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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MILLER EXPLORATION COMPANY
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE NO. 38-3379776
(State of Incorporation or Organization) (IRS Employer
Identification No.)
3104 LOGAN VALLEY ROAD
TRAVERSE CITY, MICHIGAN 49685-0348
(Address of Principal Executive Offices) (Zip Code)
Securities Act registration statement file number to which this form
relates: 333-40383
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock
(Title of Class)
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On November 17, 1997, the Board of Directors of Miller
Exploration Company (the "COMPANY") adopted a resolution to offer shares of
the Company's common stock, $.01 par value per share ("COMMON STOCK"). The
number of shares offered, the offering price per share and the maximum
offering amount will be set forth in the Company's final registration
statement on Form S-1.
A. DESCRIPTION OF COMMON STOCK
The holders of Common Stock are entitled to one vote for each
share held of record on all matters submitted to the stockholders. The
Certificate of Incorporation of the Company does not allow the stockholders
to take action by less than unanimous consent. Each share of Common Stock
is entitled to participate equally in dividends, if, as and when declared
by the Company's Board of Directors, and in the distribution of assets in
the event of liquidation, subject in all cases to any prior rights of
outstanding shares of preferred stock. In addition, Delaware law limits
the circumstances under which the Company can pay dividends or make other
distributions to its stockholders. The Company has never paid cash
dividends on its Common Stock. The shares of Common Stock have no
preemptive or conversion rights, redemption rights, or sinking fund
provisions. The outstanding shares of Common Stock are, and the shares of
Common Stock offered hereby upon issuance and sale will be, duly
authorized, validly issued, fully paid and nonassessable.
In the case of any liquidation, dissolution or winding up of the
affairs of the Company, holders of Common Stock would be entitled to
receive, pro rata, any assets distributable to common stockholders in
respect of the number of shares held by them. The liquidation rights of
Common Stock would be subject to the rights of holders of any preferred
stock which could be issued by the Company in the future.
B. OTHER PROVISIONS AFFECTING CONTROL OF THE COMPANY
Certain provisions of the Company's Certificate of Incorporation,
Bylaws and other plans may affect control of the Company. The following
provisions may have an anti-takeover impact and may make tender offers,
proxy contests and certain mergers more difficult to consummate.
1. PROVISIONS REGARDING THE BOARD OF DIRECTORS
(a) CLASSIFIED BOARD. The Company's Certificate of
Incorporation classifies the Company's Board of Directors into
three classes serving staggered, three-year terms.
Classification of the Board could have the effect of extending
the time during which the existing Board of Directors could
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control the operating policies of the Company even though opposed
by the holders of a majority of the outstanding shares of the
Common Stock.
(b) NOMINATION OF DIRECTORS. Under the Company's
Certificate of Incorporation, all nominations for directors by
stockholders are required to be delivered to the Company in
writing at least 120 days prior to the date of an annual meeting
of stockholders or, in the case of a special meeting of
stockholders at which a director or directors would be elected,
at least seven days after the notice of the special meeting. A
nomination that is not received prior to these deadlines would
not be placed on the ballot. The Board believes that advance
notice of nominations by stockholders would afford a meaningful
opportunity to consider the qualifications of the proposed
nominees and, to the extent deemed necessary or desirable by the
Board of Directors, would provide an opportunity to inform
stockholders about such qualifications. Although this nomination
procedure would not give the Board of Directors any power to
approve or disapprove stockholder nominations for the election of
directors, the nomination procedure could have the effect of
precluding a nomination for the election of directors at a
particular meeting if the proper procedures were not followed.
The Board of Directors of the Company has adopted a policy
providing that directors are expected to maintain, directly or
indirectly, a minimum investment in the Company of approximately
$100,000.
(c) REMOVAL OF DIRECTORS. The Company's Certificate of
Incorporation does not provide for cumulative voting. Under the
Company's Certificate of Incorporation, subject to the rights of
any series of preferred stock then outstanding, any director
could be removed from office, but only for cause, and only by
stockholder action. Generally, the vote for removal would
require the affirmative vote of a majority of shares entitled to
vote at an election of directors. "Cause" for removal could only
be present in the circumstances specified in the Company's
Certificate of Incorporation. "Cause" is present when: (i) the
director whose removal is proposed has been convicted of a felony
by a court of competent jurisdiction and such conviction is no
longer subject to direct appeal; (ii) the director has been
adjudicated by a court of competent jurisdiction to be liable for
negligence, or misconduct, in the performance of such person's
duty to the Company in a matter of substantial importance to the
Company and such adjudication is no longer subject to a direct
appeal; (iii) the director has become mentally incompetent,
whether or not so adjudicated, which mental incompetency directly
affects such person's ability as a director of the Company; or
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(iv) the director's actions or failure to act have been in
derogation of the director's duties, as provided in the Company's
Bylaws or otherwise provided by law. Any proposal for removal
pursuant to clauses (iii) or (iv) that is initiated by the Board
of Directors for submission to the stockholders would require the
affirmative vote of at least two-thirds of the total number of
directors then in office, excluding the director who is the
subject of the removal action and who shall not be entitled to
vote thereon.
(d) QUALIFICATION OF DIRECTORS. Under the Company's
Certificate of Incorporation, no person who has asserted or
asserts any "Claim" (defined below) against the Company or any
subsidiary (a "Plaintiff"), and no person who is or becomes
associated or affiliated with any Plaintiff (a "Related Person"),
would be eligible to be elected or to serve as a director until
the Claim is "Finally Resolved" (defined below). A director who
is validly nominated and elected as a director and who thereafter
becomes a Plaintiff or Related Person would continue as a
director for the remainder of the term for which the director was
elected or until the director's resignation or removal. A
director who is or becomes a Plaintiff or a Related Person would
be required to either (i) promptly take all steps necessary to
cause the director to be neither a Plaintiff nor Related Person
or (ii) if the director cannot do so and the Claim has not been
Finally Resolved within the "Resolution Period," resign as a
director, effective immediately, at or before the end of such
Resolution Period.
A "Claim" means any claim, cross-claim, counterclaim or
third-party claim pled in any action, suit or proceeding before
any court, governmental agency or instrumentality, arbitrator or
similar body or authority. However, certain claims are excluded,
including: (i) one which, when aggregated with all other claims
asserted by the Plaintiff or any Related Person of such Plaintiff
against the Company or any subsidiary that have not been Finally
Resolved, could not, if decided adversely to the Company or a
subsidiary, along with all other aggregated claims, cross-claims,
counterclaims and third-party claims, result in liability in
excess of 10 percent of the consolidated current assets of the
Company as of the most recent quarter or render the Company
insolvent; (ii) one arising pursuant to a contract between the
Company and the pertinent Plaintiff or Related Person that was
approved by a majority of the Continuing Directors, including
without limitation, claims arising under any indemnity or
employment contract; and (iii) claims asserted in the right of
the Company (i.e., derivative actions).
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The term "Finally Resolved" means that a final order has
been rendered with respect to the Claim and all available appeals
from such order have been exhausted or the time for seeking such
review has expired. The term "Resolution Period" means the
30-day period beginning on the earlier of (i) the date on which a
director of the Company notifies the Board that the director has
become a Plaintiff or Related Person or (ii) the date on which
the Board determines that a director has become a Plaintiff or
Related Person. However, the Board could (but would not be
required to) extend a Resolution Period by up to 15 days if the
director establishes to the Board's satisfaction a reasonable
likelihood that the Claim would be Finally Resolved or such
director would cease to be both a Plaintiff and a Related Person
during that extra 15-day period.
The Board of Directors would not nominate any person for
election as a director unless (i) the prospective nominee has
provided the Board with (x) all information necessary or
appropriate to enable the Board to determine whether the nominee
is a Plaintiff or a Related Person and (y) a signed statement
that the prospective nominee is not aware of any reason not
disclosed to the Board of Directors why the prospective nominee
would or might be considered a Plaintiff or Related Person and
(ii) after receipt of the items the Board determines that the
prospective nominee is not a Plaintiff or Related Person.
Any stockholder who is uncertain whether any person the
stockholder desires to nominate for election as a director is a
Plaintiff or Related Person could request a determination from
the Board concerning that matter, upon delivering to the Board of
Directors certain information and other items and complying with
certain deadlines. Within 10 days after receiving a properly
submitted request (or, if it is impossible or impracticable to do
so during such period, as soon as practicable thereafter), the
Board would be required to consider the request and determine
whether or not the candidate is a Plaintiff or Related Person who
could not be nominated for election to the Board of Directors.
If a candidate who was the subject of a proper and timely
submitted request was determined not to be a Plaintiff or Related
Person and the request was submitted at least five days in
advance of the last date on which the requesting stockholder
otherwise would have been entitled to give notice of intent to
nominate the candidate, then the Board of Director's
determination would operate as a waiver of the time limits
otherwise applicable to the giving of such notice of intent to
the extent, if any, necessary to afford the stockholder a period
of five days after receipt of the Board's notice within which to
give notice of intent to nominate the candidate.
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If the Board determined that the candidate was a Plaintiff
or Related Person and the request was submitted at least five
days in advance of the last date on which the requesting
stockholder otherwise would have been entitled to give notice of
intent to nominate, then the Board of Director's determination
would operate as a waiver of the time limits otherwise applicable
to the giving of such notice of intent to the extent, if any,
necessary to afford the stockholder a period of five days after
receipt of the Board of Director's notice within which to give
notice of intent to nominate the candidate.
Whenever any stockholder was afforded an additional time
period within which to give notice of intention to nominate, the
Board of Directors may afford the other stockholders of the
Company a comparable additional period of time within which to
give such notice.
While the Board of Directors believes that the provisions
regarding director nominations ensures that directors and
nominees for election as directors will not have significant
conflicts of interest with the Company, the provisions also may
have the effect of making stockholder nominations of director
candidates more difficult.
2. BOARD EVALUATION OF CERTAIN OFFERS. The Company's
Certificate of Incorporation provides that the Board of Directors will
not initiate, approve, adopt or recommend any offer of any person or
entity (other than the Company) to make a tender or exchange offer for
any Common Stock or preferred stock, to merge or consolidate the
Company with any other entity or to purchase or acquire all or
substantially all of the Company's assets, unless and until the Board
of Directors of the Company has evaluated the offer and determined
that it would be in compliance with all applicable laws and that the
offer is in the best interests of the Company and its stockholders.
In doing so, the Board of Directors could rely on an opinion of legal
counsel who is independent from the offeror, and/or may test the
legality of the proposed offer before any court or agency that may
have appropriate jurisdiction over the matter.
In making its determination as to whether the transaction would
be in the best interests of the Company and its stockholders, the
Board of Directors would be required to consider all factors it deemed
relevant, including but not limited to: (i) the adequacy and fairness
of the consideration to be received by the Company and/or its
stockholders, considering historical trading prices of Common Stock,
the price that could be achieved in a negotiated sale of the Company
as a whole, past offers to other corporations and the future prospects
of the Company; (ii) the possible social and economic impact of the
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proposed transaction on the Company, its employees, customers and
suppliers; (iii) the potential social and economic impact of the
proposed transaction on the communities in which the Company and its
subsidiaries operate or are located; (iv) the business and financial
condition and earnings prospects of the offering party; (v) the
competence, experience and integrity of the offering party and its
management; and (vi) the intentions of the offering party regarding
the use of the assets of the Company to finance the transaction.
3. SUPERMAJORITY VOTE PROVISIONS. The Company's Certificate of
Incorporation contains "supermajority" vote requirements for certain
business combinations. In addition to any vote required by law or
other provisions of the Certificate of Incorporation, the affirmative
vote of not less than 80 percent of the outstanding shares of "voting
stock" (which is defined as all shares of the Company stock that are
entitled to vote generally in the election of directors, voting as a
single class) would be required for the approval of certain "business
combinations" between the Company or a subsidiary and any "interested
stockholder."
A "business combination" is generally defined as including
mergers, sales of all or substantially all of the assets of the
Company and certain other transactions. An "interested stockholder"
is defined as a person (other than the Company, its majority-owned
subsidiaries or their employee benefit plans), who, alone or together
with affiliated persons, beneficially owns 10 percent or more of the
voting stock of the Company, as well as certain other persons that are
affiliated with an interested stockholder.
These requirements would not apply when the transaction was
approved by a majority of the "continuing directors," which are
directors who are not affiliated with an interested stockholder and
who were either (i) elected to the Board of Directors of the Company
prior to the time that the interested stockholder became an interested
stockholder or (ii) designated, before their initial election as
directors, as continuing directors by a majority of the then-
continuing directors. The term excludes, however, certain persons who
became directors as a result of election contests within the meaning
of Rule 14a-11 under the Exchange Act of 1934, as amended, or other
types of proxy solicitations.
In addition, the Certificate of Incorporation provides that, in
addition to any vote required by law or other provisions of the
Certificate of Incorporation, the affirmative vote of at least 80
percent of the shares held by persons who are not interested
stockholders would be required to approve business combinations of the
Company or a majority owned subsidiary with any interested
stockholder. This requirement would not apply if (i) the business
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combination was approved by a majority of the continuing directors or
(ii) certain other detailed conditions are satisfied.
4. RESTRICTIONS ON AMENDMENTS TO CERTIFICATE OF INCORPORATION
AND BYLAWS OF THE COMPANY. Several provisions of the Company's
Certificate of Incorporation require a greater-than-majority vote to
be amended. Specifically, Article XV provides that no amendment to
the Certificate of Incorporation may alter, modify or repeal any or
all of the provisions of Article XII (supermajority vote/fair price
requirement for certain business combinations) or Article XV(A),
unless the amendment is adopted by the affirmative vote of not less
than 80 percent of the outstanding shares of voting stock held by
stockholders who are not interested stockholders.
Also, Article XV(B) of the Company's Certificate of Incorporation
provides that no amendment may alter, modify or repeal any or all of
the provisions of Articles VII (powers of the Board of Directors),
VIII (Board of Directors classification, nomination, qualification,
etc.), X (supermajority vote required for certain business
combinations), XI (non-stockholder constituency provision) or XIII
(limitation of certain director liability), and the stockholders would
not have the right to alter, modify or repeal any or all provisions of
the Company's Bylaws, unless such amendment, alteration, modification
or repeal is adopted by the affirmative vote of the holders of not
less than 80 percent of the outstanding shares of voting stock.
However, the provisions of Article XV(B) would not apply to, and such
80 percent vote would not be required for, any amendment, alteration,
modification or repeal which has first been approved by (i) the
affirmative vote of 80 percent of the entire Board of Directors,
including the affirmative vote of at least one director of each class
of the Board of Directors and (ii) the affirmative vote of two-thirds
of the continuing directors.
5. DELAWARE LAW PROVISIONS. The Company is a Delaware
corporation and is subject to Section 203 of the Delaware General
Corporation Law. Generally, Section 203 prohibits the Company from
engaging in a "business combination" (as defined in Section 203 of the
Delaware General Corporation Law) with an "interested stockholder"
(defined generally as a person owning 15 percent or more of the
Company's outstanding voting stock) for three years following the date
that person becomes an interested stockholder, unless (i) before that
person became an interested stockholder, the Company's Board of
Directors either approved the transaction which resulted in the
stockholder becoming an interested stockholder or approved the
business combination; (ii) upon completion of the transaction that
resulted in the stockholder becoming an interested stockholder, the
interested stockholder owns at least 85 percent of the voting stock
outstanding at the time the transaction commenced (excluding stock
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held by directors who are also officers of the Company and by employee
stock plans that do not provide employees with the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer); or (iii) following the
transaction in which that person became an interested stockholder, the
business combination is approved by the Company's Board of Directors
and authorized at a meeting of stockholders by the affirmative vote of
the holders of at least two-thirds of the outstanding voting stock not
owned by the interested stockholder.
Section 203 restrictions also do not apply to certain business
combinations proposed prior to the consummation or abandonment of and
subsequent to the announcement or notification of one of certain
extraordinary transactions involving the Company and a person who was
either not an interested stockholder during the previous three years
or who became an interested stockholder with the approval of the
Company's Board of Directors. The extraordinary transaction must be
approved or not opposed by a majority of the Board of Directors who
were directors before any person became an interested stockholder in
the previous three years or who were recommended for election or
elected to succeed such directors by a majority of such directors then
in office.
Item 2. EXHIBITS.
EXHIBIT NO. DOCUMENT
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1.1 Underwriting Agreement. Previously filed as Exhibit 1.1
to the Registration Statement on Form S-1, Amendment No. 3
(Registration No. 333-40383) filed on January 9, 1998, and
incorporated herein by reference.
2.1 Exchange and Combination Agreement. Previously filed
as Exhibit 2.1 to the Registration Statement on Form
S-1 (Registration No. 333-40383) filed on November 17,
1997, and incorporated herein by reference.
2.2(a) Letter Agreement. Previously filed as Exhibit 2.2(a)
to the Registration Statement on Form S-1 (Registration
No. 333-40383) filed on November 17, 1997, and
incorporated herein by reference.
2.2(b) Letter Agreement. Previously filed as Exhibit 2.2(b)
to the Registration Statement on Form S-1 (Registration
No. 333-40383) filed on November 17, 1997, and
incorporated herein by reference.
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2.2(c) Letter Agreement. Previously filed as Exhibit 2.2(c)
to the Registration Statement on Form S-1 (Registration
No. 333-40383) filed on November 17, 1997, and
incorporated herein by reference.
3.1 Certificate of Incorporation of the Company.
Previously filed as Exhibit 3.1 to the Registration
Statement on Form S-1 (Registration No. 333-40383)
filed on November 17, 1997, and incorporated herein by
reference.
3.2 Bylaws of the Company. Previously filed as Exhibit 3.2
to the Registration Statement on Form S-1 (Registration
No. 333-40383) filed on November 17, 1997, and
incorporated herein by reference.
4.1 Certificate of Incorporation. See Exhibit 3.1.
4.2 Bylaws. See Exhibit 3.2.
4.3 Form of Specimen Stock Certificate. Previously filed as
Exhibit 4.3 to the Registration Statement on Form S-1,
Amendment No. 1 (Registration No. 333-40383) filed on
December 5, 1997, and incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
MILLER EXPLORATION COMPANY
(Registrant)
Dated: January 27, 1998 By /S/ KELLY E. MILLER
Kelly E. Miller
Chief Executive Officer and President
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EXHIBIT INDEX
EXHIBIT DOCUMENT
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1.1 Underwriting Agreement. Previously filed as Exhibit 1.1
to the Registration Statement on Form S-1, Amendment No. 3
(Registration No. 333-40383) filed on January 9, 1998, and
incorporated herein by reference.
2.1 Exchange and Combination Agreement. Previously filed as
Exhibit 2.1 to the Registration Statement on Form S-1
(Registration No. 333-40383) filed on November 17, 1997, and
incorporated herein by reference.
2.2(a) Letter Agreement. Previously filed as Exhibit 2.2(a) to the
Registration Statement on Form S-1 (Registration No. 333-
40383) filed on November 17, 1997, and incorporated herein
by reference.
2.2(b) Letter Agreement. Previously filed as Exhibit 2.2(b) to the
Registration Statement on Form S-1 (Registration No. 333-
40383) filed on November 17, 1997, and incorporated herein
by reference.
2.2(c) Letter Agreement. Previously filed as Exhibit 2.2(c) to the
Registration Statement on Form S-1 (Registration No. 333-
40383) filed on November 17, 1997, and incorporated herein
by reference.
3.1 Certificate of Incorporation of the Company. Previously
filed as Exhibit 3.1 to the Registration Statement on Form
S-1 (Registration No. 333-40383) filed on November 17, 1997,
and incorporated herein by reference.
3.2 Bylaws of the Company. Previously filed as Exhibit 3.2 to
the Registration Statement on Form S-1 (Registration No.
333-40383) filed on November 17, 1997, and incorporated
herein by reference.
4.1 Certificate of Incorporation. See Exhibit 3.1.
4.2 Bylaws. See Exhibit 3.2.
4.3 Form of Specimen Stock Certificate. Previously filed as
Exhibit 4.3 to the Registration Statement on Form S-1,
Amendment No. 1 (Registration No. 333-40383) filed on
December 5, 1997, and incorporated herein by reference.
