification or

otherwise than by payment of a dividend in shares of Common Stock) into a

greater or lesser number of shares of Common Stock, then in each such case the

amount set forth in the preceding sentence with respect to the conversion,

exchange or change of shares of Series B Preferred Stock shall be adjusted by

multiplying such amount by a fraction, the numerator of which is the number of

shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

              SECTION 8. NO REDEMPTION. The shares of Series B Preferred Stock

shall not be redeemable from any holder.

 

              SECTION 9. RANK. The Series B Preferred Stock shall rank, with

respect to the payment of dividends and the distribution of assets upon

liquidation, dissolution or winding up of the corporation, junior to all other

series of Preferred Stock and senior to the Common Stock.

 

              SECTION 10. AMENDMENT. If any proposed amendment to this

certificate of incorporation would alter, change or repeal any of the

preferences, powers or special rights given to the Series B Preferred Stock so

as to affect the Series B Preferred Stock adversely, then the holders of the

Series B Preferred Stock shall be entitled to vote separately as a class upon

such amendment, and the affirmative vote of two-thirds of the outstanding shares

of the Series B Preferred Stock, voting separately as a class, shall be

necessary for the adoption thereof, in addition to such other vote as may be

required by the General Corporation Law of the State of Delaware.

 

              SECTION 11. FRACTIONAL SHARES. Series B Preferred Stock may be

issued in fractions of a share that shall entitle the holder, in proportion to

such holder's fractional shares, to exercise voting rights, receive dividends,

participate in distributions and to have the benefit of all other rights of

holders of Series B Preferred Stock.

 

         (5) PREEMPTIVE RIGHTS. Neither the holders of preferred stock nor the

holders of common stock shall have any preemptive rights, and the corporation

shall have the right to issue and sell to any person or persons any shares of

its capital stock or any option rights or

 

 

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any securities having conversion or option rights, without first offering such

shares, rights or securities to any holders of preferred stock or common stock.

 

         FIFTH: (1) The business and affairs of the corporation shall be managed

by a Board of Directors. The number of directors shall be fixed from time to

time by resolution adopted by affirmative vote of the majority of the Board of

Directors, but shall not be fixed at a number less than three.

 

              The directors shall be classified, with respect to the time for

which they severally hold office, into three classes, as nearly equal in number

as possible, with the term of the first class to expire at the 1999 annual

meeting of the stockholders, the term of office of the second class to expire at

the 2000 annual meeting of the stockholders, and the term of office of the third

class to expire at the 2001 annual meeting of the stockholders, with the members

of each class to hold office until their successors are elected and qualified.

At each succeeding annual meeting of the stockholders of the corporation, the

successors to the class of directors whose term expires at the meeting shall be

elected to hold office for a term expiring at the annual meeting of the

stockholders held in the third year following the year of their election.

 

              Newly created directorships resulting from any increase in the

number of directors and any vacancies on the Board of Directors resulting from

death, resignation, disqualification, removal or other cause shall be filled by

the affirmative vote of a majority of the remaining directors then in office,

even though less than a quorum of the Board of Directors. Any director elected

in accordance with the preceding sentence shall hold office for the remainder of

the full term of the class of directors in which the new directorship was

created or the vacancy occurred until such director's successor shall have been

elected and qualified. No decrease in the number of directors constituting the

Board of Directors shall shorten the term of any incumbent director.

 

              Directors may be removed only for cause, and then only by the

affirmative vote of at least 75 percent in voting power of all shares of the

corporation entitled to vote generally in the election of directors, voting as a

single class.

 

         (2) Notwithstanding the foregoing, whenever the holders of any one or

more series of preferred stock issued by the corporation shall have the right,

voting separately as a series or separately as a class with one or more such

other series, to elect directors at an annual or special meeting of

stockholders, the election, term of office, removal, filling of vacancies and

other features of such directorships shall be governed by the terms of this

certificate of incorporation (including any certificate of designations relating

to any series of preferred stock) applicable thereto, and such directors so

elected shall not be divided into classes pursuant to this Article FIFTH unless

expressly provided by such terms.

 

         SIXTH: The Board of Directors shall be authorized to make, amend,

alter, change, add to or repeal the By-Laws of the corporation in any manner not

inconsistent with the laws of the State of Delaware, subject to the power of the

stockholders to amend, alter, change, add to or repeal the By-Laws made by the

Board of Directors. Notwithstanding anything contained in this certificate of

incorporation to the contrary, the affirmative vote of the holders of at least

75 percent in voting power of all the shares of the corporation entitled to vote

generally in the election of directors, voting together as a single class, shall

be required in

 

 

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order for the stockholders to alter, amend or repeal any provision of the

By-Laws which is to the same effect as Article FIFTH, Article SIXTH, and Article

FOURTEENTH of this certificate of incorporation or to adopt any provision

inconsistent therewith.

 

         SEVENTH: (1) (a) The corporation shall, to the full extent permitted by

the Laws of the State of Delaware as then in effect or, if less stringent, in

effect on December 31, 1985 ("Delaware Law"), and as more fully described in the

By-Laws, indemnify any person (the "Indemnitee") made or threatened to be made a

party to any threatened, pending or completed action, suit or proceeding,

whether civil, criminal, administrative or investigative and whether or not by

or in the right of the corporation, by reason of the fact that the Indemnitee is

or was a director, officer or employee of the corporation or is or was serving

at the request of the corporation as a director, officer, employee, trustee,

partner, or other agent of any other enterprise or legal person (any such

action, suit or proceeding being herein referred to as a "Legal Action") against

all expenses (including attorneys' fees), judgments, fines and amounts paid in

settlement actually and reasonably incurred by the Indemnitee in connection with

such Legal Action or its investigation, defense or appeal (herein called

"Indemnified Expenses"), if the Indemnitee has met the standard of conduct

necessary under Delaware Law to permit such indemnification. Rights to

indemnification shall extend to the heirs, beneficiaries, administrators and

executors of any deceased Indemnitee.

 

              For purposes of this Section, reference to "any other enterprise

or legal person" shall include employee benefit plans; references to "fines"

shall include any excise taxes assessed on a person with respect to an employee

benefit plan; and references to "serving at the request of the corporation"

shall include any service as a director, officer, employee or agent of the

corporation which imposes duties on, or involves services by, such director,

officer, employee, or agent with respect to an employee benefit plan, its

participants, or beneficiaries.

 

              (b) The Indemnified Expenses shall be paid by the corporation in

advance as shall be appropriate to permit Indemnitee to defray such expenses

currently as incurred, provided the Indemnitee agrees in writing that in the

event it shall ultimately be determined as provided hereunder that Indemnitee

was not entitled to be indemnified, then Indemnitee shall promptly repay to the

corporation such amounts so paid.

 

              (c) Any amendment, repeal or modification of this Article SEVENTH,

the corporation's By-Laws or any applicable provision of Delaware Law, or any

other instrument, which eliminates or diminishes the indemnification rights

provided for in this Article SEVENTH shall be ineffective as against an

Indemnitee with respect to any Legal Action based upon actions taken or not

taken by the Indemnitee prior to such repeal or the adoption of such

modification or amendment. The provisions of this Article SEVENTH, Section (1)

shall be applicable to all Legal Actions made or commenced after the adoption

hereof, whether arising from acts or omissions to act occurring before or after

its adoption. The provisions of this Article SEVENTH, Section (1) shall be

deemed to be a contract between the corporation and each director or officer who

serves in such capacity at any time while this Article SEVENTH, Section (1) and

the relevant provisions of Delaware Law and other applicable law, if any, are in

effect. If any provision of this Article SEVENTH, Section (1) shall be found to

be invalid or limited in application by reason of any law or regulation, it

shall not affect the validity of the remaining provisions hereof. The rights of

indemnification provided in this Article

 

 

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SEVENTH, Section (1) shall neither be exclusive of, nor be deemed in limitation

of, any rights to which an officer, director, employee or agent may otherwise be

entitled or permitted by contract, this certificate of incorporation, vote of

stockholders or directors or otherwise, or as a matter of law, both as to

actions in such person's official capacity and actions in any other capacity

while holding such office, it being the policy of the corporation that

indemnification of any person whom the corporation is obligated to indemnify

pursuant to subsection (a) of this Article SEVENTH, Section (1) shall be made to

the fullest extent permitted by law.

 

              (d) The corporation may purchase and maintain insurance on behalf

of any person described in subsection (a) of this Article SEVENTH, Section (1)

against any liability asserted against such person, whether or not the

corporation would have the power to indemnify such person against such liability

under the provisions of this Article SEVENTH, Section (1) or otherwise.

 

         (2) To the full extent permitted by the General Corporation Law of the

State of Delaware as the same exists or may hereafter be amended, a director of

the corporation shall not be liable to the corporation or its stockholders for

monetary damages for breach of fiduciary duty as a director. No repeal,

amendment or modification of this Article, whether direct or indirect, shall

eliminate or reduce its effect with respect to any act or omission of a director

of the corporation occurring prior to such repeal, amendment or modification.

 

         EIGHTH: Whenever a compromise or arrangement is proposed between this

corporation and its creditors or any class of them and/or between this

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 this corporation or of any creditor or stockholder thereof or on the

application of any receiver or receivers appointed for this corporation under

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 this corporation under

Section 79 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 this

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 this corporation, as the case may be, agree to any compromise or

arrangement and to any reorganization of this 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 this corporation, as the case

may be, and also on this corporation.

 

         NINTH:   [Reserved]

 

         TENTH:   [Reserved]

 

         ELEVENTH:[Reserved]

 

         TWELFTH: [Reserved]

 

                                       10

<PAGE>   11

         THIRTEENTH: The vote of the stockholders of the corporation required to

approve any Business Transaction shall be as set forth in this Article

THIRTEENTH. Each capitalized term shall have the meaning ascribed to it in

Paragraph (B) of this Article.

 

         (A) Notwithstanding any provision of law or any other provision of this

certificate of incorporation or any agreement with any national securities

exchange or otherwise which might permit a lesser vote or no vote and in

addition to any affirmative vote required of the holders of any particular class

or series of Voting Stock by law or by this certificate of incorporation, the

affirmative vote of the holders of not less than 51% of the outstanding shares

of Voting Stock of the corporation beneficially owned by stockholders other than

the Related Person shall be required for the approval or authorization of any

Business Transaction; provided, however, that such 51% voting requirement shall

not be applicable to any Business Transaction, and such Business Transaction

shall require only such affirmative vote as is required by law, any other

provision of this certificate of incorporation, any preferred stock designation

or any agreement with any national securities exchange, if, in the case of a

Business Transaction that does not involve any cash or other consideration being

received by the stockholders of the corporation solely in respect of their

ownership of shares of Voting Stock of the corporation, the condition specified

in the following paragraph (1) is satisfied, or, in the case of any other

Business Transaction, the conditions specified in either of the following

paragraphs (1) and (2) are satisfied.

 

                  (1) The Continuing Directors at the time of such Business

         Transaction constitute at least a majority of the Board of Directors of

         the corporation and such Business Transaction shall have been approved

         by a majority vote of the Continuing Directors; or

 

                  (2)(a) The consideration to be received by holders of a

         particular class or series of outstanding Voting Stock (including

         common stock) shall be in cash or in the same form as was previously

         paid in order to acquire beneficially shares of such class or series of

         Voting Stock that are beneficially owned by the Related Person and, if

         the Related Person beneficially owns shares of any class or series of

         Voting Stock that were acquired with varying forms of consideration,

         the form of consideration to be received by holders of such class or

         series of Voting Stock shall be either cash or the form used to acquire

         beneficially the largest number of shares of such class or series of

         Voting Stock beneficially acquired by it prior to the Announcement

         Date; and

 

                  (b) The aggregate amount of the cash and the Fair Market Value

         as of the Consummation Date of any consideration other than cash to be

         received per share by holders of common stock in such Business

         Transaction shall be at least equal to the highest of the following (it

         being intended that the requirements of this clause (A)(2)(b) shall be

         required to be met with respect to all shares of common stock

         outstanding whether or not the Related Person has acquired any shares

         of the common stock):

 

                           i) If applicable, the highest per share price

                  (including any brokerage commissions, transfer taxes and

                  soliciting dealers' fees) paid in order to acquire any shares

                  of common stock beneficially owned by the Related Person which

                  were acquired beneficially by such Related Person (x) with in

                  the two-year

 

 

                                       11

<PAGE>   12

                  period immediately prior to the Announcement Date or (y) in

                  the transaction in which it became a Related Person, whichever

                  is higher; or

 

                           ii) The Fair Market Value per share of common stock

                  on the Announcement Date or on the Determination Date,

                  whichever is higher; and

 

         (c) The aggregate amount of the cash and the Fair Market Value as of

the Consummation Date of any consideration other than cash to be received per

share by holders of shares of any other class or series of Voting Stock, other

than common stock, shall be at least equal to the highest of the following (it

being intended that the requirements of this clause (A)(2)(c) shall be required

to be met with respect to every class and series of such outstanding Voting

Stock, whether or not the Related Person has previously acquired any shares of a

particular class or series of Voting Stock):

 

                           i) If applicable, the highest per share price

                  (including any brokerage commissions, transfer taxes and

                  soliciting dealers' fees) paid in order to acquire any shares

                  of such class or series of Voting Stock beneficially owned by

                  the Related Person which were acquired beneficially by such

                  Related Person (x) with the two-year period immediately prior

                  to the Announcement Date or (y) in the transaction in which it

                  became a Related Person, whichever is higher;

 

                           ii) If applicable, the highest preferential amount

                  per share to which the holders of share of such class or

                  series of Voting Stock are entitled in the event of any

                  voluntary or involuntary liquidation, dissolution or winding

                  up of the corporation; or

 

                           iii) The Fair Market Value per share of such class or

                  series of Voting Stock on the Announcement Date or the

                  Determination Date, whichever is higher; and

 

         (d) After such Related Person has become a Related Person and prior to

the consummation of such Business Transaction:

 

                           i) Such Related Person shall not have become the

                  Beneficial Owner of any additional shares of Voting Stock of

                  the corporation, except as part of the transaction in which it

                  became a Related Person or upon conversion of convertible

                  securities acquired by it prior to becoming a Related Person

                  or as a result of a pro rata stock dividend or stock split;

                  and

 

                           ii) Such Related Person shall not have received the

                  benefit, directly or indirectly (except proportionately as a

                  stockholder), of any loans, advances, guarantees, pledges or

                  other financial assistance or tax credits or other tax

                  advantages provided by the corporation or any Subsidiary,

                  whether in anticipation of or in connection with such Business

                  Transaction or otherwise; and

 

                                       12

<PAGE>   13

                           iii) Such Related Person shall not have caused any

                  material change in the corporation's business or capital

                  structure, including, without limitation, the issuance of

                  shares of capital stock of the corporation to any third party;

                  and

 

                           iv) There shall have been (aa) no failure to declare

                  and pay at the regular date therefor any full quarterly

                  dividends (whether or not cumulative) on any outstanding

                  preferred stock, and (bb) no reduction in the annual rate of

                  dividends paid on common stock (after giving effect to any

                  reclassification, including any reverse stock split,

                  recapitalization, reorganization or similar transaction which

                  has the effect of enlarging or reducing the number of

                  outstanding shares of common stock), unless such failure or

                  reduction shall have been approved by a majority of the

                  Continuing Directors; and

 

         (e) A proxy or information statement describing the proposed Business

Transaction and complying with the requirements of the Securities Exchange Act

of 1934 and the rules and regulations thereunder (or any subsequent provisions

replacing such Act, rules and regulations), whether or not the corporation is

then subject to such requirements, shall be mailed at least thirty (30) days

prior to the consummation of such Business Transaction to the public

stockholders of the corporation and shall contain at the front thereof in a

prominent place (i) any recommendations as to the advisability (or

inadvisability) of the Business Transaction which the Continuing Directors, if

any, may choose to state and (ii) the opinion of a reputable national investment

banking firm as to the fairness (or not) of such Business Transaction from the

point of view of the remaining public stockholders of the corporation (such

investment banking firm to be engaged solely on behalf of the remaining public

stockholders, to be paid a reasonable fee for their services by the corporation

upon receipt of such opinion, to be unaffiliated with such Related Person, and,

if there are at the time any Continuing Directors, to be selected by a majority

of the Continuing Directors).

 

(B)      or purposes of this Article THIRTEENTH:

 

         (1)      The term "BUSINESS TRANSACTION" shall mean:

 

                  (a) Any merger or consolidation of the corporation or any

         Subsidiary with (i) any Related Person or (ii) any other corporation or

         entity (whether or not itself a Related Person) which is, or after such

         merger or consolidation, would be, an Affiliate of a Related Person;

 

                  (b) Any sale, lease, exchange, mortgage, pledge, transfer or

         other disposition (in one transaction or in a series of transactions)

         to or with any Related Person or any Affiliate of any Related Person of

         assets of the corporation or any Subsidiary having an aggregate Fair

         Market Value of $10,000,000 or more;

 

                  (c) The adoption of any plan or proposal for the liquidation

         or dissolution of the corporation proposed by or on behalf of a Related

         Person or any Affiliate of the Related Person;

 

                                       13

<PAGE>   14

                  (d) The issuance of or transfer by the corporation or any

         Subsidiary (in one transaction or in a series of related transactions)

         of any securities of the corporation or any Subsidiary to a Related

         Person, or any Affiliate of a Related Person, in exchange for cash,

         securities or other property (or a combination thereof) having a Fair

         Market Value of $10,000,000 or more, other than the issuance of

         securities upon the conversion of convertible securities of the

         corporation or any Subsidiary which were not acquired by such Related

         Person (or such Affiliate) from the corporation or a Subsidiary;

 

                  (e) Any reclassification of securities (including any reverse

         stock split), or recapitalization or reorganization of the corporation,

         or any merger or consolidation of the corporation with any of its

         Subsidiaries or any self tender offer for or repurchase of securities

         of the corporation or any Subsidiary by the corporation or any

         Subsidiary or any other transaction (whether or not with or into or

         otherwise involving a Related Person) which in any such case has the

         effect, directly or indirectly, of increasing the proportionate share

         of the outstanding shares of any class or series of stock or securities

         convertible into stock of the corporation or any Subsidiary which is

         directly or indirectly beneficially owned by any Related Person or any

         Affiliate of any Related Person;

 

         (2) A "PERSON" shall mean any individual, firm, corporation, group (as

such term is used in Rule 13d of the General Rules and Regulations under the

Securities Exchange Act of 1934, as in effect on December 31, 1984) or other

entity.

 

         (3) "RELATED PERSON" shall mean any person (other than the corporation

or any Subsidiary or any employee benefit plan of the corporation or any

Subsidiary) who or which:

 

                  (a) Is the beneficial owner, directly or indirectly, of more

         than ten percent of the combined voting power of the then outstanding

         shares of Voting Stock; or

 

                  (b) Is an Affiliate of the corporation and at anytime within

         the two-year period immediately prior to the date in question was the

         beneficial owner, directly or indirectly, of ten percent or more of the

         combined voting power of the then outstanding shares of Voting Stock;

         or

 

                  (c) Is an assignee of or has otherwise succeeded to the

         beneficial ownership of any shares of Voting Stock that were at any

         time within the two-year period immediately prior to the date in

         question beneficially owned by a Related Person, if such assignment or

         succession shall have occurred in the course of a transaction or series

         of transactions not involving a public offering within the meaning of

         the Securities Act of 1933.

 

         (4) A person shall be a "BENEFICIAL OWNER" of any Voting Stock:

 

                                       14

<PAGE>   15

                  (a) Which such person or any of its Affiliates or Associates

         beneficially owns, directly or indirectly; or

 

                  (b) which such person or any of its Affiliates or Associates

         has (a) the right to acquire (whether or not such right is exercisable

         immediately), pursuant to any agreement, arrangement or understanding

         or upon the exercise of conversion rights, exchange rights, warrants or

         options, or otherwise, or (b) the right to vote or direct the vote

         pursuant to any agreement, arrangement or understanding; or

 

                  (c) which are beneficially owned, directly or indirectly, by

         any other person with which such person or any of its Affiliates or

         Associates has any agreement, arrangement or understanding for the

         purpose of acquiring, holding, voting or disposing of any shares of

         Voting Stock.

 

         (5) For the purposes of determining whether a person is a Related

Person pursuant to Paragraph (B)(3) of this Article THIRTEENTH, the number of

shares of Voting Stock deemed to be outstanding shall include shares deemed

owned by such Related Person through application of Paragraph (B)(4) of this

Article but shall not include any other shares of Voting Stock that may be

issuable pursuant to any agreement, arrangement or understanding, or upon

exercise of conversion rights, warrants or options, or otherwise.

 

         (6) "AFFILIATE" and "ASSOCIATE" shall have the respective meanings

ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under

the Securities Exchange Act of 1934, as in effect on December 31, 1984.

 

         (7) "SUBSIDIARY" shall mean any corporation more than 50% of whose

outstanding stock having ordinary voting power in the election of directors is

owned, directly or indirectly, by this corporation or by a Subsidiary or by this

corporation and one or more Subsidiaries; provided, however, that for the

proposes of the definition of Related Person set forth in Paragraph (B)(3) of

this Article THIRTEENTH, the term "Subsidiary" shall mean only a corporation of

which a majority of each class of equity security is owned, directly or

indirectly, by this corporation.

 

         (8) "CONTINUING DIRECTOR" shall mean any member of the Board of

Directors of this corporation who is unaffiliated with, and not a nominee of,

the Related Person and was a member of the Board prior to the time that the

Related Person became a Related Person, and any successor of a Continuing

Director who is unaffiliated with, and not a nominee of, the Related Person and

who is recommended to succeed a Continuing Director by a majority of Continuing

Directors then on the Board of Directors.

 

         (9) "FAIR MARKET VALUE" shall mean: (1) in the case of stock, the

highest closing sale price during the 30-day period preceding the date in

question of a share of such stock on the Composite Tape of New York Stock

Exchange-Listed stocks, or, if such stock is not quoted on the New York Stock

Exchange-Composite Tape, on the

 

 

                                       15

<PAGE>   16

         principal United States securities exchange registered under the

         Securities Exchange Act of 1934 on which such stock is listed, or, if

         such stock is not listed on any such exchange, the highest closing

         sales price or bid quotation with respect to a share of such stock

         during the 30-day period preceding the date in question on the National

         Association of Securities Dealers, Inc. Automated Quotation System or

         any system then in use, or if no such quotations are available, the

         fair market value on the date in question of a share of such stock as

         determined by a majority of the Continuing Directors in good faith; and

         (2) in the case of stock of any class or series which is not traded on

         any United States registered securities exchange nor in the

         over-the-counter market or in the case of property other than cash or

         stock, the fair market value of such property on the date in question

         as determined by a majority of the Continuing Directors in good faith.

 

                  (10) In the event of any Business Transaction in which the

         corporation survives, the phrase "any consideration other than cash to

         be received" as used in Paragraph (A)(2)(b) and (A)(2)(c) of this

         Article THIRTEENTH shall include the shares of common stock and/or the

         share of any other class of outstanding Voting Stock retained by the

         holders of such shares.

 

                  (11) "ANNOUNCEMENT DATE" shall mean the date of first public

         announcement of the proposed Business Transaction.

 

                  (12) "DETERMINATION DATE" shall mean the date on which the

         Related Person became a Related Person.

 

                  (13) "CONSUMMATION DATE" shall mean the date of the

         consummation of the Business Transaction.

 

                  (14) The terms "VOTING STOCK" shall mean all outstanding

         shares of capital stock of all classes and series of the corporation

         entitled to vote generally in the election of directors of the

         corporation, in each case voting together as a single class.

 

         (C) If the Continuing Directors constitute at least a majority of the

Board of Directors of the corporation, a majority of such Continuing Directors

shall have the power and duty to determine, on the basis of information known to

them after reasonable inquiry, all facts necessary to determine compliance with

this Article THIRTEENTH, including, without limitation:

 

                  (1) Whether a person is a Related Person;

 

                  (2) The number of shares of Voting Stock beneficially owned by

         any person;

 

                  (3) Whether a person is an Affiliate or Associate of another

         person;

 

                  (4) Whether the requirements of (A) of this Article THIRTEENTH

         have been met with respect to any Business Transaction; and

 

                                       16

<PAGE>   17

                  (5) Whether the assets which are the subject of any Business

         Transaction have, or the consideration to be received for the issuance

         or transfer of securities by the corporation or any Subsidiary in any

         Business Transaction has, an aggregate Fair Market Value of $10,000,000

         or more. The good faith determination of a majority of the Continuing

         Directors on such matters shall be conclusive and binding for all

         purposes of this Article THIRTEENTH.

 

         (D) Nothing contained in this Article THIRTEENTH shall be construed to

relieve any Related Person from any fiduciary obligation imposed by law.

 

         (E) Notwithstanding anything contained in this certificate of

incorporation to the contrary, the affirmative vote of (1) the holders of at

least 51% of the Voting Stock, voting together as a single class, and (2) the

holders of a least 51% of the Voting Stock, voting together as a single class,

other than shares of Voting Stock beneficially owned by a Related Person, shall

be required to alter, amend or repeal this Article THIRTEENTH or to adopt any

provision inconsistent therewith.

 

         FOURTEENTH: Any action required or permitted to be taken by the holders

of the common stock of the corporation must be effected at a duly called annual

or special meeting of such holders and may not be effected by any consent in

writing by such holders. Except as otherwise required by law and subject to the

rights of the holders of any series of preferred stock, special meetings of

stockholders of the corporation may be called only by the Chief Executive

Officer of the corporation or by the Board of Directors pursuant to a resolution

approved by the Board of Directors.

 

         FIFTEENTH: Notwithstanding anything contained in this certificate of

incorporation to the contrary, the affirmative vote of the holders of at least

75 percent in voting power of all the shares of the corporation entitled to vote

generally in the election of directors, voting together as a single class, shall

be required to alter, amend or repeal Article FIFTH, Article SIXTH, Article

FOURTEENTH or this Article FIFTEENTH or to adopt any provision inconsistent

therewith.

 

                                   CERTIFICATE

 

 

I, the undersigned, _________________________________, (Assistant) Secretary of

KERR-MCGEE CORPORATION, a Delaware corporation, do hereby certify that the

foregoing is a full, true, and correct copy of the Restated Certificate of

Incorporation of said Corporation in effect on the date of this certificate.

 

Given under my hand and seal of the Corporation this ______ day of

_________________, _____.

 

 

 

                                                 -------------------------------

                                                 (Assistant) Secretary

 

 

(SEAL)

 

 

 

 

                                    17

</TEXT>

</DOCUMENT>