Exhibit 4.1


 


AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION


 


OF


 


HARVEST OIL & GAS CORP.


 


The present name of the corporation is Harvest
Oil & Gas Corp. (the “Corporation”). The Corporation was incorporated under the name “Harvest Oil
& Gas Corp.” by the filing of its original certificate of incorporation (the “Original Certificate of Incorporation”)
with the Secretary of State of the State of Delaware on May 23, 2018. This Amended and Restated Certificate of Incorporation of
the Corporation, was duly adopted, without the need for approval by the board of directors (the “Board”) or
the stockholders of the corporation, in accordance with §§ 241, 245 and 303 of the General Corporation Law of the State
of Delaware (the “DGCL”) and in accordance with that certain Joint Prepackaged Plan of Reorganization of EV
Energy Partners, L.P. and certain of its subsidiaries (the “Plan”) approved on May 17, 2018 by order of the
United States Bankruptcy Court for the District of Delaware (the “Court”) in In re EV Energy Partners, L.P.,
et al., under Chapter 11 of the United States Bankruptcy Code (11 U.S.C. §§ 101-1330), as amended (the “Bankruptcy
Code”). The Original Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to
read as follows:


 


Article
I


 


Section
1.1.          Name. The
name of the corporation is Harvest Oil & Gas Corp. (the “Corporation”).


 


Article
II


 


Section
2.1.          Address. The
registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware
19801; and the name of the Corporation’s registered agent at such address is The Corporation Trust Company.


 


Article
III


 


Section
3.1.          Purpose. The
purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized
under the General Corporation Law of the State of Delaware (the “DGCL”),
as the same exists or may hereafter be amended from time to time.


 




     


     


    

  


Article
IV


 


Section
4.1.          Capitalization. The total number of shares
of all classes of stock that the Corporation is authorized to issue is 75,000,000 shares, consisting of (i) 65,000,000 shares
of common stock, par value $0.01 per share (the “Common Stock”) and (ii) 10,000,000 shares of preferred stock,
par value $0.01 per share (“Preferred Stock”). The number of authorized shares of any of the Common Stock or
Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the
provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the
Common Stock or Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holder is required
pursuant to this Amended and Restated Certificate of Incorporation (including any certificate of designation relating to any series
of Preferred Stock).


 


Section
4.2.          Preferred Stock.


 


(A)         The
Board of Directors of the Corporation (the “Board”) is hereby expressly authorized, by resolution or resolutions,
at any time and from time to time, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred
Stock and, with respect to each such series, to fix the number of shares constituting such series and the designation of such series,
the voting powers (if any) of the shares of such series, and the powers, preferences and relative, participating, optional or other
special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series and to cause
to be filed with the Secretary of State of the State of Delaware a certificate of designation with respect thereto. The powers,
preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.


 


(B)         Any
of the designations, powers, preferences, and relative, participating, optional or other special rights of any series of Preferred
Stock, and the qualifications, limitations or restrictions thereof, may be dependent on facts ascertainable outside this Amended
and Restated Certificate of Incorporation, or outside the resolution or resolutions providing for the issue of such series of Preferred
Stock adopted by the Board pursuant to authority expressly vested in it by this Amended and Restated Certificate of Incorporation.
Except as applicable law or this Amended and Restated Certificate of Incorporation otherwise may require, the terms of any series
of Preferred Stock may be amended without consent of the holders of any other series of Preferred Stock or any class of capital
stock of the Corporation. The relative powers, preferences and rights of each series of Preferred Stock in relation to the powers,
preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board
in the resolution or resolutions adopted pursuant to the authority granted in this Section 4.2 and the consent, by
class or series vote or otherwise, of holders of such series of Preferred Stock as are from time to time outstanding shall not
be required for the issuance by the Board of any other series of Preferred Stock, whether or not the powers, preferences and rights
of such other series shall be fixed by the Board as senior to, or on a parity with, the powers, preferences and rights of such
outstanding series, or any of them.


 


(C)         Except
as otherwise required by law, holders of a series of Preferred Stock, as such, shall be entitled only to such voting rights, if
any, as shall expressly be granted thereto by this Amended and Restated Certificate of Incorporation (including any certificate
of designation relating to such series of Preferred Stock).


 




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Section
4.3.         Common Stock.


 


(A)         Voting
Rights.


 


(1)         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 under applicable law. No stockholder shall be entitled to exercise
any right of cumulative voting.


 


(2)         Notwithstanding
the foregoing, to the fullest extent permitted by law, holders of Common Stock, as such, shall have no voting power with respect
to, and shall not be entitled to vote on, any amendment to this Amended and Restated Certificate of Incorporation (including any
certificate of designation 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 Amended and Restated Certificate of Incorporation (including any
certificate of designation relating to any series of Preferred Stock) or pursuant to the DGCL. Except as otherwise provided in
this Amended and Restated Certificate of Incorporation or required by applicable law, the holders of Common Stock shall vote together
as a single class (or, if the holders of one or more series of Preferred Stock are entitled to vote together with the holders of
Common Stock, as a single class with the holders of such other series of Preferred Stock) on all matters submitted to a vote of
the stockholders generally.


 


(B)         Certain
Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Corporation directly or indirectly affecting the shares of the Common Stock, the type and number of shares
of the Common Stock shall be adjusted appropriately.


 


(C)         Dividends
and Distributions. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred
Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to
the payment of dividends and other distributions in cash, property or securities of the Corporation, such dividends and other distributions
may be declared and paid ratably on the Common Stock out of the assets of the Corporation that are by law available therefor at
such times and in such amounts as the Board in its discretion shall determine.


 


(D)         Liquidation,
Dissolution or Winding Up. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and subject to
the rights, if any, of the holders of Preferred Stock or any class or series of stock having a preference over or the right to
participate with the Common Stock as to distributions upon dissolution or liquidation or winding up, the holders of all outstanding
shares of Common Stock shall be entitled to receive the remaining assets of the Corporation available for distribution ratably
in proportion to the number of shares held by each such stockholder.


 




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Section
4.4.          Non-Voting Equity.
The Corporation shall not issue nonvoting equity securities to the extent prohibited by Section 1123(c)(6) of the Bankruptcy Code;
provided, however, that the foregoing restriction shall (i) have no further force and effect beyond that required
under Section 1123(a)(6) of the Bankruptcy Code, (ii) only have such force and effect for so long as Section 1123(a)(6) of the
Bankruptcy Code is in effect and applicable to the Corporation and (iii) in all events may be amended or eliminated in accordance
with applicable law as from time to time may be in effect.


 


Section
4.5.          Stockholder Action by Written Consent without
a Meeting. Unless any provision of this Amended and Restated Certificate of Incorporation
or the DGCL expressly requires that such action be taken solely at a stockholders’ meeting, any action required or permitted
to be taken at any annual or special meeting of stockholders may be taken without a meeting and without a vote if a consent or
consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock entitled to
vote having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at
which all shares of capital stock entitled to vote thereon were present and voted, and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, the Corporation’s principal place of business, or an officer
or agent of the Corporation having custody of the books in which proceedings of meetings of stockholders are recorded.


 


Article
V


 


Section
5.1.          Amendment of Certificate of Incorporation.
The Corporation reserves the right to amend this Amended and Restated Certificate of Incorporation in any manner permitted by
the DGCL; provided, however, that this Amended and Restated Certificate of Incorporation may only be amended, altered,
repealed or rescinded, in whole or in part, with (i) the affirmative vote of the holders of a majority in voting power of all
the then outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class and
(ii) the affirmative vote of a majority of the members of the Board.


 


Section
5.2.          Amendment of Bylaws.
The Board is expressly authorized to make, repeal, alter, amend and rescind, in whole or in part, the bylaws of the Corporation
(as in effect from time to time, the “Bylaws”)
without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware or this Amended
and Restated Certificate of Incorporation. Stockholders shall also have the power to make, repeal, alter, amend and rescind, in
whole or in part, the Bylaws without any requirement to obtain separate Board approval; provided, however, that, in addition to
any vote of the holders of any class or series of stock of the Corporation required by applicable law, by this Amended and Restated
Certificate of Incorporation or by the Bylaws, the affirmative vote of the holders of at least sixty six and two thirds percent
(66 2/3%) in voting power of all the then outstanding shares of stock of the Corporation entitled to vote thereon, voting together
as a single class, shall be required in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole
or in part, any provision of the Bylaws or to adopt any provision inconsistent therewith. No Bylaws hereafter made or adopted,
nor any alteration or amendment thereto or repeal or rescission thereof, shall invalidate any prior act of the Board that was
valid at the time it was taken.


 




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Article
VI


 


Section
6.1.         Board of Directors.


 


(A)         Except
as provided in this Amended and Restated Certificate of Incorporation or the DGCL, the business and affairs of the Corporation
shall be managed by or under the direction of the Board. Except as otherwise provided for or fixed pursuant to the provisions of
Article IV (including any certificate of designation with respect to any series of Preferred Stock) and this Article
VI relating to the rights of the holders of any series of Preferred Stock to elect additional directors, the total number of
directors shall be determined from time to time exclusively by resolution adopted by the Board and the Board shall initially be
comprised of five (5) directors. The directors shall consist of a single class, with the initial term of office to expire at the
2019 annual meeting of stockholders, which shall be held no later than June 1, 2019, and each director shall hold office until
his or her successor shall have been duly elected and qualified, subject, however, to such director’s earlier death, resignation,
retirement, disqualification or removal. At each annual meeting of stockholders, directors elected to succeed those directors whose
terms then expire shall be elected for a term of office to expire at the next succeeding annual meeting of stockholders after their
election, with each director to hold office until his or her successor shall have been duly elected and qualified, subject, however,
to such director’s earlier death, resignation, retirement, disqualification or removal.


 


(B)         Subject
to the rights granted to the holders of any one or more series of Preferred Stock then outstanding, any newly created directorship
on the Board that results from an increase in the number of directors and any vacancy occurring in the Board (whether by death,
resignation, retirement, disqualification, removal or other cause) may only be filled by a majority of the directors then in office,
although less than a quorum or by a sole remaining director. Any director elected to fill a vacancy or newly created directorship
shall hold office until the next annual meeting and until his or her successor shall be elected and qualified, subject,
however, to his or her earlier death, resignation, retirement, disqualification or removal, in which case a replacement
shall be designated pursuant to the immediately preceding sentence.


 


(C)         Any
or all of the directors (other than the directors elected by the holders of any series of Preferred Stock, voting separately as
a series or together with one or more other such series, as the case may be) may be removed with or without cause only by the affirmative
vote of the holders of a majority in voting power of all the then outstanding shares of stock of the Corporation entitled to vote
thereon, voting together as a single class.


 


(D)         During
any period when the holders of any series of Preferred Stock, voting separately as a series or together with one or more series,
have the right to elect additional directors, then upon commencement and for the duration of the period during which such right
continues: (i) the then otherwise total authorized number of directors of the Corporation shall automatically be increased
by such specified number of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors
so provided for or fixed pursuant to said provisions, and (ii) each such additional director shall serve until such director’s
successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant
to said provisions, whichever occurs earlier, subject to his or her earlier death, resignation, retirement, disqualification or
removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders
of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions
of such stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any
vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate
and the total authorized number of directors of the Corporation shall be reduced accordingly.


 




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(E)         Elections
of directors need not be by written ballot unless the Bylaws shall so provide.


 


Article
VII


 


Section
7.1.         Limitation on Liability of Directors.


 


(A)         To
the fullest extent permitted by the DGCL as it now exists or may hereafter be amended, a director of the Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty owed to the Corporation
or its stockholders, 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.


 


(B)         Neither
the amendment nor repeal of this Article VII, nor the adoption of any provision of this Amended and Restated Certificate
of Incorporation, nor, to the fullest extent permitted by the DGCL, any modification of law shall eliminate, reduce or otherwise
adversely affect any right or protection of a current or former director of the Corporation existing at the time of such amendment,
repeal, adoption or modification.


 


Article
VIII


 


Indemnification


 


Section
8.1.          Right to Indemnification. To the fullest
extent permitted by applicable law, the Corporation shall indemnify any 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 (“Proceeding”), whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the Person
is or was a director, officer, employee, fiduciary or agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise
(“Other Entity”), against expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Person in connection with such Proceeding if the Person acted in good faith
and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe the Person’s conduct was unlawful, provided, however,
that the Corporation shall not be obligated to indemnify against any amount paid in settlement unless the Corporation has consented
to such settlement. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the Person did not act in good faith and in a manner which
the Person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that the Person’s conduct was unlawful. To the extent specified by
the members of the Board not party to the applicable action or suit at any time and to the fullest extent permitted by applicable
law, the Corporation shall indemnify any Person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that
the Person is or was a director, officer, employee, fiduciary or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee, fiduciary or agent of an Other Entity against expenses (including attorneys’
fees) actually and reasonably incurred by the Person in connection with the defense or settlement of such action or suit if the
Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such Person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State
of Delaware (the “Court of Chancery”) or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Person is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.


 




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Section
8.2.          Right to Advancement of Expenses. The
Corporation shall, from time to time, reimburse or advance to any director or officer or other Person entitled to indemnification
hereunder the funds necessary for payment of expenses, including attorneys’ fees and disbursements, incurred in connection
with any Proceeding, in advance of the final disposition of such Proceeding; provided, however, that, if required by the DGCL,
such expenses incurred by or on behalf of any director or officer or other Person may be paid in advance of the final disposition
of a Proceeding only upon receipt by the Corporation of an undertaking, by or on behalf of such director or officer (or other
Person indemnified hereunder), to repay any such amount so advanced if it shall ultimately be determined by final judicial decision
from which there is no further right of appeal that such director, officer or other Person is not entitled to be indemnified for
such expenses.


 


Section
8.3.          Claims by Indemnifiable Persons. If
a claim for indemnification or advancement of expenses under this Article VIII is not paid in full within thirty (30) days
after a written claim therefor by any Person entitled to indemnification and/or advancement of expenses under this Article
VIII (an “Indemnifiable Person”) has been received by the Corporation (and any undertaking required under
Section 8. 2 of this Article VIII), the Indemnifiable Person may file suit to recover the unpaid amount of such
claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of
expenses, the Indemnifiable Person shall be entitled to be paid the expense of prosecuting or defending such claim to the fullest
extent permitted by applicable law. In any such action the Corporation shall have the burden of proving that the Indemnifiable
Person is not entitled to the requested indemnification or advancement of expenses under applicable law. Neither the failure of
the Corporation (including its Board or a committee thereof, its independent legal counsel and its stockholders) to have made
a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses
is proper in the circumstances nor an actual determination by the Corporation (including its Board or a committee thereof, its
independent legal counsel and its stockholders) that such Indemnifiable Person is not entitled to such indemnification or reimbursement
or advancement of expenses shall constitute a defense to the action or create a presumption that such Indemnifiable Person is
not so entitled. Such an Indemnifiable Person shall also be indemnified, to the fullest extent permitted by applicable law, for
any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such action. Any right to indemnification or reimbursement or advancement
of expenses shall be determined by the applicable law in effect at the time indemnification or reimbursement or advancement of
expenses is sought.


 




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Section
8.4.          Indemnification Not Exclusive. The
rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which a Person seeking indemnification or reimbursement or advancement
of expenses may have or hereafter be entitled under any statute, the Bylaws, this Amended and Restated Certificate of Incorporation,
any agreement (including any policy of insurance purchased or provided by the Corporation under which directors, officers, employees
and other agents of the Corporation are covered), any vote of the holders of capital stock of the Corporation entitled to vote
or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity
while holding such office.


 


Section
8.5.          Continuing Rights. The rights to
indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Article VIII shall
continue as to a Person who has ceased to be a director or officer (or other Person indemnified hereunder) and shall inure to
the benefit of the executors, administrators, legatees and distributees of such Person.


 


Section
8.6.          Insurance. The Corporation shall have
the power to purchase and maintain insurance on behalf of any Person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a director, officer, member, manager, employee or agent
of an Other Entity, against any liability asserted against such Person and incurred by such Person in any such capacity, or arising
out of such person’s status as such, whether or not the Corporation would have the power to indemnify such Person against
such liability under the provisions of this Article VIII, the Bylaws or under Section 145 of the DGCL or any other provision
of applicable law.


 


Section
8.7.          Contract Rights; Amendment or Repeal.
The provisions of this Article VIII shall be a contract between the Corporation, on the one hand, and each director and
officer who serves in such capacity at any time while this Article VIII is in effect and any other Person indemnified hereunder,
on the other hand, pursuant to which the Corporation and each such director, officer, or other Person intend to be legally bound.
Notwithstanding anything to the contrary contained in this Certificate, no amendment, repeal or modification of this Article
VIII shall affect any rights or obligations with respect to any state of facts then or theretofore existing or any proceeding
theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.


 




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Section
8.8.          Requested Services. Any director,
officer, employee, fiduciary or agent of the Corporation serving in any capacity in (i) another corporation of which a majority
of the shares entitled to vote in the election of its directors is held, directly or indirectly, by the Corporation or (ii) any
employee benefit plan of the Corporation or any corporation referred to in clause (i) shall be deemed to be doing so at the request
of the Corporation.


 


Section
8.9.          Indemnitor of First Resort. It is the
intent that with respect to all advancement, reimbursement and indemnification obligations under this Article VIII, the
Corporation shall be the indemnitor of first resort (i.e., its obligations to Indemnifiable Persons under this Certificate
are primary and any obligation of any other Person to provide advancement or indemnification for the same losses incurred by any
Indemnifiable Person are secondary), and if any Person pays or causes to be paid, for any reason, any amounts otherwise indemnifiable
hereunder or under any other indemnification agreement (whether pursuant to this Amended and Restated Certificate of Incorporation,
the Bylaws, contract, applicable law or regulation), then (i) such Person shall be fully subrogated to all rights hereunder of
the Indemnifiable Person with respect to such payment and (ii) the Corporation shall reimburse such Person for the payments actually
made and waive any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate
in any claim or remedy of such Person.


 


Article
IX


 


Section
9.1.          Competition and Corporate Opportunities.


 


(A)         Nothing
contained in this Amended and Restated Certificate of Incorporation or in any other agreement delivered pursuant hereto or thereto
shall be construed to create any agency relationship among the stockholders.


 


(B)        
(i) Members of the Board (who are not employees, consultants or officers of the Corporation) and (ii) stockholders of the Corporation,
solely by virtue of each such stockholder’s status as a stockholder of the Corporation, ((i) and (ii) being referred to,
collectively, as “Identified Persons” and each, individually, as an “Identified Person”)
shall, to the fullest extent permitted by law, have no duty to refrain from, directly or indirectly, (1) engaging in the same
or similar activities or lines of business in which the Corporation or any of its Affiliates, directly or indirectly, now engages
or may engage or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the fullest extent permitted
by law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for
breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest
extent permitted by law, the Corporation, pursuant to Section 122(17) of the DGCL hereby renounces any interest or expectancy in,
or right to be offered an opportunity to participate in, any potential transaction or business opportunity for an Identified Person
and the Corporation or any of its Affiliates, except as provided in Section 9.1(C) of this Article IX. Subject
to Section 9.1(C) of this Article IX, in the event that any Identified Person acquires knowledge of a potential
transaction or other business opportunity that may be a corporate opportunity for itself, herself or himself and the Corporation
or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no duty to communicate or
offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted
by law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary
duty as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues
or acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another
Person.


 




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(C)         Notwithstanding
Section 9.1(B), the Corporation does not renounce its interest in any corporate opportunity offered to any Identified
Person if such opportunity is (i) expressly offered to such person solely in his or her capacity as a director, officer, consultant
or employee of the Corporation or (ii) identified by an Identified Person solely through the disclosure of information by or on
behalf of the Corporation.


 


(D)         In
addition to and notwithstanding the foregoing provisions of this Article IX, a corporate opportunity shall not be deemed
to be a potential corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither
financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the Corporation’s
business or is of no practical advantage to the Corporation or (iii) is one in which the Corporation has no interest or reasonable
expectancy.


 


(E)         The
Identified Persons may now own, may continue to own, and from time to time may acquire and own, investments in one or more other
entities (such entities, collectively, “Related Companies”) that are direct competitors of, or that otherwise
may have interests that do or could conflict with those of, the Corporation, any of the stockholders or any of their respective
Affiliates, and (i) the enjoyment, exercise and enforcement of the rights, interests, privileges, powers and benefits granted or
available to the Identified Persons under this Amended and Restated Certificate of Incorporation shall not be in any manner reduced,
diminished, affected or impaired, and the obligations of the Identified Persons under this Amended and Restated Certificate of
Incorporation shall not be in any manner augmented or increased, by reason of any act, circumstance, occurrence or event arising
from or in any respect relating to (x) the ownership by an Identified Person of any interest in any Related Company, (y) the affiliation
of any Related Company with an Identified Person or (z) any action taken or omitted by an Identified Person in respect of any Related
Company, (ii) no Identified Person shall, by reason of such ownership, affiliation or action, become subject to any fiduciary duty
to the Corporation, any of the stockholders or any of their respective Affiliates, (iii) none of the duties imposed on an Identified
Person, whether by contract or law, do or shall limit or impair the right of any Identified Person lawfully to compete with the
Corporation, any of the stockholders or any of their respective Affiliates and (iv) the Identified Persons are not and shall not
be obligated to disclose to the Corporation, any of the stockholders or any of their respective Affiliates any information related
to their respective businesses or opportunities, including acquisition opportunities, or to refrain from or in any respect to be
restricted in competing against the Corporation, any of the stockholders or any of their respective Affiliates in any such business
or as to any such opportunities.


 


(F)         (i)
“Affiliate” means any person who directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person specified; (ii) “Person” shall mean any individual,
corporation, general or limited partnership, limited liability company, joint venture, trust, association or any other entity;
and (iii) “control” (including the correlative meanings of the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.


 




    	 	10	 



     


    




 


Article
X


 


Section
10.1.          DGCL Section 203. The Corporation
hereby expressly elects not to be governed by Section 203 of the DGCL.


 


Section
10.2.          Severability. If any provision or provisions
of this Amended and Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to
any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other
circumstance and of the remaining provisions of this Amended and Restated Certificate of Incorporation (including, without limitation,
each portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such provision held to
be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest
extent permitted by applicable law, in any way be affected or impaired thereby and (ii) to the fullest extent permitted by
applicable law, the provisions of this Amended and Restated Certificate of Incorporation (including, without limitation, each
such portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such provision held to
be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees
and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest
extent permitted by law.


 


Section
10.3.          Forum. Unless the Corporation consents
in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent
permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation,
(ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation
to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or
any director or officer of the Corporation arising pursuant to any provision of the DGCL or this Amended and Restated Certificate
of Incorporation or the Bylaws (as either may be amended and/or restated from time to time) or as to which the DGCL confers jurisdiction
on the Court of Chancery of the State of Delaware, or (iv) any action asserting a claim governed by the internal affairs
doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as
defendants therein. To the fullest extent permitted by law, any person purchasing or otherwise acquiring or holding any interest
in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 10.3.


 


*    *    *    *    *


 




    	 	11	 



     


    

 


IN WITNESS WHEREOF, the
Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by Nicholas Bobrowski, its Chief Financial
Officer, this 4th day of June, 2018.


 


	 	HARVEST OIL & GAS CORP.
	 	 	 
	 	By:	 	
        /s/ Nicholas P. Bobrowski

	 	Name:	 	Nicholas P. Bobrowski
	 	Title:	 	Vice President, Chief Financial Officer and Secretary


 


[Signature Page to Amended and Restated Certificate
of Incorporation]