EX-10.1



 


Exhibit 10.1



AMENDED AND RESTATED



CERTIFICATE OF INCORPORATION



OF



CVR ENERGY, INC.



     CVR Energy, Inc., a corporation organized and existing under the laws of
the State of Delaware (the “Corporation”), hereby certifies as follows:


     (a)  The name of the Corporation is CVR Energy, Inc. The Corporation filed
its original Certification of Incorporation with the Secretary of State of the
State of Delaware pursuant to Section 102 of the Delaware General Corporation
Law, as amended, (the “DGCL”) on September 25, 2006.


     (b)  This Amended and Restated Certification of Incorporation, which amends
and restates the original Certificate of Incorporation in its entirety, was
duly adopted in accordance with Sections 242 and 245 of the DGCL.


     (c)  The Amended and Restated Certificate of Incorporation of the
Corporation shall read in its entirety:


ARTICLE I



     Section 1.1.
Name. The name of the Corporation is CVR Energy, Inc.


ARTICLE II



     Section 2.1
Registered Office and Registered Agent. The address of the
Corporation’s registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle,
Delaware 19801. The name of its 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 be organized under the DGCL.


ARTICLE IV



     Section 4.1
Capitalization. The total number of shares of all classes of
stock that the Corporation is authorized to issue is 400,000,000 shares,
consisting of (i) 350,000,000 shares of common stock, par value $0.01 per share
(the “Common Stock”) and (ii) 50,000,000 shares of preferred stock, par value
$0.01 per share (the “Preferred Stock”). The number of authorized shares of
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 the Preferred Stock voting separately as
a class shall be required therefor.


     Section 4.2
Preferred Stock. The Board of Directors is hereby expressly
authorized, by resolution or resolutions, 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 preferences and relative, participating,
optional or other special rights, if any, and any qualifications, limitations
or restrictions thereof, of the shares of such series. 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.


     The powers, preferences and rights of any series of Preferred Stock may
include, without limitation, (i) the distinctive serial designation of such
series which shall distinguish it from other series, (ii) the number of shares
included in such series, (iii) whether dividends will be payable to the holders
of the shares of such series and, if so, the basis on which such holders shall
be entitled to receive dividends, the form of such dividend, any conditions on
which such dividends shall be payable and the date or dates, if any, on which
such dividends shall be payable, (iv) whether dividends on the shares of such
series shall be cumulative and, if so, the date or dates or method of
determining the date or dates from which dividends on the shares of such series
shall be cumulative, (v) the amount or amounts, if any, which shall be payable
out of the assets of the Corporation to the holders of the shares of such
series upon the voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation, and the relative rights of priority, if any, of payment of
the shares of such series; (vi) the price or prices (in cash, securities or
other property or a combination thereof) at which, the period or periods within
which and the terms and conditions upon which the shares of such series may be
redeemed, in whole or in part, at the option of the Corporation or at the
option of the holder or holders thereof or upon the happening of a specified
event or events, (vii) the obligation, if any, of the Corporation to purchase
or redeem shares of such series pursuant to a sinking fund or otherwise, (viii)
whether or not the shares of such series shall be convertible or exchangeable,
at any time or times at the option of the holder or holders thereof or at the
option of the Corporation or upon the happening of a specified event of events,
into shares of any other class or classes or any other series of the same or
any other class or classes of stock of the Corporation or any other series or
property of the Corporation or any other entity, and the price or prices (in
cash, securities or other property or a combination thereof) or rate or rates
of conversion or exchange and any adjustments applicable thereto, (ix) whether
or not the holders of the shares of such series shall have voting rights, in
addition to the voting rights provided by law, and if so the terms of such
voting rights, and (x) any other relative rights, powers, preferences and
limitations of this series. For all purposes, this Certificate of
Incorporation shall include each certificate of designations (if any) setting
forth the terms of a series of Preferred Stock.


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     Section 4.3
Common Stock. (a) Dividends. Subject to the preferential
rights, if any, of the holders of Preferred Stock, the holders of Common Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of the assets of the Corporation which are by law available
therefor, dividends payable either in cash, in property or in shares of capital
stock.


     (b) Voting Rights. At every annual or special meeting of stockholders of
the Corporation, every share of Common Stock shall entitle the holder thereof
to one vote, in person or by proxy, for each share of Common Stock held of
record on the books of the Corporation.


     (c) 
Liquidation, Dissolution or Winding Up. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation (a “Liquidation”), after payment or provision for payment of the
debts and other liabilities of the Corporation and of the preferential amounts,
if any, to which the holders of Preferred Stock shall be entitled, the holders
of all outstanding shares of Common Stock shall be entitled to receive the
remaining assets of the Corporation available for distribution to holders of
Common Stock ratably in proportion to the number of shares held by each such
stockholder.



     Section 4.4
Stock Split. Effective upon the filing of this Amended and
Restated Certificate of Incorporation with the Secretary of State of the State
of Delaware, a 628,667.20-for-1 stock split of the Corporation’s Common Stock
shall become effective, pursuant to which each share of Common Stock
outstanding or held in treasury immediately prior to such time shall
automatically and without any action on the part of the holders thereof be
reclassified and split into and thereafter represent 628,667.20 shares of
Common Stock (the “Stock Split”). No fractional shares of Common Stock shall
be issued upon the Stock Split. In lieu of any fractional shares of Common
Stock to which the stockholder would otherwise be entitled upon the Stock
Split, the Corporation shall pay cash equal to such fraction multiplied by the
then fair market value of the Common Stock as determined by the Board of
Directors. All certificates representing shares of Common Stock outstanding
immediately prior to the filing of this Amended and Restated Certificate of
Incorporation shall immediately after the filing of this Amended and Restated
Certificate of Incorporation represent instead the number of shares of Common
Stock as provided above. Notwithstanding the foregoing, any holder of Common
Stock may (but shall not be required to) surrender his, her or its stock
certificate or certificates to the Corporation, and upon such surrender the
Corporation will issue a certificate for the correct number of shares of Common
Stock to which the holder is entitled under the provisions of this Amended and
Restated Certificate of Incorporation.


ARTICLE V



     Section 5.1
Board of Directors. (a) Composition. The stockholders shall
elect a board of directors (the “Board of Directors”) to oversee the
Corporation’s business. The number of directors shall be fixed only by
resolution adopted from time to time by the affirmative vote of a majority of
the entire Board of Directors then in office.


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     (b) 
Powers. In addition to the powers and authority expressly conferred
upon them by statute or by this Certificate of Incorporation or the by-laws of
the Corporation, the directors are hereby empowered to exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation,
subject to the provisions of the statutes of the State of Delaware, this
Certificate of Incorporation and the by-laws of the Corporation.


     (c) 
Removal. Any director or the entire Board of Directors may be
removed with or without cause by the affirmative vote of the majority of all
shares then entitled to vote at an election of directors.


     (d) 
Vacancies. Any newly created directorship on the Board of Directors
that results from an increase in the authorized number of directors and any
vacancy resulting from the death, disability, resignation, disqualification, or
removal of any director or from any other cause shall be filled only by the
affirmative vote of a majority of the Board of Directors then in office, even
if less than a quorum, or by a sole remaining director. Any director elected
to fill a vacancy not resulting from an increase in the authorized number of
directors shall have the same remaining term as that of his or her predecessor.


     (e) 
Voting Rights of Preferred Stock. 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 Amended and Restated Certificate of Incorporation
(including any certificate of designations relating to any series of Preferred
Stock) applicable thereto.


ARTICLE VI



     Section 6.1
Indemnification of Directors, Officers, Employees or Agents.
Each person who was or is made a party or is threatened to be made a party to
or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative in nature, including any appeal, by reason of
the fact that such person (or a person of whom such person is the legal
representative) is or was a director, officer, employee or agent of the
Corporation or, while a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, trustee, partner, member, employee, other fiduciary or agent of
another corporation or of a partnership, joint venture, limited liability
company, trust or other enterprise, including service with respect to employee
benefit plans or public service or charitable organizations, whether the basis
of such claim or proceeding is alleged actions or omissions in any such
capacity or in any other capacity while serving as a director, officer,
trustee, partner, member, employee, other fiduciary or agent thereof, may be
indemnified and held harmless by the Corporation to the fullest extent
permitted by the DGCL, against all expense and liability (including without
limitation, attorneys’ fees and disbursements, court costs, damages, fines,
amounts paid or to be paid in settlement, and excise taxes or penalties)
reasonably incurred or suffered by such person in connection therewith and such
indemnification may continue as to a person who has ceased to be a director,
officer, employee or agent of the Corporation and may inure to the benefit of
such person’s heirs,


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executors and administrators. The Corporation, by provisions in its
By-Laws or by agreement, may accord to any current or former director, officer,
employee or agent of the Corporation the right to, or regulate the manner of
providing to any current or former director, officer, employee or agent of the
Corporation, indemnification to the fullest extent permitted by the DGCL.


     Section 6.2
Advance of Expenses. The Corporation to the fullest extent
permitted by the DGCL may advance to any person who is or was a director,
officer, employee or agent of the Corporation (or to the legal representative
thereof) any and all expenses (including, without limitation, attorneys fees
and disbursements and court costs) reasonably incurred by such person in
respect of any proceeding to which such person (or a person of whom such person
is a legal representative) is made a party or threatened to be made a party by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation or, while a director, officer, employee or agent of
the Corporation, is or was serving at the request of the Corporation as a
director, officer, trustee, partner, member, employee, other fiduciary or agent
of another corporation or a partnership, joint venture, limited liability
company, trust or other enterprise, including service with respect to employee
benefits plans or public service or charitable organizations; provided,
however, that, to the extent the DGCL requires, the payment of such expenses in
advance of the final disposition of the proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such person,
to repay all amounts so advanced if it shall ultimately be determined that such
person is not entitled to be indemnified against such expense under this
Article VI or otherwise. The Corporation by provisions in its By-Laws or by
agreement may accord any such person the right to, or regulate the manner of
providing to any such person, such advancement of expenses to the fullest
extent permitted by the DGCL.


     Section 6.3
Non-Exclusivity of Rights. Any right to indemnification and
advancement of expenses conferred as permitted by this Article VI shall not be
deemed exclusive of any other right which any person may have or hereafter
acquire under any statute (including the DGCL), any other provision of this
Amended and Restated Certificate of Incorporation or the By-Laws of the
Corporation, any agreement, any vote of stockholders or the Board of Directors
or otherwise.


ARTICLE VII



     Section 7.1.
Insurance. The Corporation may purchase and maintain
insurance to protect itself and any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of,
or to represent the interests of, the Corporation or another corporation or a
partnership, joint venture, limited liability company or trust or other
enterprise, against any liability asserted against any expense, liability or
loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the DGCL.


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ARTICLE VIII



     Section 8.1
Limited Liability of Directors. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director’s duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit.


     If the DGCL is amended to authorize corporation action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended. Any repeal or modification of
this Article VIII by the stockholders of the Corporation or otherwise shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.


ARTICLE IX


     Section 9.1
Action by Written Consent. Any action required or permitted
to be taken at any annual or special meeting of stockholders of the Corporation
may be effected only upon the vote of the stockholders at an annual or special
meeting duly called and may not be effected by written consent of the
stockholders, provided that such actions may be effected by written consent of
the stockholders if Goldman, Sachs & Co., Kelso & Company and their respective
affiliates (collectively, the “Sponsors”) collectively beneficially own more
than 35.0% of the outstanding shares of Common Stock.


ARTICLE X



     Section 10.1
Business Opportunities. To the fullest extent permitted by
applicable law, the Corporation, on behalf of itself and its subsidiaries,
renounces any interest or expectancy of the Corporation and its subsidiaries
in, or in being offered an opportunity to participate in, business
opportunities that are from time to time presented to any of the Sponsors or
any of their respective officers, directors, agents, stockholders, members,
partners, affiliates and subsidiaries (other than the Corporation and its
subsidiaries), even if the opportunity is one that the Corporation or its
subsidiaries might reasonably be deemed to have pursued or had the ability or
desire to pursue if granted the opportunity to do so and such person shall have
no duty to communicate or offer such corporate opportunity to the Corporation
and, to the fullest extent permitted by applicable law, shall not be liable to
the Corporation or any of its subsidiaries for breach of any fiduciary or other
duty, as a director or officer or otherwise, by reason of the fact that such
person pursues or acquires such business opportunity, directs such business
opportunity to another person or fails to present such business opportunity, or
information regarding such business opportunity, to the Corporation or its
subsidiaries unless, in the case of any such person who is a director or
officer of the Corporation, such business opportunity is expressly offered to
such director or officer in writing solely in his or her capacity as a director
or officer of the Corporation. Any person purchasing or otherwise acquiring
any interest in any shares of stock of the Corporation shall be deemed to have
notice of and consented to the


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provisions of this Article X. Neither the alteration, amendment or repeal
of this Article X nor the adoption of any provision of this Amended and
Restated Certificate of Incorporation inconsistent with this Article X shall
eliminate or reduce the effect of this Article X in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article X,
would accrue or arise, prior to such alteration, amendment, repeal or adoption.


ARTICLE XI



     Section 11.1
Section 203 of the DGCL. Section 203 of the DGCL shall not
apply to the Corporation.


ARTICLE XII



     Section 12.1
By-Laws. The Board of Directors is expressly authorized to
adopt, amend, or repeal the By-Laws of the Corporation 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 of
the Corporation.


ARTICLE XIII



     Section 13.1
Reservation of Right to Amend Certificate of Incorporation.
The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.


ARTICLE XIV



     Section 14.1
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 in any way be affected or impaired thereby and (ii) to the fullest
extent possible, 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).


* * *



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     IN
WITNESS WHEREOF, I have hereunto set my hand this
16th day of October,
2007, and I affirm that the foregoing certificate is my act and deed and that
the facts stated therein are true.


CVR Energy, Inc.



By: /s/ Edmund S. Gross                                                  

     Name: Edmund S. Gross

     Title: Senior Vice President, General Counsel

               and Secretary




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