<PAGE>
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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 1O-QSB/A
(Amendment No. 1)
[X] Quarterly report under Section 13 or 15(d) of the
Securities Exchange Act of 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997
[_] Transition report under Section 13 or 15(d) of the Exchange Act
For the transition period from ___________ to ___________
Commission file number 1-9933
AMERAC ENERGY CORPORATION
(Exact Name of Small Business Issuer as Specified in Its Charter)
DELAWARE 75-2181442
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1201 LOUISIANA, SUITE 3350
HOUSTON, TEXAS 77002-5609
(Address of Principal Executive Offices)
(713) 308-5250
(Issuer's Telephone Number, Including Area Code)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes [X] No
The number of shares of Common Stock, $0.05 par value, outstanding on October
31, 1997 was 3,891,981
Transitional Small Business Disclosure Format (check one):
Yes [_] No [X]
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<PAGE>
AMERAC ENERGY CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
------------- ------------
(UNAUDITED)
ASSETS
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents..................................... $ 53,000 $ 712,000
Receivables
Trade and other, net of allowance for bad debts of $32,000.. 338,000 327,000
Gas and oil receivable...................................... 1,001,000 1,451,000
Prepaid expenses............................................ 146,000 146,000
------------- -------------
Total current assets...................................... 1,538,000 2,636,000
------------- -------------
PROPERTY AND EQUIPMENT
Oil and gas properties at cost.............................. 34,313,000 32,290,000
Less accumulated depreciation, depletion and amortization... (16,593,000) (12,949,000)
------------- -------------
Net oil and gas properties................................ 17,720,000 19,341,000
OTHER ASSETS................................................... 335,000 395,000
------------- -------------
TOTAL ASSETS................................................... $ 19,593,000 $ 22,372,000
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Trade payables............................................... $ 314,000 $ 199,000
Accrued liabilities.......................................... 288,000 527,000
Current portion of long-term debt............................ 579,000 ----
Obligation under gas contract................................ ---- 370,000
------------- -------------
Total current liabilities................................ 1,181,000 1,096,000
------------- -------------
LONG-TERM LIABILITIES
Notes payable banks (less current portion).................. 7,250,000 7,704,000
Other long-term liabilities................................. 8,000 140,000
------------- -------------
Total long-term liabilities............................... 7,258,000 7,844,000
------------- -------------
COMMITMENTS AND CONTINGENT LIABILITIES (see Note 4)
STOCKHOLDERS' EQUITY
Common stock, $0.05 par value; authorized - 20,000,000
shares; outstanding -3,891,981 shares at September 30, 1997
and 3,883,526 shares at December 31, 1996................. 195,000 194,000
Additional paid-in capital.................................. 151,181,000 151,104,000
Accumulated deficit......................................... (140,222,000) (137,866,000)
------------- -------------
Total stockholders' equity............................... 11,154,000 13,432,000
------------- -------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY.................. $ 19,593,000 $ 22,372,000
============= =============
</TABLE>
(The accompanying notes are an integral part of these consolidated financial
statements).
1
<PAGE>
AMERAC ENERGY CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
--------------------------- -----------------------
1997 1996 1997 1996
---------- --------- --------- ---------
<S> <C> <C> <C> <C>
REVENUES
Oil, gas and related product sales................... $ 1,889,000 $ 2,584,000 $ 7,206,000 $ 7,432,000
Other income......................................... 2,000 (4,000) 19,000 42,000
----------- ----------- ----------- -----------
Total revenues.................................... 1,891,000 2,580,000 7,225,000 7,474,000
----------- ----------- ----------- -----------
EXPENSES
Lease operating...................................... 658,000 597,000 2,317,000 1,577,000
Exploration expenses, including dry hole costs....... 29,000 22,000 314,000 29,000
Provision for impairment of properties (see Note 2).. 1,573,000 --- 2,269,000 ---
Depreciation, depletion and amortization............. 733,000 699,000 2,144,000 1,693,000
General and administrative........................... 761,000 627,000 1,997,000 1,749,000
(Gain) Loss on sale of oil and gas properties........ ---- ---- ---- (124,000)
Interest............................................. 183,000 245,000 510,000 662,000
----------- ----------- ----------- -----------
Total expenses.................................... 3,937,000 2,190,000 9,551,000 5,586,000
----------- ----------- ----------- -----------
Income (loss)before income taxes..................... (2,046,000) 390,000 (2,326,000) 1,888,000
Provision for federal income taxes................... --- 5,000 30,000 5,000
----------- ----------- ----------- -----------
NET INCOME (LOSS).................................... (2,046,000) 385,000 (2,356,000) 1,883,000
Preferred dividends.................................. ---- (5,023,000) ---- (5,434,000)
----------- ----------- ----------- -----------
INCOME (LOSS) APPLICABLE TO COMMON STOCKHOLDERS...... $(2,046,000) $(4,638,000) $(2,356,000) $(3,551,000)
=========== =========== =========== ===========
INCOME (LOSS) PER COMMON SHARE
(as adjusted, see Note 1).......................... $ (.53) $ (1.64) $ (.61) $ (1.75)
=========== =========== =========== ===========
AVERAGE COMMON SHARES AND EQUIVALENTS
outstanding (as adjusted, see Note 1).............. 3,889,000 2,828,000 3,886,000 2,031,000
=========== =========== =========== ===========
</TABLE>
(The accompanying notes are an integral part of these consolidated
financial statements).
2
<PAGE>
AMERAC ENERGY CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------
1997 1996
-------------- ------------
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES
Net income (loss)............................................ $ (2,356,000) $ 1,883,000
Adjustments needed to reconcile net income to net cash flow
provided by operating activities
Depreciation, depletion and amortization................... 2,144,000 1,693,000
Exploration expenses, including dry holes and impairments.. 2,071,000 29,000
Gain on sale of properties................................. ---- (124,000)
Stock issued for compensation.............................. 50,000 180,000
Recognition of deferred revenue............................ (370,000) (105,000)
Other...................................................... (44,000) ----
Changes in operating assets and liabilities:
Oil and gas receivables and other........................ 438,000 (931,000)
Trade payables........................................... 115,000 72,000
Accrued and other long-term liabilities.................. (372,000) (84,000)
---------- -----------
NET CASH FLOW PROVIDED BY OPERATING ACTIVITIES................ 1,676,000 2,613,000
---------- -----------
CASH FLOW FROM INVESTING ACTIVITIES
Proceeds from sale of assets................................. ---- 1,281,000
Oil and gas acquisitions and expenditures.................... (2,486,000) (12,995,000)
Other........................................................ 19,000 (268,000)
---------- -----------
NET CASH USED FOR INVESTING ACTIVITIES........................ (2,467,000) (11,982,000)
---------- -----------
CASH FLOW FROM FINANCING ACTIVITIES
Bank borrowings, net......................................... 125,000 8,951,000
Sale of common stock......................................... ---- 364,000
Other........................................................ 7,000 10,000
---------- -----------
NET CASH PROVIDED BY FINANCING ACTIVITIES..................... 132,000 9,325,000
---------- -----------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS.......... (659,000) (44,000)
Cash and cash equivalents at beginning of period............. 712,000 144,000
---------- -----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD.................... $ 53,000 $ 100,000
========== ===========
</TABLE>
(The accompanying notes are an integral part of these consolidated financial
statements).
3
<PAGE>
AMERAC ENERGY CORPORATION
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
DECEMBER 31, 1996 TO SEPTEMBER 30, 1997
(UNAUDITED)
<TABLE>
<CAPTION>
COMMON SHARES
($0.05 PAR VALUE) ADDITIONAL
-------------------- PAID-IN ACCUMULATED
SHARES AMOUNT CAPITAL DEFICIT TOTAL
--------- -------- ------------ ------------- -----------
<S> <C> <C> <C> <C> <C>
BALANCE - DECEMBER 31, 1996......... 3,883,526 $194,000 $151,104,000 $(137,866,000) $13,432,000
Stock issued for director's fees.. 8,295 1,000 50,000 ---- 51,000
Options exercised................. 2,667 ---- 7,000 ---- 7,000
Net income........................ ---- ---- ---- (2,356,000) (2,356,000)
Other............................. (2,507) ---- 20,000 ---- 20,000
--------- -------- ------------ ------------- -----------
BALANCE - SEPTEMBER 30, 1997........ 3,891,981 $195,000 $151,181,000 $(140,222,000) $11,154,000
========= ======== ============ ============= ===========
</TABLE>
(The accompanying notes are an integral part of these consolidated financial
statements.)
4
<PAGE>
AMERAC ENERGY CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-QSB of the Securities
and Exchange Commission. In the opinion of management, all normal and recurring
adjustments necessary for a fair presentation of results of operations and
financial position for the interim periods have been included. The results of
operations for the interim periods shown in this report are not necessarily
indicative of results to be expected for the year or any other interim period.
These financial statements and notes should be read in conjunction with Amerac
Energy Corporation's (the "Company") annual report for the year ended December
31, 1996.
Earnings per share and weighted average common shares outstanding for the
three and nine months ended September 30, 1996, have been retroactively restated
to reflect the one for fifteen reverse Common Stock split approved by the
Company's stockholders in November 1996.
Certain prior year amounts have been reclassified to conform with the
current year presentation.
2. IMPAIRMENTS
The Company follows the successful efforts method of accounting for its oil
and gas operations, as prescribed in Statement of Financial Accounting Standards
("SFAS") 19 issued by the Financial Accounting Standards Board. Under the
successful efforts method, costs of productive wells, development dry holes and
productive leases are capitalized and amortized on a unit-of-production basis
over the life of remaining proved reserves. Costs centers for amortization
purposes are determined on a field-by-field basis.
Prior to January 1, 1996, capitalized costs of proved properties were
reviewed for impairment on a field-by-field basis limiting capitalized costs to
estimated future net revenues from proved properties, assuming current prices
and costs. Commencing January 1, 1996, the Company adopted SFAS 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
be Disposed Of". Pursuant to SFAS 121, the Company assesses the need for an
impairment of capitalized costs of proved oil and gas properties on a field-by-
field basis utilizing undiscounted expected future cash flows. If an impairment
is indicated, the amount of such impairment is recognized to the extent that the
net capitalized costs of the proved oil and gas properties exceeds the fair
market value so determined.
Based on such an assessment, the Company has recorded a Provision for
impairment for the nine months ended September 30, 1997 of $2,269,000. This
provision primarily was attributable to the $534,000 non-cash write off in the
second quarter of 1997 of the Company's Sacatosa project and a $1,523,000 non-
cash write-down of the Company's Blackwell/RQS field in the third quarter of
1997.
5
<PAGE>
AMERAC ENERGY CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
3. SUPPLEMENTAL CASH FLOW INFORMATION
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------
1997 1996
------------ -------------
<S> <C> <C>
Cash payments for:
Interest.............................................. $ 510,000 $ 662,000
Income taxes.......................................... 60,000 5,000
Non-cash investing and financing activities:
Senior Preferred Stock dividends...................... ---- 5,434,000
Compensation paid in Common Stock..................... 50,000 180,000
Approximate value of Common Stock issued for Fremont
acquisition......................................... ---- 640,000
</TABLE>
4. CONTINGENCIES
The Company has a reserve established for the estimated costs associated
with platform abandonment at its South Timbalier 198 property. At September 30,
1997, the reserve for such abandonment was $454,000, compared with $389,000 at
December 31, 1996. Such amounts are included in Accumulated Depreciation,
Depletion and Amortization.
The Company is subject to various possible contingencies which arise
primarily from interpretation of federal and state laws and regulations
affecting the oil and gas industry. Such contingencies include differing
interpretations as to the prices at which oil and gas sales may be made, the
prices at which royalty owners may be paid for production from their leases and
other matters. Although management believes it has complied with the various
laws and regulations, administrative rulings and interpretations thereof,
adjustment could be required as new interpretations and regulations are issued.
In addition, production rates, marketing and environmental matters are subject
to regulation by various federal and state agencies.
The Company is not currently a party to any litigation which would have a
material impact on its financial statements. However, due to the nature of its
business, certain legal or administrative proceedings may arise in the ordinary
course of its business.
6
<PAGE>
AMERAC ENERGY CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Three Months Ended September 30, 1997, Compared With Three Months Ended
September 30, 1996
The Company reported a loss of $2,046,000 for the three months ended September
30, 1997, compared with net income of $385,000 for the three months ended
September 30, 1996. This loss primarily was attributable to a $1,523,000 non-
cash impairment of the Blackwell/RQS field and, to a lesser extent, to lower
revenues for both oil and natural gas and to generally higher expenses.
Oil and gas revenues decreased from approximately $2.6 million during the
third quarter of 1996 to approximately $1.9 million during the third quarter of
1997, primarily due to lower volumes and lower realized prices. The decline in
production volumes was due primarily to lower natural gas production at the
Company's South Timbalier 198. The primary well at South Timbalier began to
produce water during December of 1996, and net production declined from
approximately 382,200 thousand cubic feet ("Mcf") of natural gas during the
third quarter of 1996 to approximately 259,300 Mcf of natural gas during the
third quarter of 1997.
During the third quarter of 1997, the Company's net production was
approximately 40,000 barrels ("Bbls") of oil and 566,600 Mcf of natural gas,
compared with approximately 48,800 Bbls of oil and 649,200 Mcf of natural gas
produced during the third quarter of 1996.
The Company's average realized prices during the third quarter of 1997 were
$17.23 per Bbl of oil and $2.12 per Mcf of natural gas. During the three months
ended September 30, 1996, the Company's realized prices for oil and natural gas
were $20.42 per Bbl and $2.37 per Mcf, respectively.
Lease operating expense increased from $597,000 in the third quarter of 1996
to $658,000 in the third quarter of 1997. This increase is attributable to
higher lease operating expense per unit of production and to workovers of
approximately $55,000 incurred in the third quarter of 1997.
Provision for impairments for the three months ended September 30, 1997 was
$1,573,000, compared with no provision for the comparable period of 1996. This
provision was essentially attributable to a $1,523,000 non-cash write-down of
the Company's Blackwell/RQS field, resulting from unsuccessful or marginal
drilling activity in the field and the subsequent downward evaluation of the
field's reserves.
Depreciation, depletion and amortization ("DD&A") expense increased from
approximately $699,000 during the third quarter of 1996 to approximately
$733,000 during the third quarter of 1997. This increase was due primarily to a
revision in the DD&A rate in the third quarter of 1997 and to additional
investments in oil and gas properties made subsequent to the third quarter of
1996.
General and administrative expenses increased from approximately $627,000 in
the third quarter of 1996 to approximately $761,000 in the third quarter of
1997, primarily as a result of increased staffing due to property acquisitions
made in 1996. This increase was partially offset by overhead billed by the
Company to other working interest owners and reimbursement of general and
administrative costs by certain of the Company's joint interest partners.
Interest expense decreased from approximately $245,000 in the third quarter of
1996 to approximately $183,000 in the third quarter of 1997, primarily as a
result of lower levels of bank debt outstanding during the third quarter of
1997.
7
<PAGE>
AMERAC ENERGY CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Nine Months Ended September 30, 1997, Compared With Nine Months Ended September
30, 1996
The Company reported a net loss of $2,356,000 for the nine months ended
September 30, 1997, compared with net income of $1,883,000 for the nine months
ended September 30, 1996. This nine month loss was attributable primarily to an
aggregate of $2,980,000 of increases in expenses comprised of increases in:
Provision for impairments ($2,269,000); Exploration expenses ($285,000),
primarily geological and geophysical; and workovers, a component of Lease
operating expense, ($426,000).
Oil and gas revenues decreased from approximately $7.4 million for the nine
months ended September 30, 1996 to approximately $7.2 million for the nine
months ended September 30, 1997. This decrease was primarily the result of
lower production due to production declines in various of the Company's
properties, which was partially offset by production from properties acquired
during the third quarter of 1996.
During the nine months ended September 30, 1997, the Company's net production
was approximately 140,900 Bbls of oil and 1,898,900 Mcf of natural gas. During
the comparable period of 1996, the Company's net production was approximately
142,000 Bbls of oil and 2,102,400 Mcf of natural gas.
During the nine months ended September 30, 1997, the Company's average
realized price for oil was $19.76 per Bbl and for natural gas was $2.33 per Mcf,
compared with prices during the nine months ended September 30, 1996 of $19.96
per Bbl of oil and $2.37 per Mcf of natural gas.
Lease operating expense increased from approximately $1.6 million for the nine
months ended September 30, 1996 to approximately $2.3 million for the nine
months ended September 30, 1997. This increase primarily is attributable to
approximately $426,000 of workover expense incurred in the 1997 period, compared
with less than $1,000 of workover expense incurred during the comparable period
of 1996. Additionally, higher lease operating expense resulted from costs
incurred in operating oil and gas properties acquired during the third quarter
of 1996.
Exploratory costs increased from approximately $29,000 for the nine months
ended September 30, 1996 to approximately $314,000 for the nine months ended
September 30, 1997. This increase primarily was attributable to increases in
geological and geophysical costs incurred in connection with the Company's
prospect development activities in the Easter Shelf of the Permian Basin.
Provision for impairments for the nine months ended September 30, 1997 was
$2,269,000, compared with no provision during the comparable period of 1996.
This provision was attributable primarily to the $534,000 non-cash write-off in
the second quarter of 1997 of the Company's Sacatosa project and to a $1,523,000
non-cash write-down of the Company's Blackwell/RQS field in the third quarter of
1997.
DD&A expense for the nine months ended September 30, 1997 was approximately
$2.1 million, exceeding the approximate $1.7 million reported for the comparable
period in 1996. This increase was due primarily to a revision in the DD&A rate
in the third quarter of 1997 and to additional investments in oil and gas
properties made subsequent to the third quarter of 1996.
General and administrative expenses increased from approximately $1.7 million
for the nine months ended September 30, 1996 to approximately $2.0 million for
the nine months ended September 30, 1997. This increase was primarily
attributable to increased salaries and benefits expense due to the hiring of
additional employees subsequent to the third quarter of 1996; costs incurred in
connection with listing of its Common Stock on the American Stock Exchange; and
the preparation of a "shelf" registration statement, as required by agreements
with certain stockholders. These increases were partially offset by overhead
billed by the Company to other working interest owners/partners.
8
<PAGE>
AMERAC ENERGY CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Interest expense decreased from approximately $662,000 for the nine months
ended September 30, 1996 to approximately $510,000 for the nine months ended
September 30, 1997, primarily as a result of lower levels of bank debt
outstanding during the comparable 1997 period.
DRILLING AND DEVELOPMENT ACTIVITIES
In September 1997, the Company announced that it had revised upward its proved
undeveloped reserves in the Golden Trend Field in Garvin County, Oklahoma with
the identification of ten additional proved undeveloped drilling locations in
the field. The gross drilling and completion cost per well is approximately
$700,000, and if all ten wells are drilled and completed, the Company's
estimated share of the aggregate drilling and completion costs would be
approximately $5.8 million. The Company has not yet formalized a timetable for
drilling these proved undeveloped locations.
LIQUIDITY AND CAPITAL RESOURCES
During the first nine months of 1997, the Company generated cash flow from
operations of approximately $1.7 million and had net borrowings of $125,000,
which were used primarily to fund its exploration and development drilling
activities. At the end of the third quarter of 1997, the Company had
outstanding debt of approximately $7.8 million under its bank credit facility.
Effective August 1, 1997, the Company's borrowing base was increased to $10.5
million, which decreases $250,000 on the first day of each month, commencing
September 1, 1997. The Company's borrowing base at September 30, 1997 was
approximately $10.2 million, providing available borrowing capacity of
approximately $2.4 million. At November 14, 1997, the Company's borrowing base
was approximately $9.8 million, which with bank debt of $8.3 million provided
the Company with borrowing capacity of approximately $1.5 million.
The Company's working capital position at September 30, 1997 was $357,000,
down from approximately $1.5 million of working capital reported at December 31,
1996. Working capital at June 30, 1997 was approximately $1.6 million. The
decline primarily was attributable to a reclassification of $579,000 in long-
term debt to current maturities during the third quarter of 1997 and to the
reduction of cash to pay for the Company's drilling and other development
activities. The Company expects to further draw on its working capital which,
together with additional bank borrowing, will be used to fund the Company's
participation in drilling and other development activities anticipated during
the fourth quarter of 1997. The Company believes it has sufficient borrowing
capacity, together with internally generated cash flow, to fund its fourth
quarter drilling and other development plans.
In early 1998, the Company anticipates it will need additional funds to
augment internally generated cash flow to fund its operations and capital
spending plans. The Company may seek to raise such additional funds through
supplemental bank borrowing, mezzanine financing, sale of production payments or
equity offerings, or some combination of the foregoing, or through a merger with
an adequately capitalized merger partner. However, there is no assurance the
Company will be successful in obtaining any such additional financing or in
consummating any such merger.
RECENT DEVELOPMENTS
In September, the Company announced that pursuant to a previously announced
plan to consider alternatives for maximizing shareholder value, its Board of
Directors authorized and had initiated discussions with a select group of
companies regarding a possible strategic merger or similar business combination.
The Company's financial advisor recommended this course of action as a result of
their analysis of the various options available to the Company.
9
<PAGE>
AMERAC ENERGY CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
NEW ACCOUNTING STANDARDS
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings Per Share" ("SFAS 128"). SFAS
128 requires dual presentation of "basic earnings per share" and "diluted
earnings per share" on the face of the Consolidated Statement of Operations.
SFAS 128 will be effective for fiscal yearend reporting and requires restatement
of all prior period earnings per share data presented. The impact of adopting
this statement in not expected to have a material effect on the Company's
earnings per share.
FORWARD-LOOKING STATEMENTS
When included in this report, the words "expects," "intends," "plans,"
"anticipates," "estimates," and analogous expressions are intended to identify
forward-looking statements. Such statements inherently are subject to a variety
of risks and uncertainties that could cause actual results to differ materially
from those projected. Such risks and uncertainties include, among others,
general economic and business conditions, changes in foreign and domestic oil
and gas exploration and production activity, information regarding oil and gas
reserves, future drilling and operations, future production of oil and gas,
future net cash flows, competition, changes in foreign, political, social and
economic conditions, regulatory initiatives and compliance with governmental
regulations, and various other matters, many of which are beyond the Company's
control. These forward-looking statements speak only as of the date of this
report. The Company expressly disclaims any obligation or undertaking to
release publicly any updates or revisions to any forward-looking statement
contained herein to reflect any changes in the Company's expectations with
regard thereto or any changes in events, conditions or circumstances on which
any such statement is based.
10
<PAGE>
PART II
OTHER INFORMATION
ITEM 5. OTHER INFORMATION
The Company has entered into an agreement, dated October 20, 1997 and
effective August 4, 1997, with Peak Enernomics, Inc. ("Enernomics"), a
corporation owned and controlled by Kenneth R. Peak, a director and executive
officer of the Company, which provides that the Company will pay Enernomics
$100,000 upon consummation of a possible merger or similar business combination.
In addition, the Company will (i) pay Enernomics $5,000 per month until the
consummation of such a transaction and (ii) deliver to Enernomics 6,000 shares
of Company common stock, which will vest in Enernomics on a monthly basis at a
rate of 1,000 shares per month, but no later than upon consummation of such a
transaction, for furnishing Mr. Peak's services as a member of a Special
Committee formed to evaluate possible strategic alternatives for the Company.
The Company has entered into an agreement, dated October 20, 1997 and
effective August 4, 1997, with William P. Nicoletti, Chairman of the Board of
the Company, which provides that the Company will, in lieu of Mr. Nicoletti's
compensation as Chairman of the Board of the Company, (i) pay Mr. Nicoletti
$2,500 per month until consummation of a possible merger or similar business
combination and (ii) deliver to Mr. Nicoletti 3,000 shares of Company common
stock, which will vest in Mr. Nicoletti on a monthly basis at a rate of 500
shares per month, but no later than upon consummation of such a transaction, for
furnishing his services as a member of a Special Committee formed to evaluate
possible strategic alternatives for the Company.
On August 29, 1997, the Company retained McDonald & Company Securities, Inc.
("McDonald") to act as investment advisor in connection with evaluating the
Company's strategic alternatives and to render an opinion to the Company's Board
of Directors concerning the fairness, from a financial point of view, of a
possible transaction. Pursuant to an engagement letter, the Company agreed to
pay McDonald a fee of $50,000 upon delivery of such opinion. In addition, upon
consummation of a transaction, McDonald will be entitled to additional
compensation in the amount of $300,000 from the Company. The Company has also
agreed to reimburse McDonald for its out-of-pocket expenses (not to exceed
$25,000) and to indemnify McDonald against certain liabilities.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
See Exhibit Index following this page.
A report on Form 8-K was filed on September 24, 1997 reporting the Company had
issued a press release on September 22, 1997 announcing that its Board of
Directors had authorized the initiation of discussions with a select group of
companies regarding a possible strategic merger or similar business combination.
The Company also announced that it was revising upward its proved undeveloped
reserves in the Golden Trend Field in Garvin County, Oklahoma.
SIGNATURE
In accordance with the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned, hereunto duly authorized.
AMERAC ENERGY CORPORATION
(Registrant)
/s/ Jeffrey B. Robinson
-------------------------------------
Date: December 17, 1997 Jeffrey B. Robinson
President and Chief Executive Officer
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EXHIBIT INDEX
3-(1) Certificate of Incorporation of Wolverine Exploration Company
(incorporated by reference to Exhibit 3-(1) to the Company's Registration
Statement No. 33-21824 filed May 13, 1988).
3-(2) Amendment to Certificate of Incorporation of Wolverine Exploration
Company dated September 12, 1988 (incorporated by reference to Exhibit 3-
(1)(a) to the Company's Registration Statement No. 33-24429 filed
September 28, 1988).
3-(3) Amendment to Certificate of Incorporation of Wolverine Exploration
Company, dated March 16, 1995.
3-(4) Amendment to Certificate of Incorporation of Wolverine Exploration
Company dated March 28, 1995 (incorporated by reference to Annex IV to
Exhibit (a)(1) to the Company's Schedule 13E-4, dated November 15, 1994).
3-(5) Amendment to Certificate of Incorporation of Amerac Energy Corporation
dated July 12, 1996 (incorporated by reference to Exhibit 4(i).4 to the
Company's Current Report on Form 8-K dated February 28, 1997).
3-(6) Amendment to Certificate of Incorporation of Amerac Energy Corporation
dated July 12, 1996 (incorporated by reference to Exhibit 4(i).5 to the
Company's Current Report on Form 8-K dated February 28, 1997).
3-(7) Amendment to Certificate of Incorporation of Amerac Energy Corporation
dated November 20, 1996 (incorporated by reference to Exhibit 4(i).6 to
the Company's Current Report on Form 8-K dated February 28, 1997).
3-(8) Corporate Bylaws (filed herewith).
4-(1) Warrant Agreement, dated November 18, 1996, between Amerac Energy
Corporation and Petroleum Financial, Inc. (incorporated by reference to
Exhibit 4(I).8 to the Company's Registration Statement No. 333-24643
filed April 4, 1997).
4-(2) Form of Warrant (incorporated by reference to Exhibit I to the Warrant
Agreement referred to in Exhibit 4-(1)).
4-(3) Registration Rights Agreement, dated November 18, 1996, between Amerac
Energy Corporation and the party identified therein. A document identical
to this document, except for the name of the Holder and the Holder's
address for notices, was entered into by the Company with each purchaser
of Common Stock in the Company's private sale of Common Stock completed
on November 18, 1996 (incorporated by reference to Exhibit 4(I).10 to the
Company's Registration Statement No. 333-24643 filed April 4, 1997).
4-(4) Form of Warrant Agreement (incorporated by reference to Exhibit VI to the
Exploitation Agreement filed as Exhibit 10-(11) to the Company's Current
Report on Form 8-K, dated February 28, 1997).
4-(5) Form of Warrant (incorporated by reference to Exhibit I to the Form of
Warrant Agreement referred to in Exhibit 4-(4)).
4-(6) Form of Registration Rights Agreement (incorporated by reference to
Exhibit VII to the Exploitation Agreement filed as Exhibit 10-(11) to the
Company's Current Report on Form 8-K, dated February 28, 1997)).
4-(7) Registration Rights Agreement, dated January 16, 1996 among Amerac Energy
Corporation, Powell Resources, Inc., The Langstroth Family Limited I,
Thomas O. Goldsworthy and James B. Tollerton. Related to acquisition of
Fremont Energy Corporation Properties (incorporated by reference to
exhibit 10-(10) to Form 10-K for the fiscal year ended December 31,
1995).
10-(1) Agreement between the Company and William P. Nicoletti, dated October 20,
1997.
10-(2) Agreement between the Company and Peak Enernomics, Inc., dated October
20, 1997.
27 Financial Data Schedule
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Exhibit 3-(8)
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B Y - L A W S
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ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in Fort Worth, State of Texas, at such place as may be
fixed from time to time by the board of directors, or at such other place either
within or without the State of Delaware as shall be designated from time to time
by the board of directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
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Section 2. Annual meetings of stockholders, commencing with the year
1988, shall be held on the third Tuesday in April if not a legal holiday, and if
a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall elect
by a plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meetings not less than ten nor more than sixty days before the date of the
meeting.
Section 4. Business transacted at the annual meeting of stockholders
shall, unless a majority of the directors in office on the date immediately
preceding the date of the annual meeting otherwise determines, shall be limited
to the purposes stated in the notice of such annual meeting. Where business
introduced by a stockholder is not specified in the notice of annual meeting,
then in addition to any other applicable requirements, for business to be
properly introduced by a stockholder at an annual meeting of stockholders, the
stockholder must have given timely notice thereof in writing to the secretary of
the corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received by the secretary of the
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corporation, at the principal executive office of the corporation, not less than
fifty (50) days nor more than seventy-five (75) days prior to the meeting,
subject to any other requirements of law; provided, however, that in the event
that less than sixty-five (65) days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be received not later than the close of business on the
fifteenth day following the day on which such notice of the date of the meeting
was mailed or such public disclosure was made, whichever first occurs. A
stockholders' notice must set forth as to each matter the stockholder proposes
to bring before the meeting (i) a brief description of the business desired to
be brought before the meeting and the reasons for conducting such business at
the meeting; (ii) the name and record address of the stockholder proposing such
business; (iii) the number of shares of the corporation which are beneficially
owned by the stockholder; and (iv) any material interest of the stockholder in
such business.
Section 5. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
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stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 6. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the Board
of Directors, the Chairman of the Board of Directors or the president. Special
meetings of the stockholders may not be called by any other person or persons.
Section 7. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 8. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 9. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in
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person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 10. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 11. Unless otherwise provided in the certificate
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of incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Cumulative voting of shares of stock of the corporation, whether common or
preferred stock, is prohibited.
Section 12. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock 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 entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall not be less than two nor more
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than ten. The first board shall consist of six directors. Thereafter, within the
limits above specified, the number of directors shall be determined by
resolution of the board of directors. Nominations of persons for election to the
board of directors of the corporation at the annual meeting of stockholders
shall be made at the annual meeting by or at the direction of the board of
directors by any nominating committee or person appointed by the board of
directors, or by any stockholder of the corporation entitled to vote on the
election of directors at the meeting who timely complies with the notice
procedures herein set forth. To be timely, a stockholder's notice must be
delivered to or mailed to and received by the secretary of the corporation at
the principal executive offices of the corporation not less than fifty (50) days
not more than seventy-five (75) days prior to the meeting, subject to any other
requirements of law; provided, however, that in the event that less than sixty-
five (65) days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely must be
received not later than the close of business on the fifteenth day follwoing the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made, whichever first occurs. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor
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is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by three by-laws directed or required to
be exercised or done by the stockholders.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the time
and place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the chairman
of the board or the president on two days' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
president or secretary in like manner and on like notice on the written
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request of two directors unless the board consists of only one director; in
which case special meetings shall be called by the president or secretary in
like manner and on like notice on the written request of the sole director.
Section 8. At all meetings of the board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors,
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or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers
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which may require it; but no such committee shall have the power or authority in
reference to amending the certificate of incorporation, (except that a committee
may, to the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors as provided in
Section 151(a) fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, 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) adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and, unless the
resolution or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors
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when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for
attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at any election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-
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laws, notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a chairman, a president, a vice-president, a secretary
and a treasurer. The board of directors may also choose additional
vice-presidents, and one or more assistant secretaries and assistant
treasurers. Any number of offices may be held by the same person, unless the
certificate of incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first
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meeting after each annual meeting of stockholders shall choose a chairman, a
president, one or more vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
CHAIRMAN OF THE BOARD
Section 6. The chairman of the board shall preside when present at all
meetings of the board of directors and shall be ex officio chairman of all
meetings of the stockholders. The chairman of the board shall be chief executive
officer of the corporation and shall have general and active control of all of
its business. The chairman of the board shall perform such other duties as from
time to time may be assigned to him by the board
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of directors. The chairman of the board may also appoint another member of the
board of directors to act as vice chairman of the board of directors to carry
out such duties as from time to time may be assigned to him by the chairman or
the president.
THE PRESIDENT
Section 7. In the absence of the chairman of the board, or in the event
of his inability or refusal to act, the president shall perform the duties of
the chairman of the board, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the chairman of the board. He shall
preside, when present, at all meetings of the stockholders, except as may
otherwise be provided by statute, and in the absence of any other person
designated thereto by these by-laws, at all meetings of the board of directors.
The president shall also be the chief administrative office of the corporation,
and shall have general authority to execute authorized bonds, deeds, contracts,
and agreements in the name of the corporation, and to sign all certificates of
stock. The president shall perform such other duties as from time to time may be
assigned to him by the board of directors. In the absence of the president, his
duties shall be performed and his powers may be exercised by the chairman of the
board or such other office as he shall designate in writing or, in the latter
case, subject to review or superseding action by the board of directors.
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Section 8. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 9. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 10. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of
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all meetings of the stockholders and special meetings of the board of directors,
and shall perform such other duties as may be prescribed by the board of
directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 11. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 12. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and
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other valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the board of directors.
Section 13. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 14. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 15. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the
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treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will
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furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new
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certificate or certificates or uncertificated shares to be issued in place of
any certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates or
uncertificated shares, the board of directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncer-
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tificated shares shall be cancelled and issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such
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owner, and to hold liable for calls and assessments a person registered on its
books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the full extent permitted by the General Corporation Law
of Delaware.
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ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the board of directors. In addition, these by-laws may
be altered, amended or repealed by the affirmative vote of sixty-six and two-
thirds percent (66-2/3%) of the outstanding stock of the corporation entitled to
vote thereon.
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AMERAC ENERGY CORPORATION
AMENDMENT TO CORPORATE BY-LAWS
Effective as of December 2, 1997, Section 6 of Article II of the By-laws of
Amerac Energy Corporation, a Delaware corporation (the "Company"), were amended
and restated in its entirety as follows:
"Section 6. Special meetings of stockholders for the transaction of
such business as may properly come before the meeting may be called by
order of the Board of Directors or by stockholders holding together at
least a majority of all the shares of the corporation entitled to vote at
the meeting, and shall be held as such date and time, within or without the
State of Delaware, as may be specified by such order."
