SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12 (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Abraxas Petroleum Corporation
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(Exact name of registrant as specified in its charter)
Nevada 74-2584033
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(State of incorporation or organization) (IRS Employer
Identification No.)
500 Northeast Loop 1604, Suite 100 San Antonio, Texas 78232
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Common Stock, par value $.01 per share
(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of Class)
Name of each exchange on which each class is to be registered
The American Stock Exchange
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
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Item 1. Description of Securities to be Registered.
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The class of securities to be registered hereby is the common stock,
par value $.01 per share, of Abraxas. The following is a description of the
common stock of Abraxas.
Abraxas is authorized to issue 200,000,000 shares of common stock, par
value $.01 per share. At August 10, 2000, there were 22,600,116 shares of
Abraxas common stock issued and outstanding. Holders of the common stock are
entitled to cast one vote for each share held of record on all matters submitted
to a vote of stockholders and are not entitled to cumulate votes for the
election of directors. Holders of common stock do not have preemptive rights to
subscribe for additional shares of common stock issued by Abraxas.
Holders of the common stock are entitled to receive dividends as may be
declared by the Board of Directors out of funds legally available therefor.
Under the terms of the first lien notes indenture and the second lien notes
indenture, Abraxas may not pay dividends on shares of the common stock. In the
event of liquidation, holders of the common stock are entitled to share pro rata
in any distribution of Abraxas' assets remaining after payment of liabilities,
subject to the preferences and rights of the holders of any outstanding shares
of Preferred Stock. All of the outstanding shares of the common stock are fully
paid and nonassessable.
References herein to Abraxas' common stock include the common share
purchase rights distributed by Abraxas to its stockholders on November 17, 1994
as long as they trade with the common stock. See "-- Stockholder Rights Plan".
Anti-takeover Effects of Certain Provisions of the Articles of
Incorporation and Bylaws
Abraxas' Articles of Incorporation and Bylaws provide for the Board of
Directors to be divided into three classes of directors serving staggered
three-year terms. As a result, approximately one-third of the Board of Directors
will be elected each year. The Articles of Incorporation and Bylaws provide that
the Board of Directors will consist of not less than three nor more than twelve
members, with the exact number to be determined from time to time by the
affirmative vote of a majority of directors then in office. The Board of
Directors, and not the stockholders, has the authority to determine the number
of directors, and could prevent any stockholder from obtaining majority
representation on Abraxas' Board of Directors by enlarging the Board of
Directors and by filling the new directorships with the stockholder's own
nominees. In addition, directors may be removed by the stockholders only for
cause.
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The Articles of Incorporation and Bylaws provide that special meetings
of stockholders of Abraxas may be called only by the Chairman of the Board, the
President or a majority of the members of the Board of Directors. This provision
may make it more difficult for stockholders to take actions opposed by the Board
of Directors.
The Articles of Incorporation and Bylaws provide that any action
required to be taken or which may be taken by holders of Abraxas common stock
must be effected at a duly called annual or special meeting of such holders, and
may not be taken by any written consent of such stockholders. These provisions
may have the effect of delaying consideration of a stockholder proposal until
the next annual meeting unless a special meeting is called by the persons set
forth above. The provisions of the Articles of Incorporation and Bylaws
prohibiting stockholder action by written consent could prevent the holders of a
majority of the voting power of Abraxas from using the written consent procedure
to take stockholder action and taking action by consent without giving all the
stockholders of Abraxas entitled to vote on a proposed action the opportunity to
participate in determining such proposed action.
Stockholder Rights Plan
On November 17, 1994, the Board of Directors of Abraxas adopted a
stockholder rights plan (the "Stockholder Rights Plan"). Under the terms of the
Stockholder Rights Plan, the Board of Directors of Abraxas declared a dividend
of one common share purchase right ("Stockholder Right") on each share of the
Abraxas common stock outstanding on November 17, 1994. Each Stockholder Right
entitles the holder thereof to buy one share of Abraxas common stock at an
exercise price of $40 per share, subject to adjustment.
The Stockholder Rights are not exercisable until the occurrence of
specified events. Upon the occurrence of such an event (which events are
generally those which would signify the commencement of a hostile bid to acquire
Abraxas), the Stockholder Rights then become exercisable (unless redeemed by the
Board of Directors) for a number of shares of Abraxas common stock having a
market value of four times the exercise price of the Stockholder Right. If the
acquiror were to conclude the acquisition of Abraxas, the Stockholder Rights
would then become exercisable for shares of the controlling/surviving
corporation having a value of four times the exercise price of the Stockholder
Rights. If the Stockholder Rights were exercised at any time, significant
dilution would result, thus making the acquisition prohibitively expensive for
the acquiror. In order to encourage a bidder to negotiate with the Board of
Directors, the Stockholder Rights Plan provides that the Stockholder Rights may
be redeemed under prescribed circumstances by the Board of Directors.
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The Stockholder Rights are not intended to prevent a takeover of
Abraxas and will not interfere with any tender offer or business combination
approved by the Board of Directors. The Stockholder Rights Plan is intended to
protect the stockholders in the event of (a) an unsolicited offer to acquire
Abraxas, including offers that do not treat all stockholders equally, (b) the
acquisition in the open market of shares constituting control of Abraxas without
offering fair value to all stockholders and (c) other coercive takeover tactics
which could impair the Board's ability to fully represent the interests of the
stockholders.
Anti-Takeover Statutes
The Nevada General Corporation Law (the "Nevada GCL") contains two
provisions, described below as "Combination Provisions" and the "Control Share
Act," that may make more difficult the accomplishment of unsolicited or hostile
attempts to acquire control of a corporation through certain types of
transactions.
Restrictions on Certain Combinations Between Nevada Resident Corporations and
Interested Stockholders
The Nevada GCL includes certain provisions (the "Combination
Provisions") prohibiting certain "combinations" (generally defined to include
certain mergers, disposition of assets transactions, and share issuance or
transfer transactions) between a resident domestic corporation and an
"interested stockholder" (generally defined to be the beneficial owner of 10% or
more of the voting power of the outstanding shares of the corporation), except
those combinations which are approved by the board of directors before the
interested stockholder first obtained a 10% interest in the corporation's stock.
There are additional exceptions to the prohibition, which apply to combinations
if they occur more than three years after the interested stockholder's date of
acquiring shares. The Combination Provisions apply unless the corporation elects
against their application in its original articles of incorporation or an
amendment thereto, or in its bylaws. Abraxas' Articles of Incorporation and
Bylaws do not currently contain a provision rendering the Combination Provisions
inapplicable.
Nevada Control Share Act
Nevada's Control Share Acquisition Act (the "Control Share Act")
imposes procedural hurdles on and curtails greenmail practices of corporate
raiders. The Control Share Act temporarily disenfranchises the voting power of
"control shares" of a person or group ("Acquiring Person") purchasing a
"controlling interest" in an "issuing corporation" (as defined in the Nevada
GCL) not opting out of the Control Share Act. In this regard, the Control Share
Act will apply to an "issuing corporation" unless, before an acquisition is
made, the articles of incorporation or bylaws in effect on the tenth day
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following the acquisition of a controlling interest provide that it is
inapplicable. Abraxas' Articles of Incorporation and Bylaws do not currently
contain a provision rendering the Control Share Act inapplicable.
Under the Control Share Act, an "issuing corporation" is a corporation
organized in Nevada which has 200 or more stockholders, at least 100 of whom are
stockholders of record (which for this purpose includes registered and
beneficial owners) and residents of Nevada, and which does business in Nevada
directly or through an affiliated company. The status of Abraxas at the time of
the occurrence of a transaction governed by the Control Share Act (assuming that
Abraxas' Articles of Incorporation or Bylaws have not theretofore been amended
to include an opting out provision) would determine whether the Control Share
Act is applicable.
The Control Share Act requires an Acquiring Person to take certain
procedural steps before he or it can obtain the full voting power of the control
shares. "Control shares" are the shares of a corporation (1) acquired or offered
to be acquired which will enable the Acquiring Person to own a "controlling
interest," and (2) acquired within 90 days immediately preceding that date. A
"controlling interest" is defined as the ownership of shares which would enable
the Acquiring Person to exercise certain graduated amounts (beginning with
one-fifth) of all voting power of the corporation. The Acquiring Person may not
vote any control shares without first obtaining approval from the stockholders
not characterized as "interested stockholders" (as defined below).
To obtain voting rights in control shares, the Acquiring Person must
file a statement at the principal office of the issuer ("Offeror's Statement")
setting forth certain information about the acquisition or intended acquisition
of stock. The Offeror's Statement may also request a special meeting of
stockholders to determine the voting Rights to be accorded to the Acquiring
Person. A special stockholders' meeting must then be held at the Acquiring
Person's expense within 30 to 50 days after the Offeror's Statement is filed. If
a special meeting is not requested by the Acquiring Person, the matter will be
addressed at the next regular or special meeting of stockholders.
At the special or annual meeting at which the issue of voting rights of
control shares will be addressed, "interested stockholders" may not vote on the
question of granting voting rights to control the corporation or its parent
unless the articles of incorporation of the issuing corporation provide
otherwise. Abraxas' Articles of Incorporation do not currently contain a
provision allowing for such voting power.
If full voting power is granted to the Acquiring Person by the
disinterested stockholders, and the Acquiring Person has acquired control shares
with a majority or more of the voting power, then (unless otherwise provided in
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the articles of incorporation or bylaws in effect on the tenth day following the
acquisition of a controlling interest) all stockholders of record, other than
the Acquiring Person, who have not voted in favor of authorizing voting rights
for the control shares, must be sent a notice advising them of the fact and of
their right to receive "fair value" for their shares. Abraxas' Articles of
Incorporation and Bylaws do not provide otherwise. Within 20 days of the mailing
of the notice, any such stockholder may demand to receive from the corporation
the "fair value" for all or part of his shares. "Fair value" is defined in the
Control Share Act as "not less than the highest price per share paid by the
Acquiring Person in an acquisition."
The Control Share Act permits a corporation to redeem the control
shares in the following two instances, if so provided in the articles of
incorporation or bylaws of the corporation in effect on the tenth day following
the acquisition of a controlling interest: (1) if the Acquiring Person fails to
deliver the Offeror's Statement to the corporation within 10 days after the
Acquiring Person's acquisition of the control shares; or (2) an Offeror's
Statement is delivered, but the control shares are not accorded full voting
rights by the stockholders. Abraxas' Articles of Incorporation and Bylaws do not
address this matter.
Item 2. Exhibits.
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3.1 Articles of Incorporation of Abraxas. (Filed as Exhibit 3.1 to
Abraxas' Registration Statement on Form S-4, No. 333-36565 (the
"S-4 Registration Statement")).
3.2 Articles of Amendment to the Articles of Incorporation of Abraxas
dated October 22, 1990 (Filed as Exhibit 3.3 to the S-4
Registration Statement).
3.3 Articles of Amendment to the Articles of Incorporation of Abraxas
dated December 18, 1990. (Filed as Exhibit 3.4 to the S-4
Registration Statement).
3.4 Articles of Amendment to the Articles of Incorporation of Abraxas
dated June 8, 1995. (Filed as Exhibit 3.4 to Abraxas'
Registration Statement on Form S-3, No. 333-00398 (the "S-3
Registration Statement")).
3.5 Amended and Restated Bylaws of Abraxas. (Filed as Exhibit 3.5 to
the S-3 Registration Statement).
4.1 Specimen Common Stock Certificate of Abraxas. (Filed as Exhibit
4.1 to the S-4 Registration Statement).
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4.2 Rights Agreement dated as of December 6, 1994 between Abraxas and
First Union National Bank of North Carolina ("FUNB"). (Filed as
Exhibit 4.1 to Abraxas' Registration Statement on Form 8-A filed
on December 6, 1994).
4.3 Amendment to Rights Agreement dated as of July 14, 1997 by and
between Abraxas and American Stock Transfer and Trust Company
(Filed as Exhibit 1 to Amendment No. 1 to Abraxas' Registration
Statement on Form 8-A filed on August 20, 1997).
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Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
Date: August 17, 2000.
ABRAXAS PETROLEUM CORPORATION
By: s/s Chris E. Williford
Chris E. Williford
Executive Vice President, Chief Financial
Officer and Treasurer
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