SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MAGELLAN PETROLEUM CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 06-0842255
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
149 Durham Road
Madison, Connecticut 06443
Telephone (203) 245-7664
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
MAGELLAN PETROLEUM CORPORATION 1998 STOCK OPTION PLAN
(Full title of the plan)
Timothy L. Largay, Esq.
MURTHA, CULLINA, RICHTER AND PINNEY LLP
CityPlace, 29th Floor
Hartford, Connecticut 06103
Telephone (860) 240-6000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to Offering Price Aggregate Registration
Be Registered Be Registered Per Share* Offering Price Fee
================================================================================
Shares of Common
Stock, par value
$1.00 per share 1,000,000 $1 7/16 $1,437,500 $399.63
================================================================================
(*) Estimated solely for the purpose of calculating the registration fee. Based
on prices an aggregate of 1,000,000 at $1 7/16 per share, the average of the
high and low prices (as reported in The Wall Street Journal, Eastern Ed.) of the
common stock on the Pacific Exchange, Inc. on January 13, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents sent or given to individuals selected to participate in the Company's
1998 Stock Option Plan (the "Plan") pursuant to Rule 428(b)(l) of the Securities
Act of 1933, as amended (the "Securities Act"). Such documents are not required
to be and are not filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed with the Securities
and Exchange Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1998;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
(3) The Company's Current Report on Form 8-K dated September 11, 1998.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated herein by reference and to be part hereof
from the date of filing of such documents.
Item 4. Description of Securities
Description of Common Stock
The following is a brief description of the Common Stock (par
value $.01 per share) of the Company, all rights of stockholders being
determined by the laws of Delaware.
<PAGE>
Voting Rights
All voting rights are vested in the holders of Common Stock,
each share voting equally with every other share. An Amendment to the
Certificate of Incorporation of the Company by the addition of Article Twelfth,
adopted by the stockholders of the Company on December 3, 1968, provides that in
matters to be voted on at meetings of stockholders, the vote of a majority of
those present in person or by proxy will be required in addition to a majority
of the shares represented. Article Twelfth provides that when shares are held by
members or stockholders of another company, association or similar entity and
such persons act in concert, or when shares are held by or for a group of
stockholders whose members act in concert by virtue of any contract, agreement
or understanding, such persons shall be deemed to be one stockholder for the
purposes of Article Twelfth. The Company will determine whether stockholders
were acting in concert, depending on the circumstances and the evidence, if any,
that stockholders were in fact so acting and should therefore be treated as one
stockholder.
Liquidation and Dividend Rights
Subject to the rights of creditors, all rights to the assets
of the Company available for distribution upon liquidation or upon the payment
of any dividend are vested in the holders of Common Stock and each share is
entitled to participate equally with every other share. The Company is
restricted from paying any dividend or making any other payment to shareholders
(except by way of return of capital) on the Common Stock until its accumulated
deficit ($19,523,338 at September 30, 1998) is eliminated.
Pre-emptive Rights, Conversion Rights, Redemption Provisions, Assessments
The holders of Common Stock have no pre-emptive rights. There
are no conversion rights attached to the Common Stock and there are no
provisions for sinking funds or redemption of shares. The holders of outstanding
shares of Common Stock are not liable to any further calls or assessments by the
Company.
Item 5. Interest of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Certificate of Incorporation of the Company, as amended,
contains the following provisions respecting indemnification.
<PAGE>
FIFTEENTH: A director of this Corporation shall not be
personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware
General Corporation Law hereafter is amended, changed or
modified in any way to further eliminate or limit the
liability of directors to the Corporation or its stockholders
or third parties, then directors of the Corporation, in
addition to the circumstances in which directors are not
personally liable as set forth in the preceding sentence,
shall also not be personally liable to the Corporation or its
stockholders or third parties for monetary damages to such
further extent permitted by such amendment, change or
modification.
Any repeal or modification of the foregoing paragraph shall
not adversely affect the rights of any director of the
Corporation relating to claims arising in connection with
events which took place prior to the date of such repeal or
modification.
SIXTEENTH: The Corporation shall enter into appropriate
agreements with its directors and officers (and with such
other employees and agents as the Board of Directors deems
appropriate in its sole and exclusive discretion) to both
indemnify them and advance to them the funds for litigation
expenses to the fullest extent permitted by the laws of the
State of Delaware, as the same presently exist or may
hereafter be amended, changed or modified.
Any repeal or modification of the foregoing paragraph shall
not adversely affect the rights of any director or officer (or
any such employees or agents) of the Corporation relating to
claims arising in connection with events which took place
prior to the date of such repeal or modification.
Article III, Section 9 of the Company's By-Laws which provides
for indemnification agreements with its directors and officers is substantially
identical to Article SIXTEENTH of the Certificate of Incorporation and provides
as follows:
SECTION 9. The Corporation shall enter into appropriate
agreements with its directors and officers (and with such
other employees and agents as the Board of Directors deems
appropriate in its sole and exclusive discretion) both to
indemnify such directors and officers (and such other
employees and agents, if any) and to advance to such directors
and officers (and such other employees and agents, if any) the
funds for litigation expenses to the fullest extent permitted
by the laws of the State of Delaware, as the same presently
exist or may hereafter be amended, changed or modified.
Any repeal or modification of the foregoing paragraph shall
not adversely affect the rights of any director or officer (or
any such employee or agent) of the corporation relating to
claims arising in connection with events which took place
prior to the date of such repeal or modification.
<PAGE>
Section 145 of the Delaware General Corporation Law provides
for the indemnification of directors and officers. Generally Section 145
provides for indemnification to cover the claims and lawsuits of two general
categories. The first category, third-party claims, includes lawsuits brought
against the Company and its directors or officers by third parties who claim to
have been injured by some unlawful action. Section 145 provides that a director
or officer subject to this class of claim is entitled to indemnification for any
amount paid for the judgment or settlement and any expenses incurred in a
reasonable defense thereof, provided that the director or officer (i) acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Company, and (ii) with respect to any criminal
action or proceeding, had no reasonable cause to believe that his conduct was
unlawful.
The second category of claims for which a director or officer
could seek indemnification are claims by or in the right of the Company, whether
such claims are made by the Company directly or by a stockholder in a derivative
action. Examples in this category include breach by a director of his duty of
loyalty to the Company. As to this category of claims and lawsuits, Section 145
provides specifically that the director or officer may obtain indemnification of
expenses actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company and if a court of appropriate jurisdiction approves such
indemnification. However, directors and officers are not entitled to be
indemnified under the statute to recover amounts paid in damages or settlement
of such suits.
Section 145, by its terms, is not exclusive. Section 145(f)
provides in pertinent part: "The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise."
In accordance with Article SIXTEENTH of its Certificate of
Incorporation, the Company has entered into indemnification agreements with each
of its directors and officers.
In 1985, the Company purchased $100,000 of directors and
officers liability insurance coverage from an unaffiliated Bermuda company at a
cost of $100,000 plus an annual $7,500 service fee during the period of the
policy. The policy amount was increased to $200,000 in 1998. The Company is
credited with investment income from the policy premium during the term of the
policy and all or a portion of such premium will be refunded at the end of the
policy term to the extent that no claims are made.
The Company presently has a $10,000,000 policy of Directors
and Officers liability insurance with a $200,000 deductible provision.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and persons
controlling the Company pursuant to the foregoing provisions, the registrant has
been informed that in the opinion of the Securities Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
<PAGE>
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4. Instruments defining the rights of security holders.
A. The Corporation's 1998 Stock Option Plan is filed herein.
B. Articles of Incorporation are filed herein.
C. By-Laws are filed herein.
5. Opinion regarding legality.
A. Opinion of counsel, Murtha, Cullina, Richter and Pinney
LLP is filed herein.
23. Consents of experts and counsel.
A. Consent of Murtha, Cullina, Richter and Pinney LLP is
contained in their opinion regarding legality.
B. Consent of Ernst & Young LLP is filed herein.
24. Powers of attorney for Dennis D. Benbow, Benjamin W. Heath,
Timothy L. Largay, Walter McCann and Ronald P. Pettirossi are
filed herein.
Item 9. Undertakings
(a) Undertakings Relating to Rule 415 Offerings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
<PAGE>
(b) Undertaking Relating to the Incorporation of Certain Documents
by Reference
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Filing of registration statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Madison, State of Connecticut on January 14,
1999.
MAGELLAN PETROLEUM CORPORATION
(Registrant)
By /s/ James R. Joyce
James R. Joyce
President
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Name Title Date
---- ----- ----
Principal executive officer:
/s/ James R. Joyce President and January 14, 1999
James R. Joyce Director
Principal financial officer
and controller or principal
accounting officer:
/s/ James R. Joyce Chief Financial Officer January 14, 1999
James R. Joyce
All other members of
the Board of Directors:
/s/ James R. Joyce Director January 14, 1999
James R. Joyce
Attorney-in-Fact for:
Dennis D. Benbow Director
Benjamin W. Heath Director
Timothy L. Largay Director
Walter McCann Director
Ronald P. Pettirossi Director
<PAGE>
INDEX TO EXHIBITS
Exhibit No.
4. A. 1998 Stock Option Plan
B. Articles of Incorporation
C. By-Laws
5. Opinion and Consent of Counsel,
Murtha, Cullina, Richter and Pinney LLP
23. A. Consent of Murtha, Cullina, Richter and Pinney LLP is
contained in their opinion regarding legality
B. Consent of Ernst & Young LLP
24. Powers of Attorney for Dennis D. Benbow, Benjamin W. Heath,
Timothy L. Largay, Walter McCann and Ronald P. Pettirossi
MAGELLAN PETROLEUM CORPORATION
1998 STOCK OPTION PLAN
1. Purpose of Plan.
The purpose of this Non-Qualified Stock Option Plan (the "Plan") is to
further the interests of Magellan Petroleum Corporation, a Delaware corporation,
(the "Company"), and its subsidiaries or affiliates, by providing eligible
individuals (as designated in Section 4 below) with an opportunity to acquire or
increase a proprietary interest in the Company through the grant of options to
purchase common stock of the Company or through the grant of Stock Appreciation
Rights ("SARs"), and thus to provide an additional incentive to such persons to
continue their affiliation with the Company and its subsidiaries or affiliates
and to give them a greater interest in the success of the Company (options and
SARs are referred to herein collectively as "Awards"). Options granted to
eligible individuals ("Optionees") may be accompanied or followed by SARs or
SARs may be granted to eligible individuals without accompanying option grants
as described in Section 6, below.
2. Stock Subject to Plan.
There shall be reserved for issuance or transfer upon the exercise of
all Awards to be granted from time to time under the Plan an aggregate of
1,000,000 shares of the Company's common stock, one cent par value (the
"Stock"), which shares may be in whole or in part authorized and unissued shares
of stock or issued shares of stock which shall have been reacquired by the
Company, as the Board of Directors shall from time to time determine. For the
purposes of this Section 2, a share of Stock shall be deemed issued or
transferred upon the exercise of any SAR. If any Award granted under the Plan
shall expire, be surrendered to the Company or terminate for any reason without
having been exercised in full, the shares of Stock subject thereto that have not
been issued or transferred or deemed issued or transferred shall again be
available for the purposes of the Plan.
3. Administration.
The Plan shall be administered by a committee (the "Committee") of not
less than two (2) members of the Board of Directors of the Company, appointed by
the Board. Vacancies occurring in membership of the Committee shall be filled by
the Board.
The Committee shall keep minutes of its meetings. The Committee shall
select one of its members as its chairman and shall hold its meetings at such
times and places as it may determine. The Committee shall establish such rules
and regulations for the conduct of its business as it shall deem advisable and
may act without meeting by unanimous written consent. One or more members of
the Committee may participate in a meeting of the Committee by means of
conference telephone or similar communications equipment provided all persons
participating in the meeting can hear one another. A majority of the entire
Committee shall constitute a quorum, and the acts of a majority of the members
present at or so participating in any meeting at which a quorum is constituted
shall be the acts of the Committee.
The Committee shall have absolute authority in its discretion, but
subject to the express provisions of the Plan, to interpret the Plan; to
prescribe, amend, and rescind rules and regulations relating to the Plan; and to
make any and all other determinations deemed necessary or advisable for the
administration of the Plan. The Committee's determination on the foregoing
matters shall be conclusive.
Absent any other provision by the Board of Directors of the Company,
the power and responsibilities of the Committee shall be vested and assumed by
the Board of Directors of the Company acting as a committee of the whole.
4. Eligibility.
Awards under the Plan may be granted to all employees, directors,
officers of, and consultants and consulting firms to (i) the Company, (ii)
subsidiary corporations of the Company from time to time (the "Subsidiaries"),
(iii) any business entity in which the Company shall from time to time have a
substantial interest ("Affiliate"), who, in the sole opinion of the Committee
are, from time to time, responsible for the management and/or growth of all or
part of the business of the Company. In determining the persons to whom Awards
shall be granted and the number of shares to be covered by each Award, the
Committee may take into account the nature of the services rendered by such
persons, their present and potential contribution to the Company's success, and
such other factors as the Committee in its sole discretion shall deem relevant.
<PAGE>
5. Stock Options
(a) Grant of Options. The Committee shall have absolute
authority in its discretion, but subject to the express provisions of the Plan,
to determine (i) the person to whom options shall be granted, (ii) the time or
times at which options shall be granted, (iii) the number of shares to be
subject to each option, (iv) the time or times at which an option can be
exercised and whether in whole or in installments, and (v) the amount, if any,
by which the exercise price of any granted option may be reduced during the term
thereof.
(b) Option Agreements. The Committee shall have absolute
authority in its discretion to determine the terms and provisions (and
amendments thereof) of the respective option agreements (which need not be
identical), including such terms and provisions (and amendments) as shall be
required in the judgment of the Committee to conform to any change in any law or
regulation applicable thereto. The Committee's determination on the foregoing
matters shall be conclusive. All options granted pursuant to the Plan shall be
evidenced by the Company and by the Optionee, in such form or forms as the
Committee shall from time to time determine. Option agreements covering options
granted from time to time or at the same time need not contain similar
provisions; provided, however, that all such option agreements shall comply with
all terms of the Plan. The terms and conditions of any and all SARs granted at
the same time as an option shall be included in the option agreement and shall
comply with the terms of Section 6, below. Terms and provisions of agreements
evidencing SARs granted alone or following the grant of an option shall comply
with Section 6(b), below.
(c) Option Prices. The purchase price of each share of Stock
subject to an option granted hereunder shall be determined by the Committee but
may not be less than the fair market value of the Stock on the date of grant.
The fair market value of the Stock on any given date shall be the closing price
of the Stock on the Pacific Exchange (or the principal exchange on which the
Stock is traded) on the date immediately prior to such grant, or, if no sales of
the Stock occurred on that day, then the most recent day for which sales were
reported.
(d) Term and Exercise of Options.
(i) The Committee shall have authority in its discretion to
prescribe in any option agreement that the option may be exercised in different
installments during the term of the option. Unless otherwise determined by the
Committee or in the option agreement, each option granted under the Plan shall
be exercisable with respect to not more than one-third (1/3) of such shares of
Stock subject thereto after the expiration of one (1) year following the date of
its grant, and shall be exercisable as to an additional one-third (1/3) of such
shares of Stock after the expiration of each of the succeeding two (2) years, on
a cumulative basis, so that such option, or any unexercised portion thereof,
shall be fully exercisable after a period of three (3) years following the date
of its grant. An option that is exercisable under the Plan may be exercised by
delivery to the Company (on any business day, at its principal office, addressed
to the attention of the Committee) of a written notice of exercise, which notice
shall specify the number of shares of Stock with respect to which the option is
being exercised. The purchase price of the shares to be acquired shall be paid
in full in cash upon the exercise of the option, except as provided in
subsection (ii) below. The Company shall not be required to deliver certificates
for such shares until payment has been made in accordance with the terms of this
Section and such other conditions to the valid and lawful issuance of the shares
as may exist from time to time shall have been fully satisfied.
(ii) Payment in full need not accompany the exercise of
options provided that the Stock certificate or certificates for the shares for
which the option is exercised be delivered to a licensed broker acceptable to
the Company as the agent for the individual exercising the option and, at the
time such Stock certificate or certificates are delivered, the broker tenders to
the Company an amount in cash (or cash equivalents acceptable to the Company)
equal to the exercise price for the shares of Stock purchased pursuant to the
exercise of the option plus the amount (if any) of federal or other taxes which
the Company may, in its judgment, be required to withhold with respect to the
exercise of an option. The Committee shall have the authority, but not the
obligation, to establish at its discretion and in accordance with all applicable
laws and the terms of this Plan, procedures by which an Optionee may exercise an
option in accordance with this subsection 5(ii) absent the requirement that the
Optionee deliver such certificates to a licensed broker, provided, that the
Optionee deliver such certificates directly to the Company.
(iii) The term of each option shall be for such period as the
Committee shall determine, but not more than ten years from the date of the
granting thereof, or such shorter period as described in Sections 8 and 9
hereof.
(iv) As to employees, except as provided in Sections 8 and 9
hereof, an option granted to an employee of the Company or one of its
Subsidiaries or Affiliates may not be exercised unless the holder thereof is at
the time of such exercise (and has been since the date of the grant) an employee
of the Company or one of its then Subsidiaries or a then Affiliate.
<PAGE>
(v) An Optionee shall not have any of the rights of a
stockholder with respect to the shares subject to option until such shares shall
be issued or transferred to him upon exercise of his option.
(vi) The exercise of any option by a United States citizen or
resident may be contingent upon receipt of a representation that at the time of
such exercise it is the Optionee's present intention to acquire the shares being
purchased for investment.
(vii) The certificate(s) representing shares issued upon
exercise of any option may contain a legend restricting the transfer thereof.
6. Grant of Stock Appreciation Rights.
(a) Grant of SARs. The Committee shall have absolute authority
in its discretion, but subject to the express provisions of the Plan, to
determine (i) the person to whom SARs shall be granted, (ii) the time or times
at which SARs shall be granted, (iii) the number of shares to be subject to each
SAR, and (iv) the time or times at which a SAR can be exercised and whether in
whole or in installments, and (v) the amount, if any, by which the exercise
price of any granted SAR may be reduced during the term thereof. In the
discretion of the Committee, a SAR may be granted alone; simultaneously with the
grant of an option under the Plan and in conjunction therewith or in the
alternative thereto; or subsequent to the grant of an option under the Plan and
in conjunction therewith or in the alternative thereto.
(b) SAR Agreements. The Committee shall have absolute
authority in its discretion to determine the terms and provisions (and
amendments thereof) of the respective SAR agreements (which need not be
identical), including such terms and provisions (and amendments) as shall be
required in the judgment of the Committee to conform to any change in any law or
regulation applicable thereto. The Committee's determination on the foregoing
matters shall be conclusive. All SARs granted independently of or following
options granted pursuant to the Plan shall be evidenced by the Company and by
the SAR holder, in such form or forms as the Committee shall from time to time
determine. Such agreements concerning the grant of SARs granted from time to
time or at the same time need not contain similar provisions; provided, however,
that all such agreements shall comply with all terms of the Plan.
(c) SAR Prices.
(i) The exercise price of each SAR granted alone shall be
determined by the Committee but may not be less than the fair market value of
one share of the Stock on the date of grant. The fair market value of the Stock
on any given date shall be the closing price of the Stock on the Pacific Stock
Exchange (or the principal exchange on which the Stock is traded) on the date
immediately prior to such grant, or, if no sales of the Stock occurred on that
day, then the most recent day for which sales were reported.
(ii) A SAR granted simultaneously with or subsequent to the
grant of an option and in conjunction therewith or in the alternative thereto
shall have the same exercise price as the related option, shall be transferable
only upon the same terms and conditions as the related option, and shall be
exercisable only to the same extent as the related option; provided, however,
that a SAR, by its terms, shall be exercisable only when the fair market value
of the shares subject to the SAR and related option exceeds the exercise price
thereof.
(d) Term and Exercise of SARs.
(i) The Committee shall have authority in its discretion to
prescribe in any SAR agreement that the SAR may be exercised in different
installments during the term of the SAR. Unless otherwise determined by the
Committee or in the SAR agreement, each SAR granted under the Plan shall be
exercisable with respect to not more than one-third (1/3) of such shares of
Stock subject thereto after the expiration of one (1) year following the date of
its grant, and shall be exercisable as to an additional one-third (1/3) of such
shares of Stock after the expiration of each of the succeeding two (2) years, on
a cumulative basis, so that such SAR, or any unexercised portion thereof, shall
be fully exercisable after a period of three (3) years following the date of its
grant. A SAR shall entitle the holder upon exercise thereof to receive from the
Company, upon a written request filed with the Committee (the "Request"), a
number of shares (with or without restrictions as to substantial risk of
forfeiture and transferability, as determined by the Committee, in its sole
discretion), an amount in cash, or any combination of shares of Stock and cash,
as specified in the Request (but subject to the approval of the Committee, in
its sole discretion, at any time up to and including the time of payment, as to
the making of any cash payment), having an aggregate fair market value equal to
the product of (i) the excess of the fair market value, on the day of such
Request, of one (1) share over the exercise price per share specified in such
SAR or its related option, multiplied by (ii) the number of shares for which
such SAR shall be exercised.
<PAGE>
(ii) Any election by a holder of a SAR to receive cash in full
or partial settlement of such SAR, and any exercise of such SAR for cash, may be
made only by a Request filed with the Committee during the period beginning on
the third (3rd) business day following the date of release for publication by
the Company of quarterly or annual summary statements of sales and earnings and
ending on the twelfth (12th) business day following such date. Within thirty
(30) days of the receipt by the Company of a Request to receive cash in full or
partial settlement of a right or to exercise such SAR for cash, the Committee
shall, in its sole discretion, either consent to or disapprove, in whole or in
part, such Request. A Request to receive cash in full or partial settlement of a
SAR or to exercise a SAR for cash may provide that, in the event the Committee,
shall disapprove such Request, such Request shall be deemed to be an exercise of
such SAR for shares.
(iii) A holder of a SAR shall not be entitled to request or
receive cash in full or partial payment of such SAR during the first six (6)
months of its term; provided, however, that such prohibition shall not apply if
the holder of such SAR is not subject to the reporting requirements of Section
16(a) of the Exchange Act. In no event will a holder of a SAR who is subject to
the reporting requirements of Section 16(a) of the Exchange Act be entitled to
make such a request or receive cash in full or partial payment of such SAR until
the Company shall have satisfied the informational requirements of Rule
16b-3(e)(1) promulgated under the Exchange Act for the specified one-year
period.
(iv) Upon exercise of a SAR granted simultaneously with or
subsequent to an option and in the alternative thereto, the number of shares for
which the related option shall be exercisable shall be reduced by the number of
shares for which the SAR shall have been exercised. The number of shares for
which a SAR shall be exercisable shall be reduced upon any exercise of a related
option by the number of shares for which such option shall have been exercised.
(v) If the Committee disapproves in whole or in part any
election by a holder to receive cash in full or partial settlement of a SAR or
to exercise such SAR for cash, such disapproval shall not affect such holder's
right to exercise such SAR at a later date, to the extent that such SAR shall be
otherwise exercisable, or to elect the form of payment at a later date, provided
that an election to receive cash upon such later exercise shall be subject to
the approval of the Committee. Additionally, such disapproval shall not affect
such holder's right to exercise any related option or options granted to such
holder under the Plan.
(vi) The term of each SAR shall be for such period as the
Committee shall determine, but not more than ten years from the date of the
granting thereof, or such shorter period as described in Sections 8 and 9
hereof. A SAR shall be deemed exercised on the last day of its term, if not
otherwise exercised by the holder thereof, provided that the fair market value
of the Shares subject to the SAR exceeds the exercise price thereof on such
date.
(vii) As to employees, except as provided in Sections 8 and 9
hereof, an option granted to an employee of the Company or one of its
Subsidiaries or Affiliates, may not be exercised unless the holder thereof is at
the time of such exercise (and has been since the date of the grant) an employee
of the Company of one of its then Subsidiaries or a then Affiliate.
(viii) Any SAR shall be exercisable upon such additional terms
and conditions as may from time to time be prescribed the Committee.
7. Restrictions on Transfer of Awards.
Subject to the terms of Section 9 below, Awards are transferable only
to members of the Optionee's immediate family. For purposes of this Section 7,
an Optionee's immediate family includes, and only includes, the parents, spouse
and children of the Optionee.
<PAGE>
8. Termination of Employment.
In the case of an Award granted to any employee of the Company or one
of its Subsidiaries or Affiliates, in the event of termination of employment,
other than (a) a termination that is either (i) for cause or (ii) voluntary on
the part of the employee and without the written consent of the Company, or (b)
a termination by reason of death, the employee may (unless otherwise provided in
his or her award agreement) exercise his or her Award at any time within three
months after such termination of employment, or such other time as the Committee
shall authorize, but in no event after ten years from the date of granting
thereof, to the extent of the number of shares subject to the Award and
exercisable by him or her at the date of termination of his or her employment.
In the event of the termination of the employment of an employee to whom an
Award has been granted under the Plan that is either (i) for cause or (ii)
voluntary on the part of the employee without the written consent of the
Company, any Award granted pursuant to the Plan, to the extent not theretofore
exercised, shall terminate forthwith. Nothing in the Plan or any Award agreement
shall confer on any individual any right to continue in any capacity his
relationship with the Company or any of its Subsidiaries or Affiliates or
interfere in any way with the right of the Company or any of its Subsidiaries or
Affiliates to terminate such relationship at any time.
9. Rights in the Event of Death of Holder of Awards.
In the event of the death of any holder of an Award which has been
granted under the Plan, such Award (unless previously terminated or exercised)
may be exercised (to the extent exercisable by such person at the date of his or
her death) by a legatee or legatees of such option under such person's will, or
by such person's legal representative or distributees, at any time within a
period of one year after his death, but not after ten years from the date of
granting thereof.
10. Reload Options.
Within the Committee's complete discretion, whenever an Optionee
holding options (the "Original Option") outstanding under the Plan (including
any Reload Option granted under this Section) exercises the Original Option and
makes payment of the option price in whole or in part by delivering shares of
common stock (valued at the then current fair market value per share) previously
held by that individual (the "Owned Shares"), then that Optionee may receive a
new option (the "Reload Option") in an amount equal to the Owned Shares
surrendered by the Optionee in payment of the purchase price for the Original
Option being exercised. All such Reload Options granted hereunder shall be
nonqualified stock options and shall be subject to the following terms and
conditions:
(a) the option price per share shall be the then current fair
market value per share of the common stock as of the date of exercise of the
Original Option; and
(b) the Committee shall have absolute authority in its
discretion to determine all other terms and conditions of Reload Options.
11. Adjustment Upon Changes in Capitalization.
Notwithstanding any other provisions of the Plan, each Award agreement
shall contain such provisions as the Committee shall determine to be appropriate
for the adjustment of the number and class of shares subject to such Award and
of the exercise price in the event of changes in the outstanding Stock by
reasons of any stock dividend, split-up, recapitalization, rights offering,
combination or exchange of shares, merger, consolidation, acquisition of
property or stock, separation, reorganization, divisive reorganization or
liquidation and the like, and, in the event of any such change in the
outstanding Stock, the aggregate number and class of shares authorized to be
issued under the Plan shall be appropriately adjusted by the Committee, whose
determination of such adjustment shall be conclusive.
<PAGE>
12. Adjustments Upon Change of Control.
In the case of a Change of Control (as defined below) of the Company,
each Option and SAR then outstanding shall immediately be nonforfeitable and
exercisable in full.
The term "Change of Control" shall mean the occurrence of any of the
following events:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the
company, or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as
their ownership of the Stock of the Company), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the company (not including in
the securities beneficially owned by such person any securities
acquired directly from the Company or its affiliates) representing more
than 15% of the combined voting power of the Company's then outstanding
voting securities; provided, however, a Change of Control shall not be
deemed to occur solely because such person acquired beneficial
ownership of more than 15% of the combined voting power of the
Company's then outstanding voting securities as a result of the
acquisition of voting securities by the Company, which by reducing the
number of voting securities outstanding, increases the proportional
number of shares beneficially owned by such person, provided that if a
Change of Control would occur (but for the operation of this sentence)
as a result of the acquisition of voting securities by the Company, and
after such share acquisition by the Company, such person becomes the
beneficial owner of any additional voting securities which increases
the percentage of the then outstanding voting securities beneficially
owned by such person, then a Change of Control shall occur;
(ii) during any period of 24 consecutive months (not including
any period prior to the Effective Date), individuals who at the
beginning of such period constitute the Board and any new director
(other than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in
subsection (i), (iii) or (iv) of this Section 12) whose election by the
Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-third (2/3) of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board;
(iii) the stockholders of the Company approve a merger,
consolidation or reorganization of the Company with any other
corporation, other than a merger, consolidation or reorganization which
would result in the stockholders of the Company immediately before such
merger, consolidation or reorganization, owning, directly or indirectly
immediately following such merger, consolidation or reorganization, at
least 60% of the combined voting power of the voting securities of the
Company or such surviving entity outstanding in immediately after such
merger, consolidation or reorganization in substantially the same
proportion as their ownership of the voting securities immediately
before such merger, consolidation, or reorganization; or
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
13. Tax Withholding.
Any obligation of the Company to issue shares of stock or cash pursuant
to the grant or exercise of any Award shall be conditioned on the Award holder
having paid or made provision for payment of all applicable tax withholding
obligations, if any, satisfactory to the Committee. The Company and its
Subsidiaries and Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Award holder.
<PAGE>
14. Amendment and Termination.
The Board of Directors of the Company may make such modifications or
amendments to the Plan as it shall deem advisable, or in order to conform to any
change in any law or regulation applicable thereto. Without the consent of any
person to whom any Award shall therefore have been granted, no termination,
modification or amendment of the Plan shall adversely affect any rights which
may previously have been granted under the Plan to such persons.
15. Term of Plan.
The Plan shall take effect on January 1, 1998 (the "Effective Date")
and shall remain effective until termination by the Board of Directors of the
Company or until all shares of Stock authorized to be issued pursuant to the
Plan have been issued or transferred or deemed issued or transferred as provided
in Section 2.
16. Shareholder Approval.
The Plan will be submitted to the common stockholders of the Company
for confirmation, ratification and approval by the holders of a majority of the
outstanding shares of common stock of the Company by any method adequate under
Delaware law in the case of an action requiring shareholder approval. If the
Plan is not approved by the holders of a majority of the outstanding shares of
common stock of the Company by December 31, 1998, then the Plan shall terminate
and any Awards granted hereunder shall be void and of no further force or
effect.
As filed with the Secretary of State
of the State of Delaware on May 4, 1987;
and subsequently amended on: February 12, 1988
RESTATED CERTIFICATE OF INCORPORATION
-of-
MAGELLAN PETROLEUM CORPORATION
(A Delaware Corporation)
FIRST: The name of the Corporation is
MAGELLAN PETROLEUM CORPORATION
SECOND: The address of its registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
THIRD: The nature of the business, and objects or purposes
proposed to be transacted, promoted or carried on is:
(a) To engage in any lawful acts and activities for
which corporations may be organized under the General Corporation Law of
Delaware, and by such statement all lawful acts and activities shall be within
the purposes of the Corporation, which purposes shall hereby include, but not be
limited to, those to engage in all aspects of the exploration, production,
recovery and all related activities of the petroleum industry, including but not
limited to the business of mining and of drilling, boring and exploring for,
producing, transporting, refining, treating, distilling, manufacturing,
handling, and dealing in, buying and selling petroleum, oil, natural gas,
asphaltum, bitumen, bituminous rock, and any and all other mineral and
hydrocarbon substances and any and all products or by-products which may be
derived from said substances or any of them; and for such or any of such
purposes to buy, exchange, contract for, lease and in any and all other ways
acquire, take, hold and own, and to sell, mortgage, lease and otherwise dispose
of, and to construct, manage, maintain, deal in and operate mines, refineries,
tanks, machinery, steam, sailing and other vessels or watercraft of every kind,
and otherwise to deal in, operate, establish, promote, carry on, conduct and
manage any all other property that may in anywise be deemed advisable in
connection with the business of the Corporation.
(b) To manufacture, purchase or otherwise acquire,
invest in, own, mortgage, pledge, sell, assign and transfer or otherwise dispose
of, trade, deal in and deal with goods, wares and merchandise and personal
property of every class and description.
(c) To acquire, and pay for in cash, stock or bonds
of this corporation or otherwise, the good will, rights, assets and property,
and to undertake or assume the whole or any part of the obligations or
liabilities of any person, firm, association or corporation.
(d) To acquire, hold, use, sell, assign, lease, grant
licenses in respect of, mortgage or otherwise dispose of letters patent of the
United States or any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights, trademarks and trade names,
relating to or useful in connection with any business of this corporation.
(e) To acquire by purchase, subscription or
otherwise, and to receive, hold, own, guarantee, sell, assign, exchange,
transfer, mortgage, pledge or otherwise dispose of or deal in and with any of
the shares of the capital stock, or any voting trust certificates in respect of
the shares of capital stock, scrip, warrants, rights, bonds, debentures, notes,
trust receipts, and other securities, obligations choses in action and evidences
of indebtedness or interest issued or created by any corporations, joint stock
companies, syndicates, associations, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or other
political subdivision or by any governmental agency, and as owner thereof to
possess and exercise all the rights, powers and privileges of ownership,
including the right to execute consents and vote thereon, and to do any and all
acts and things necessary or advisable for the preservation, protection,
improvement and enhancement in value thereof.
(f) To borrow or raise moneys for any of the purposes
of the corporation and from time to time without limit as to amount, to draw,
make, accept, endorse, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the payment of any
thereof and of the interest thereon by mortgage upon or pledge, conveyance or
assignment in trust of the whole or any part of the property of the corporation,
whether at the time owned or thereafter acquired, and to sell, pledge or
otherwise dispose of such bonds or other obligations of the corporation for its
corporate purposes.
(g) To purchase, receive, take by grant, gift,
devise, bequest or otherwise, lease, or otherwise acquire, own, hold, improve,
employ, use and otherwise deal in and with real or personal property, or any
interest therein, wherever situated, and to sell, convey, lease, exchange,
transfer or otherwise dispose of, or mortgage or pledge, all or any of the
corporation's property and assets, or any interest therein, wherever situated.
(h) In general, to possess and exercise all the
powers and privileges granted by the General Corporation Law of Delaware or by
any other law of Delaware or by this Certificate of Incorporation together with
any powers incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
or purposes of the corporation.
(i) The business and purposes specified in the
foregoing clauses shall, except where otherwise expressed, be in limited or
restricted by reference to, or inference from, the terms of any other clause in
the Certificate of Incorporation, but the business and purposes specified in
each of the foregoing clauses of the article shall be regarded as independent
business and purposes.
FOURTH: The total number of the shares which the Corporation
shall have authority to issue is Fifty Million (50,000,000) shares and the par
value of each of such shares is one (1(cent)) cent amounting in the aggregate to
Five Hundred Thousand ($500,000) Dollars.
FIFTH: The name and place of residence of the incorporator
is as follows:
MAGELLAN PETROLEUM CORPORATION PANAMA CITY, PANAMA
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not
be subject to the payment of corporate debts to any extent whatever.
EIGHTH: In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized:
(a) To make, alter, amend and repeal the By-Laws of
the Corporation.
(b) To authorize and cause to be executed mortgages
and liens upon the real and personal property of the Corporation.
(c) To set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner in which it was created.
(d) By resolution passed by a majority of the whole
Board of Directors, to designate one or more committees, each committee to
consist of two or more of the directors of the Corporation, which, to the extent
provided in the resolution or in the By-Laws of the Corporation, shall have and
may exercise the powers 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 which may require it. Such committee or
committees shall have such name or names as may be stated in the By-Laws of the
Corporation or as may be determined from time to time by resolution adopted by
the Board of Directors.
(e) When and as authorized by the affirmative vote of
the holders of a majority of the stock issued and outstanding having voting
power given at a stockholders' meeting duly called upon such notice as is
required by statute, or when authorized by the written consent of the holders of
a majority of the voting stock issued and outstanding, to sell, lease or
exchange all or substantially all of the property and assets of the corporation,
including its good will and its corporate franchises, upon such terms and
conditions and for such consideration, which may consist in whole or in part of
money or property including shares of stock in, and/or other securities of, any
other corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the corporation.
In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the Board of Directors may exercise all
such powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the express provisions of the laws of the
State of Delaware, this Certificate of Incorporation and the By-Laws of the
Corporation.
NINTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-Laws of the Corporation.
Elections of directors need not be by written ballot unless the By-Laws of the
Corporation shall so provide.
<PAGE>
TENTH: No contract or other transaction between the
Corporation and any other corporation shall be affected or invalidated by the
fact that any one or more the directors of the Corporation is interested in or
is a director or officer of such other corporation, and any director or
directors, individually or jointly, or any partnership, firm or association of
which any such director or directors may be a member, may be a party or parties
to or may be interested in any contract or transaction of the corporation or in
which the Corporation is interested; no contract, act or transaction of the
Corporation with any person, partnership, firm, association or corporation shall
be affected or invalidated by the fact that any director or directors of the
Corporation is a party to or interested in such contract, act or transaction, or
is in any way connected with such person, firm, association or corporation; each
and every director of the Corporation who is a party to or otherwise interested
in or who is a director or officer or otherwise interested in any other
corporation which is a party to or otherwise interested in or who is a member of
or otherwise interested in any partnership, firm or association which is a party
to or otherwise interested in any contract, act or transaction of the
Corporation or in which the Corporation is interested may be counted in
determining the existence of a quorum at any meeting of the Board of Directors
of the Corporation which shall authorize any such contract, act or transaction
and may vote to authorize any such contract, act or transaction with like force
and effect as if he were not either directly or indirectly in any way interested
in such contract, act or transaction; and each and every such person,
corporation, partnership, firm or association and each and every person who may
become a director of the Corporation is hereby relieved of any liability by
reason of any director or directors contracting with the Corporation for the
benefit of himself or any firm, association or corporation in which he may be in
anywise interested; all provided, that the fact that any such director is so
interested shall have been disclosed or shall have been known to the Board of
Directors or a majority thereof.
ELEVENTH: This Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
TWELFTH: Any matter to be voted upon at any meeting of
stockholders must be approved, not only by a majority of the shares voted at
such meeting (or such greater number of shares as would otherwise be required by
law or this Certificate of Incorporation), but also by a majority of the
stockholders present in person or by proxy and entitled to vote thereon;
provided, however, except and only in the case of the election of directors, if
no candidate for one or more directorships receives both such majorities, and
any vacancies remain to be filled, each person who receives the majority in
number of the stockholders present in person or by proxy and voting thereon
shall be elected to fill such vacancies by virtue of having received such
majority. When shares are held by members or stockholders of another company,
association or similar entity and such persons act in concert, or when shares
are held by or for a group of stockholders whose members act in concert by
virtue of any contract, agreement or understanding, such persons shall be deemed
to be one stockholder for the purposes of this Article.
THIRTEENTH: (a) Higher Vote for Certain Business
Combinations. In addition to any affirmative vote of holders of all the capital
stock or any class or series of capital stock, of the Corporation required by
law or this Certificate, a Business Combination (as hereinafter defined) with or
upon a proposal by a Related Person (as hereinafter defined) shall require the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the voting power of all outstanding Voting Stock (as hereinafter
defined) of the Corporation and sixty-six and two-thirds percent (66 2/3%) of
the stockholders present in person or by proxy and entitled to vote thereon, in
each case voting together as a single class. Such affirmative votes shall be
required notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or the Board of Directors.
(b) When Higher Vote is Not Required. The provisions of this
Article shall not be applicable to a particular Business Combination, and such
Business Combination shall require only such affirmative vote as is required by
law and any other provision of this Certificate or the By-Laws of the
Corporation, if all of the conditions specified in any one of the following
Paragraphs (i), (ii) or (iii) are met:
(i) Approval by Directors. The Business Combination has
been approved by a majority of all the Continuing Directors (as hereinafter
defined); or
(ii) Combination with Subsidiary. The Business
Combination is solely between the Corporation and a subsidiary of the
Corporation and such Business Combination does not have the direct or indirect
effect set forth in Paragraph (c)(ii)(E) of this Article Thirteenth; or
<PAGE>
(iii) Price and Procedural Conditions. The proposed
Business Combination will be consummated within three years after the date the
Related Person became a Related Person (the "Determination Date") and all of the
following conditions have been met:
(A) The aggregate amount of (x) cash and (y)
fair market value (as of the date of the consummation of the Business
Combination) of consideration other than cash, to be received per share of
common or preferred stock of the Corporation in such Business Combination by
holders thereof shall be at least equal to the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Related Person for any shares of such class or series of stock
acquired by it; provided, that if either (a) the highest preferential amount per
share of a series of preferred stock to which the holders thereof would be
entitled in the event of any voluntary or involuntary liquidation, dissolution
or winding-up of the affairs of the Corporation (regardless of whether the
Business Combination to be consummated constitutes such an event) or (b) the
highest reported sales price per share for any shares of such series of
preferred stock on any national securities exchange on which such series is
traded and if not traded on any such exchange, the highest reported closing bid
quotation per share with respect to shares of such series on the National
Association of Securities Dealers, Inc. Automated Quotation System or on any
system then is use at any time after the Related Person became a holder of any
shares of common stock, is greater than such aggregate amount, holders of such
series of preferred stock shall receive an amount for each such share at least
equal to the greater of (a) or (b).
(B) The consideration to be received by holders
of a particular class or series of outstanding common or preferred stock shall
be in cash or in the same form as the Related Person has previously paid for
shares of such class or series of stock. If the Related Person has paid for
shares of any class or series of stock with varying forms of consideration, the
form of consideration given for such class or series of stock in the Business
Combination shall be either cash or the form used to acquire the largest number
of shares of such class or series of stock previously acquired by it.
(C) No Extraordinary Event (as hereinafter defined)
occurs after the Determination Date and prior to the consummation of the
Business Combination.
(D) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) is mailed to public stockholders of the Corporation at least 30
days prior to the consummation of such Business Combination (whether or not such
proxy or information statement is required to such Act or subsequent
provisions).
(c) Certain Definitions. For purposes of this Article
Thirteenth:
(i) A "person" shall mean any individual, firm,
corporation or other entity, or a group of "persons" acting or agreeing to act
together in the manner set forth in Rule 13d-5 under the Securities Exchange Act
of 1934, as in effect on March 4, 1986.
(ii) The term "Business Combination" shall mean any of
the following transactions, when entered into by the Corporation or a subsidiary
of the Corporation with, or upon a proposal by, a Related Person:
(A) the merger or consideration of the Corporation
or any subsidiary of the Corporation; or
(B) the sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one or a series of transactions) of any assets
of the Corporation or any subsidiary of the Corporation having an aggregate fair
market value of $5 million or more; or
(C) the issuance or transfer by the Corporation
or any subsidiary of the Corporation (in one or a series of transactions) of
securities of the Corporation or any subsidiary having an aggregate fair market
value of $5 million or more; or
(D) the adoption of a plan or proposal for the
liquidation or dissolution of the Corporation; or
(E) the reclassification of securities (including a
reverse stock split), recapitalization, consolidation or any other transaction
(whether or not involving a Related Person) which has the direct or indirect
effect of increasing the voting power, whether or not then exercisable, of a
Related Person in any class or series of capital stock of the Corporation or any
subsidiary of the Corporation; or
(F) any agreement, contract or other arrangement
providing directly or indirectly for any of the foregoing
<PAGE>
(iii) The term "Related Person" shall mean any person
(other than the Corporation, a subsidiary of the Corporation or any profit
sharing, employee stock ownership or other employee benefit plan of the
Corporation or of a subsidiary of the Corporation or any trustee of or fiduciary
with respect to any such plan acting in such capacity) that is the direct or
indirect beneficial owner (as defined in Rule 13d-3 and Rule 13d-5 under the
Securities Exchange Act of 1934, as in effect on March 4, 1986) of more than ten
percent (10%) of the outstanding Voting Stock of the Corporation, and any
Affiliate or Associate of any such person.
(iv) The term "Continuing Director" shall mean any
member of the Board of Directors who is not affiliated with a Related Person and
who was a member of the Board of Directors immediately prior to the time that
the Related Person became a Related Person, and any successor to a Continuing
Director who is not affiliated with the Related Person and is recommended to
succeed a Continuing Director by a majority of Continuing Directors who are then
members of the Board of Directors.
(v) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 under the Securities
Exchange Act of 1934, as in effect on March 4, 1986.
(vi) The term "Extraordinary Event" shall mean, as to
any Business Combination and Related Person, any of the following events that is
not approved by a majority of all Continuing Directors:
(A) any failure to declare and pay at the regular
date therefor any full quarterly dividend (whether or not cumulative) on
outstanding preferred stock; or
(B) any reduction in the annual rate of dividends
paid on the common stock (except as necessary to reflect any subdivision of the
common stock); or
(C) any failure to increase the annual rate of
dividends paid on the common stock as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization or any
similar transaction that has the effect of reducing the number of outstanding
shares of the common stock; or
(D) the receipt by the Related Person, after the
Determination Date, off a direct or indirect benefit (except proportionately as
a stockholder) from any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided by the
Corporation or any subsidiary of the Corporation, whether in anticipation of or
in connection with the Business Combination or otherwise.
(vii) The term "Voting Stock" shall mean all
outstanding shares of the common or preferred stock of the Corporation entitled
to vote generally and each reference to a proportion of Voting Stock shall refer
to shares having such proportion of the number of shares entitled to be cast.
(viii) A majority of all Continuing Directors shall
have the power to make all determinations with respect to this Article
Thirteenth, including, without limitation, the transactions that are Business
Combinations, the persons who are Related Persons, the time at which a Related
Person became a Related Person, and the fair market value of any assets,
securities or other property, and any such determinations of such directors
shall be conclusive and binding.
(d) No Effect on Fiduciary Obligations of Related Persons.
Nothing contained in this Article Thirteenth shall be construed to relieve any
Related Person from any fiduciary obligation imposed by law.
(e) Amendment, Repeal, etc. The affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of the Voting Stock of the Corporation and sixty-six and two-thirds
percent (66 2/3%) of the stockholders present in person or by proxy and entitled
to vote thereon, in each case voting together as a single class shall be
required in order to amend, repeal or adopt any provision inconsistent with this
Article Thirteenth.
FOURTEENTH: The By-Laws of this corporation may be altered,
amended or repealed by the vote of a majority of the directors at any regular or
special meeting of the board; provided notice of such proposed alteration,
amendment or repeal shall have been included in the notice of such meeting, or
shall have been waived in writing by all the directors, or at any regular or
special meeting of the board at which all of the directors are present, without
such notice or waiver of notice. Notwithstanding any other provision in the
Certificate of Incorporation to the contrary and subject to the rights of the
holders of any series of Preferred Stock then outstanding, the By-Laws of this
corporation may also be altered, amended or repealed by the stockholders at any
regular or special meeting called for that purpose by the favorable vote of
sixty-six and two-thirds percent (66 2/3%) of the voting power of all
outstanding voting stock of the corporation generally entitled to vote at such
meeting and sixty-six and two-thirds percent (66 2/3%) of the stockholders
present in person or by proxy and entitled to vote at such meeting.
<PAGE>
FIFTEENTH: A director of this Corporation shall not be
personally liable to the Corporation or any of its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law hereafter is amended, changed or modified in any way to further
eliminate or limit the liability of directors to the Corporation or its
stockholders or third parties, then directors of the Corporation, in addition to
the circumstances in which directors are not personally liable as set forth in
the preceding sentence, shall also not be personally liable to the Corporation
or its stockholders or third parties for monetary damages to such further extent
permitted by such amendment, change or modification.
Any repeal or modification of the foregoing paragraph shall
not adversely affect the rights of any director of the Corporation relating to
claims arising in connection with events which took place prior to the date of
such repeal or modification.
SIXTEENTH: The Corporation shall enter into appropriate
agreements with its directors and officers (and with such other employees and
agents as the Board of Directors deems appropriate in its sole and exclusive
discretion) to both indemnify them and advance to them the funds for litigation
expenses to the fullest extent permitted by the laws of the State of Delaware,
as the same presently exist or may hereafter be amended, changed or modified.
Any repeal or modification of the foregoing paragraph shall
not adversely affect the rights of any director or officer (or any such
employees or agents) of the Corporation relating to claims arising in connection
with events which took place prior to the date of such repeal or modification.
As Amdended
December 10, 1992
BY-LAWS
OF
MAGELLAN PETROLEUM CORPORATION
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of the corporation
shall be at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, Delaware.
SECTION 2. Other Offices. The corporation may also have other offices
at such other places within or without the State of Delaware as the board of
directors may from time to time determine.
ARTICLE II
Meeting of Stockholders
SECTION 1. Place of Meetings. All meetings of the stockholders of the
corporation may be held at the principal office of the corporation in the State
of Delaware, or at such other place or places, within or without the State of
Delaware, as the board of directors may from time to time determine.
SECTION 2.1. Annual Meeting.
The annual meeting of the stockholders for the election of Directors
and for the transaction of such other business as may properly come before the
meeting shall be held on such date as the board of directors shall each year
fix. The day, place and hour of each annual meeting shall be specified in the
notice of annual meeting. The meeting may be postponed or adjourned from time to
time and place to place until its business is completed.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the board
of directors, (b) otherwise properly brought before the meeting by or at the
direction of the board of directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, 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 at the
principal executive offices of the corporation, not less than sixty (60) days
nor more than ninety (90) days prior to the meeting; provided, however, that in
the event that less than seventy 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 so received not later than the close of business on the
tenth day following the date on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. For purposes of this
Section 2.1, public disclosure shall be deemed to have been made to stockholders
when disclosure of the date of the meeting is first made in a press release
reported by the Dow Jones News Services, Associated Press, Reuters Information
Services, Inc. or comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting;
(b) the name and address, as they appear on the corporation's books, of
the stockholder intending to propose such business;
(c) the class and number of shares of the corporation which are
beneficially owned by the stockholder;
(d) a representation that the stockholder is a holder of record of
capital stock of the corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to present such business;
<PAGE>
(e) any material interest of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 2.1. The presiding officer of an annual meeting shall,
if the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 2.1, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
SECTION 2.2. Notice of Stockholder Nominees.
Only persons who are nominated in accordance with the procedures set
forth in these By-Laws shall be eligible for election as directors. Nominations
of persons for election to the board of directors of the corporation may be made
at a meeting of stockholders (a) by or at the direction of the board of
directors or (b) by any stockholder of the corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures set
forth in this Section 2.2. Nominations by stockholders shall be made pursuant to
timely notice in writing to the Secretary of the corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not less than sixty (60) days nor
more than ninety (90) days prior to the meeting; provided, however, that in the
event that less than seventy days' (70) 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 so received not later than the close of business on the
10th day following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made. For purposes of this Section 2.2,
public disclosure shall be deemed to have been made to stockholders when
disclosure of the date of the meeting is first made in a press release reported
by the Dow Jones News Services, Associated Press, Reuters Information Services,
Inc. or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended.
Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of
stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice;
(c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; and
(d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the board of directors.
To be effective, each notice of intent to make a nomination given
hereunder shall be accompanied by the written consent of each nominee to being
named in a proxy statement and to serve as a director of the corporation if
elected.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in
these By-Laws. The presiding officer of the meeting shall, if the facts warrant,
determine and declare to the meeting that nomination was not made in accordance
with the procedures prescribed by these By-Laws, and if he should so determine,
he shall so declare to the meeting and the defective nomination shall be
disregarded.
SECTION 3. Special Meetings: Notice.
Special meetings of the stockholders, other than those required by
statute, may be called at any time by the Chairman of the board of directors, or
by the President of the corporation, or by the board of directors pursuant to a
resolution approved by a majority of the entire board of directors. Notice of
every special meeting, stating the time, place and purpose, shall be given by
mailing, postage prepaid, at least ten but not more than sixty days before each
such meeting, a copy of such notice addressed to each stockholder of the
corporation at his post office address as recorded on the books of the
corporation. The board of directors may postpone or reschedule any previously
scheduled special meeting.
<PAGE>
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
corporation's notice of meeting. Nominations of persons for election to the
board of directors may be made at a special meeting of stockholders at which
directors are to be selected pursuant to the notice of meeting (a) by or at the
direction of the board of directors or (b) by any stockholder of the corporation
who is a stockholder of record at the time of giving of notice provided for in
this By-Law, who shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in this By-Law. Nominations by stockholders of
persons for election to the board of directors may be made at such a special
meeting of stockholders if the stockholder's notice required by Article II,
Section 2.2 of these By-Laws shall be delivered to the Secretary at the
principal executive offices of the corporation not earlier than the 90th day
prior to such special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting or the 10th day following
the day on which public disclosure is first made of the date of the special
meeting and of the nominees proposed by the board of directors to be selected at
such meeting. For purposes of this Section 3, public disclosure shall be deemed
to have been made to stockholders when disclosure of the date of the meeting is
first made in a press release reported by the Dow Jones News Services,
Associated Press, Reuters Information Services, Inc. or comparable national news
service or in a document publicly filed by the corporation with the Securities
and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended.
SECTION 4. Notice of Meetings.
Notice of the time and place of the annual meeting and of any special
meeting of the stockholders shall be mailed or cabled by the Secretary to each
stockholder entitled to vote at such meeting, at his last known post office
address, at least ten (10) days prior to such meeting. The notice of a special
meeting shall also set forth the objects of the meeting. All or any of the
stockholders may in writing waive notice of any meeting, before or after the
holding of such meeting, and the presence of a stockholder at any meeting, in
person or by proxy, shall be deemed waiver of notice thereof by him. Meetings of
the stockholders may be held at any time and place and for any purpose, without
notice, when all of the stockholders entitled to vote at such meetings are
present in person or by proxy, or when all of such stockholders waive such
notice in writing and consent to the holding of such meetings.
SECTION 5. Quorum.
The holders for the time being of thirty-three and one third percent
(33 1/3%)of the total number of shares of stock issued and outstanding and
entitled to be voted at any meeting, present in person or by proxy, shall
constitute a quorum for the transaction of business, unless the representation
of a larger number shall be required by law. In the absence of a quorum, the
stockholders attending or represented at the time and place at which a meeting
shall have been called, may adjourn the meeting from time to time until a quorum
shall be present. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted by a
quorum of the stockholders at the meeting as originally convened.
SECTION 6. Voting at Stockholders' Meetings.
At all meetings of the stockholders, subject to the provisions of the
corporation's Certificate of Incorporation and subject to Section 8 of this
Article, each holder of stock of the corporation having the right to vote at
such meeting shall be entitled to one vote for each share standing registered in
his name on the record date for such meeting.
SECTION 7. Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established
for the meeting. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
SECTION 8. Manner of Voting.
All elections shall be by ballot, and any matter to be voted at any
meeting of stockholders must be approved, not only by a majority of the shares
voted at such meeting (or such greater number of shares as would otherwise be
required by law or the Certificate of Incorporation), but also by a majority of
the stockholders present in person or by proxy and entitled to vote thereon;
provided, however, except and only in the case of the election of directors, if
no candidate for one or more directorships receives both such majorities, and
any vacancies remain to be filled, each person who receives the majority in
number of the stockholders present in person or by proxy and voting thereon
shall be elected to fill such vacancies by virtue of having received such
majority. When shares are held by members or stockholders of another company,
association or similar entity and such persons act in concert, or when shares
are held by or for a group of stockholders whose members act in concert by
virtue of any contract, agreement or understanding, such persons shall be deemed
to be one stockholder for the purposes of this Section.
<PAGE>
SECTION 9. Stock Register.
The officer or agent having charge of the stock register shall keep a
complete alphabetical list of the stockholders entitled to vote, together with
the residence of each and the number of shares by each, which list and stock
register shall be kept on file at any office of the corporation or at the office
of any transfer agent or registrar of transfers appointed by the board of
directors. The stock register shall be the only evidence as to who are the
stockholders entitled to vote at any meeting of the stockholders thereof.
SECTION 10. Presiding Officer and Secretary. Conduct of Business.
Subject to Article IV, Section 2, the president, or in his absence, the
vice president, shall call meetings of the stockholders to order and shall act
as chairman of the meetings; but in the absence of the president and vice
president, the board of directors may appoint any stockholder to act as the
chairman of the meeting, and, in default of an appointment by the board of
directors of a chairman, the stockholders may elect a chairman to preside at the
meeting. The Secretary of the corporation shall act as Secretary of all meetings
of the stockholders, but in his absence the presiding officer may appoint any
person to act as Secretary of the meeting.
The presiding officer of any meeting of stockholders shall determine
the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
or her in order. The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at the meeting shall be
announced at the meeting.
ARTICLE III
Board of Directors
SECTION 1. Election and Removal of Directors.
(a) Number, Election and Terms. The powers of the corporation shall be
exercised by the board of directors, except such as are by law or by the
Certificate of Incorporation or by the By-Laws of the corporation reserved to
the stockholders. The board of directors shall consist of six (6) members, but
such number may be altered from time to time by an amendment of these By-Laws.
At the 1985 Annual Meeting of Stockholders, the directors shall be divided into
three classes, as nearly equal in number as possible, with the term of office of
the first class to expire at the 1986 Annual Meeting of Stockholders, the term
of office of the second class to expire at the 1987 Annual Meeting of
Stockholders and the term of office of the third class to expire at the 1988
Annual Meeting of Stockholders, or in each case thereafter when their respective
successors are elected and have qualified or upon their earlier death,
resignation or removal. At each Annual Meeting of Stockholders following such
initial classification and election, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the third succeeding Annual Meeting of Stockholders after their election, or in
each case thereafter when their respective successors are elected and have
qualified or upon their earlier death, resignation or removal. Directors need
not be stockholders.
(b) Newly Created Directorships and Vacancies. Subject to the rights of
the holders of any series of Preferred Stock then outstanding, newly created
directorships resulting from an increase in the authorized number of directors
or any vacancies in the board of directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall only be
filled by or in the manner directed by a majority vote of the directors then in
office, and directors so chosen shall hold office for a term expiring at the
Annual Meeting of Stockholders at which the term of the class to which they have
been elected expires. No decrease in the number of directors constituting the
board of directors shall shorten the term of any incumbent director.
(c) Removal. Notwithstanding any other provision in these By-Laws to
the contrary and subject to the rights of the holders of any series of Preferred
Stock then outstanding, any director, or the entire board of directors, may be
removed from office at any time, but only for cause and only by the affirmative
vote of at least a majority of the votes cast at a stockholders' meeting called
to consider such removal and a majority of the stockholders present in person or
by proxy and entitled to vote thereon.
SECTION 2. Quorum.
A majority of the total number of directors shall constitute a quorum
of the board of directors for the conduct of business of the corporation. In the
absence of a quorum the director or directors present in person, at the time and
place at which the meeting shall have been called, may adjourn the meeting from
time to time, and from place to place until a quorum shall be present. The act
of a majority of the directors present in person at a meeting at which a quorum
is present, shall be the act of the board of directors, except in situations
where the Delaware General Corporation Law imposes a different rule.
SECTION 3. Voting by Proxy.
Directors may not be represented and may not vote by proxy at
directors' meetings.
<PAGE>
SECTION 4. Regular Meetings.
Regular meetings of the board may be held upon such notice, or without
notice, as the board of directors may by resolution from time to time determine.
SECTION 5. Special Meetings.
Special meetings of the board shall be held whenever called by the
president, or a majority of the entire board of directors, on two (2) days'
notice to each director, either in person or by mail, telephone or by telegraph.
Special meetings of the board may be held for any purpose, without notice,
whenever all of the directors are present in person, or shall in writing waive
notice of and consent to the holding of such meeting.
SECTION 6. Place of Meeting.
Any meeting of the board of directors may be held at such place or
places as may from time to time be established by resolution of the board, or as
may be fixed in the notice of such meeting, or as may be agreed to in writing by
all the directors of the corporation.
SECTION 7. Compensation.
The board of directors shall have authority to fix fees of directors in
compensation for their service as directors and as members of special or
standing committees of the board of directors, including reasonable allowance of
expenses actually incurred in connection with their duties.
SECTION 8. Voting Securities Held by the Corporation.
The directors shall have power to determine who shall be entitled to
vote in the name and behalf of the corporation upon, or to assign and transfer,
any shares of stock, bonds, or other securities of other companies held by the
corporation, and the directors may designate an officer who shall have power to
appoint a person or persons to vote, assign or transfer any securities of other
companies held by the corporation.
SECTION 9. Indemnification Agreements.
The corporation shall enter into appropriate agreements with its
directors and officers (and with such other employees and agents as the board of
directors deems appropriate in its sole and exclusive discretion) both to
indemnify such directors and officers (and such other employees and agents, if
any) and to advance to such directors and officers (and such other employees and
agents, if any) the funds for litigation expenses to the fullest extent
permitted by the laws of the State of Delaware, as the same presently exist or
may hereafter be amended, changed or modified.
Any repeal or modification of the foregoing paragraph shall not
adversely affect the rights of any director of officer (or any such employee or
agent) of the corporation relating to claims arising in connection with events
which took place prior to the date of such repeal or modification.
ARTICLE IV
Officers
SECTION 1. Election, Term and Vacancies.
The officers of the corporation shall be a president, one or more vice
presidents, a secretary and a treasurer, all of whom shall be elected by the
board of directors. The board may also appoint such other officers and agents as
it may deem necessary, who shall have such authority and perform such duties as
may from time to time be prescribed by the board. Officers elected by the board
shall hold office for one year, or until their successors are elected and
qualified, provided, that any officer may be removed at any time by the board.
Vacancies occurring among the officers of the corporation shall be filled by the
board of directors. No officer need be a director and any person may hold two or
more offices, except those of president and vice president.
<PAGE>
SECTION 2. President.
The president shall be the chief executive officer of the corporation.
He shall preside at all meetings of the directors and stockholders at which he
is present. He shall have general management of the business of the corporation,
subject to the board of directors, and shall see that all orders and resolutions
of the board are carried into effect. He shall execute contracts and other
obligations authorized by the board, and may, without previous authority of the
board, make such contracts as the ordinary business of the corporation shall
require. He shall have the usual powers and duties vested in the office of
president of a corporation, but may delegate any of his powers to one or more of
the vice presidents. He shall have power to select and appoint all necessary
officers and servants of the corporation except the vice presidents, secretary
and treasurer, and such other officers as may be selected by the board of
directors. He shall have power to remove any officers and servants appointed by
him, and to make new appointments to fill vacancies in any such offices.
SECTION 3. Vice Presidents.
The vice presidents of the corporation shall be vested with such powers
and duties as the president or the board of directors may from time to time
decide. In the absence or inability of the president to serve, the vice
presidents shall be vested with all the powers of the president. The board of
directors shall decide the order in which the vice presidents shall succeed to
the powers and duties of the president during his absence.
SECTION 4. Secretary.
The Secretary shall attend all meetings of the stockholders, of the
board of directors and of any committees of the board of directors, and record
the votes and proceedings of such meetings in books to be kept for that purpose.
He shall keep the corporate seal in safe custody and affix it to any instrument
requiring the same. He shall attend to the giving and serving of notices of
meetings, and shall have charge of such books and papers as properly belong to
his office, or as may be committed to his care by the board of directors or
executive committee. He shall also perform such other duties as pertain to his
office or as may be required by the board of directors, or as may be delegated
to him from time to time by the president.
SECTION 5. Treasurer.
The treasurer shall have custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in banks
belonging to the corporation, and shall deposit all moneys and 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. He shall disburse the funds of the
corporation as may be ordered by the board or the president, taking proper
vouchers for such disbursements, and shall render to the president or board of
directors, whenever they require it, an account of all his transactions as
treasurer and of the financial condition of the company.
SECTION 6. Assistant Secretary and Assistant Treasurer.
The board of directors shall have power at any time to elect an
assistant secretary and/or an assistant treasurer of the corporation, or may at
any time authorize the president to appoint such officers. The assistant
secretary shall perform such duties as may be delegated to him by the Secretary,
or as may be required by the board of directors or the president, and shall in
the absence of the Secretary perform all the functions and have all the duties
and responsibilities of Secretary. The assistant treasurer shall perform such
duties as may be delegated to him by the treasurer, and shall also perform such
other duties as may be required by the board of directors or by the president.
In the absence of the treasurer, the assistant treasurer shall have all the
powers and all the duties and responsibilities of the treasurer. One person may
hold the officers of assistant secretary and assistant treasurer.
SECTION 7. Oaths and Bonds.
The board of directors may be resolution require any officers, agents
or employees of the corporation to give oaths or to furnish bonds for the
faithful performance of their respective duties.
SECTION 8. Signatures.
All checks, drafts or orders for the payment of money, and all
acceptances, bills of exchange and promissory notes may be signed by any officer
or officers of the corporation, or by any other person designated by resolution
of the board of directors.
<PAGE>
SECTION 9. Delegation of Duties.
In the event of death, resignation, retirement, disqualification,
disability, sickness, absence, removal from office or refusal to act of any
officer or agent of the corporation, or for any reason that the board of
directors may deem sufficient, the board of directors may delegate the powers
and duties of such officer or agent to any other officer or agent, or to any
director, for the time being.
ARTICLE V
Shares of Stock
SECTION 1. Certificates of Stock.
All certificates of shares of the capital stock of the corporation
shall be in such form, not inconsistent with the law and the Certificate of
Incorporation of the corporation, as may be approved by the board of directors,
and be signed by the president or vice president and by the Secretary of the
corporation. All certificates of stock shall be consecutively numbered, and the
names of the persons owning the shares represented thereby, together with the
number of such shares and the date of issue, shall be entered on the books of
the corporation.
SECTION 2. Registered Stockholders.
The corporation shall be entitled to treat the holder of record of any
share or shares of stock in this company as the holder in fact thereof, and
shall not be bound to recognize any equitable or other claim to or interest in
such shares on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of
Delaware.
SECTION 3. Cancelled and Lost Certificates.
All surrendered certificates of stock shall be cancelled, and no
certificate shall be issued until a like certificate for the same number of
shares shall have been surrendered and cancelled. Any person claiming a
certificate of stock to be lost or destroyed shall make an affidavit or
affirmation of that fact, and shall advertise the same in such manner as the
board of directors may require, and shall, if the board of directors so
required, give the corporation a bond of indemnity in such sum as they may
direct, whereupon a new certificate may be issued on the same tenor and for the
same number of shares as the one alleged to have been lost or destroyed.
SECTION 4. Transfer of Shares.
Transfer of stock shall be made on the books of the corporation by the
holder in person or by attorney, upon the surrender and cancellation of the
certificate or certificates for such shares; but the board of directors may
appoint a bank or trust company to act as the transfer agent or registrar of
transfers of such certificates.
SECTION 5. Addresses of Stockholders.
Every stockholder shall furnish the Secretary with an address to which
notices of meetings and all other notices may be addressed, but in default
thereof, such notices may be sent to stockholders at their last known address or
at the principal office of the corporation, except as otherwise provided in
these By-Laws.
SECTION 6. Regulations.
The board of directors shall have the power and authority to make such
rules and regulations as they may deem expedient governing the issue, transfer
and registration of the certificates for shares of the capital stock of the
corporation.
<PAGE>
SECTION 7. Record Date.
In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders, or to receive payment of
any dividend or other distribution or allotment of any rights or 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 a record
date, which record date shall not precede the date on which the resolution
fixing the record date is adopted and which record date shall not be more than
sixty (60) days nor less than ten (10) days before the date of any meeting of
stockholders, nor more than sixty (60) days prior to the time for such other
action as hereinbefore described; provided, however, that if no record date is
fixed by the board of directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the date next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held, and, for determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of rights or
to exercise any rights of change, conversion or exchange of stock or for any
other purpose, the record date shall be at the close of business on the day on
which the board of directors adopts a resolution relating thereto.
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.
In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the board of
directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
Secretary, request the board of directors to fix a record date. The board of
directors shall promptly, but in all events within ten (10) days after the date
on which such a request is received, adopt a resolution fixing the record date.
If no record date has been fixed by the board of directors within ten (10) days
of the date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the board of directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or any officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the board of directors and prior action by the board of
directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the board of
directors adopts the resolution taking such prior action.
ARTICLE VI
Dividends
SECTION 1. Dividends and Reserves.
Before payment of any dividend or making any distribution of profits,
the board of directors may set aside out of the surplus or net profits of the
corporation, such sum or sums as in their absolute discretion they may deem
proper as a reserve fund for depreciation, renewal, repair and maintenance or
for such other purposes as the directors shall think conducive to the interests
of the corporation. Dividends upon the issued and outstanding stock of the
corporation may be declared at any regular or special meeting of the board of
directors.
SECTION 2. Stock Dividends.
When the directors shall so determine, dividends may be paid in stock
of the corporation; provided the stock requisite for such purpose shall be
authorized and provided, if such stock has not theretofore been issued, there
shall be transferred from surplus to the capital of the corporation an amount at
least equal to the minimum amount for which such stock could be lawfully issued.
<PAGE>
ARTICLE VII
Fiscal Year
The fiscal year of the corporation shall end on the last day of June in
each year.
ARTICLE VIII
Seal
The corporate seal is, and until otherwise ordered and directed by the
board of directors shall be, an impression upon paper or wax, bearing the name
of the corporation, the year of its organization and the words "Corporate Seal
Delaware."
ARTICLE IX
Amendments
These By-Laws may be altered, amended or repealed by the vote of a
majority of the board of directors at any regular or special meeting of the
board; provided notice of such proposed alteration, amendment or repeal shall
have been included in the notice of such meeting, or shall have been waived in
writing by all the directors, or at any regular or special meeting of the board
at which all of the directors are present, without such notice or waiver of
notice. Notwithstanding any other provision in these By-Laws to the contrary and
subject to the rights of the holders of any series of Preferred Stock then
outstanding, these By-Laws may also be altered, amended or repealed by the
stockholders at any regular or special meeting called for that purpose by the
favorable vote of sixty-six and two-thirds percent (66 2/3%) of the voting power
of all outstanding voting stock of the corporation generally entitled to vote at
such meeting and sixty-six and two-thirds percent (66 2/3%) of the stockholders
present in person or by proxy and entitled to vote at such meeting.
MURTHA, CULLINA, RICHTER AND PINNEY LLP
CITYPLACE I
185 ASYLUM STREET
HARTFORD, CONNECTICUT 06103-3469
NEW HAVEN OFFICE
TELEPHONE (860) 240-6000 WHITNEY GROVE SQUARE
FACSIMILE (860) 240-6150 TWO WHITNEY AVENUE
P.O. BOX 704
NEW HAVEN, CT 06503-0704
TELEPHONE (203) 772-7700
January 13, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
RE: Magellan Petroleum Corporation
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Magellan Petroleum Corporation (the
"Company") in connection with the proposed sale and issuance by the Company of
up to an aggregate of 1,000,000 shares of the Company's Common Stock, par value
$0.01 per share (the "Shares"), pursuant to the Company's 1998 Stock Option Plan
(the "Plan"), which is the subject of a Registration Statement on Form S-8 filed
by the Company under the Securities Act of 1933, as amended.
We are familiar with the action taken by the Company to date with
respect to the adoption of the Plan, and the reservation of the Shares for
issuance under the Plan. We have examined originals, or copies certified or
otherwise authenticated to our satisfaction, of such corporate records of the
Company, agreements and other instruments, certificates of public officials,
officers and representatives of the Company and such other documents as we have
deemed necessary as a basis for the opinions hereinafter expressed. We are
furnishing this opinion in connection with the filing of the Registration
Statement.
Based upon the foregoing, we are of the opinion that the shares of
Common Stock proposed to be issued and sold by the Company under the
Registration Statement pursuant to the Plan, when issued in accordance with the
terms of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as an exhibit in the
Registration Statement and to the reference to our firm under the caption "Legal
Opinion" in the prospectus constituting a part of the Registration Statement.
Very truly yours,
MURTHA, CULLINA, RICHTER AND PINNEY LLP
By /s/ Timothy L. Largay
Timothy L. Largay
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Magellan Petroleum Corporation 1998 Stock Option Plan of
our report dated September 11, 1998, with respect to the consolidated financial
statements of Magellan Petroleum Corporation included in its Annual Report (Form
10-K) for the year ended June 30, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Stamford, Connecticut
January 12, 1999
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does
hereby appoint and constitute James R. Joyce and Timothy L. Largay, and each of
them, as his agent and attorney-in-fact to execute in his name, place and stead
(whether on behalf of the undersigned individually or as an officer or director
of Magellan Petroleum Corporation or otherwise) the Registration Statement on
Form S-8 of Magellan Petroleum Corporation, all amendments thereto, and any
additional Registration Statements on Form S-8 with respect to the Magellan
Petroleum Corporation 1998 Stock Option Plan, and all instruments necessary or
advisable in connection with such Registration Statement or amendments; and to
file such Registration Statement and any amendments thereto with the Securities
and Exchange Commission. Each of the said attorneys shall have the power to act
hereunder with or without the other.
IN WITNESS WHEREOF, the undersigned have executed this
instrument this 14th day of January, 1999.
/s/ Dennis D. Benbow
------------------------------
Dennis D. Benbow
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does
hereby appoint and constitute James R. Joyce and Timothy L. Largay, and each of
them, as his agent and attorney-in-fact to execute in his name, place and stead
(whether on behalf of the undersigned individually or as an officer or director
of Magellan Petroleum Corporation or otherwise) the Registration Statement on
Form S-8 of Magellan Petroleum Corporation, all amendments thereto, and any
additional Registration Statements on Form S-8 with respect to the Magellan
Petroleum Corporation 1998 Stock Option Plan, and all instruments necessary or
advisable in connection with such Registration Statement or amendments; and to
file such Registration Statement and any amendments thereto with the Securities
and Exchange Commission. Each of the said attorneys shall have the power to act
hereunder with or without the other.
IN WITNESS WHEREOF, the undersigned have executed this
instrument this 14th day of January, 1999.
/s/ Benjamin W. Heath
------------------------------
Benjamin W. Heath
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does
hereby appoint and constitute James R. Joyce as his agent and attorney-in-fact
to execute in his name, place and stead (whether on behalf of the undersigned
individually or as an officer or director of Magellan Petroleum Corporation or
otherwise) the Registration Statement on Form S-8 of Magellan Petroleum
Corporation, all amendments thereto, and any additional Registration Statements
on Form S-8 with respect to the Magellan Petroleum Corporation 1998 Stock Option
Plan, and all instruments necessary or advisable in connection with such
Registration Statement or amendments; and to file such Registration Statement
and any amendments thereto with the Securities and Exchange Commission. Each of
the said attorneys shall have the power to act hereunder with or without the
other.
IN WITNESS WHEREOF, the undersigned have executed this
instrument this 14th day of January, 1999.
/s/ Timothy L. Largay
------------------------------
Timothy L. Largay
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does
hereby appoint and constitute James R. Joyce and Timothy L. Largay, and each of
them, as his agent and attorney-in-fact to execute in his name, place and stead
(whether on behalf of the undersigned individually or as an officer or director
of Magellan Petroleum Corporation or otherwise) the Registration Statement on
Form S-8 of Magellan Petroleum Corporation, all amendments thereto, and any
additional Registration Statements on Form S-8 with respect to the Magellan
Petroleum Corporation 1998 Stock Option Plan, and all instruments necessary or
advisable in connection with such Registration Statement or amendments; and to
file such Registration Statement and any amendments thereto with the Securities
and Exchange Commission. Each of the said attorneys shall have the power to act
hereunder with or without the other.
IN WITNESS WHEREOF, the undersigned have executed this
instrument this 1st day of January, 1999.
/s/ Walter McCann
------------------------------
Walter McCann
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does
hereby appoint and constitute James R. Joyce and Timothy L. Largay, and each of
them, as his agent and attorney-in-fact to execute in his name, place and stead
(whether on behalf of the undersigned individually or as an officer or director
of Magellan Petroleum Corporation or otherwise) the Registration Statement on
Form S-8 of Magellan Petroleum Corporation, all amendments thereto, and any
additional Registration Statements on Form S-8 with respect to the Magellan
Petroleum Corporation 1998 Stock Option Plan, and all instruments necessary or
advisable in connection with such Registration Statement or amendments; and to
file such Registration Statement and any amendments thereto with the Securities
and Exchange Commission. Each of the said attorneys shall have the power to act
hereunder with or without the other.
IN WITNESS WHEREOF, the undersigned have executed this
instrument this 14th day of January, 1999.
/s/ Ronald P. Pettirossi
------------------------------
Ronald P. Pettirossi
