<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 1
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
SANTA FE SNYDER CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-2722169
(State of incorporation or organization) (I.R.S. Employer Identification No.)
1616 SOUTH VOSS ROAD
SUITE NO. 1000
HOUSTON, TEXAS 77057
(address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<S> <C>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED: EACH CLASS IS TO BE REGISTERED:
Rights to Purchase Series A New York Stock Exchange, Inc.
Junior Participating Preferred Stock
If this Form relates to the registration of a class If this Form relates to the registration of a
of securities pursuant to Section 12(b) of the class of securities pursuant to Section 12(g) of
Exchange Act and is effective pursuant to the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following General Instruction A.(d), check the
box. [X] following box. [ ]
</TABLE>
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None.
<PAGE> 2
This Amendment to a Registration Statement on Form 8-A/A amends
the Registration Statement on Form 8-A filed by Santa Fe Energy Resources, Inc.,
predecessor to Santa Fe Snyder Corporation (the "Company") on February 28, 1997
(the "Form 8-A") with respect to the preferred share purchase rights (the
"Rights") declared as a dividend on the Common Stock of the Company. Each Right
entitles the registered holder to purchase from the Company one one-hundredth of
a share of Series A Junior Participating Preferred Stock of the Company (the
"Preferred Stock") pursuant to the Rights Agreement dated as of March 3, 1997
(the "Rights Agreement"). On May 5, 1999, the Board of Directors of the Company
amended the Rights Agreement and the Summary of Rights to Purchase Preferred
Shares to correct a typographical error in the par value of the Preferred Stock,
a typographical error in Section 11 regarding mechanisms used to adjust the
Purchase Price of the Preferred Shares, and to reflect the merger of Snyder Oil
Corporation with and into the Company, which occurred on May 5, 1999.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Item 1 of the Form 8-A is amended and restated in its entirety by
substituting the following:
SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES
On February 19, 1997, the Board of Directors of Santa Fe Energy
Resources, Inc., the predecessor of Santa Fe Snyder Corporation (the "Company")
declared a dividend of one preferred share purchase right (a "Right") for each
outstanding share of common stock, par value $.01 per share, of the Company (the
"Common Stock"). The dividend was paid on March 3, 1997 (the "Record Date") to
the stockholders of record on that date. Each Right entitles the registered
holder to purchase from the Company one one-hundredth of a share of Series A
Junior Participating Preferred Stock, par value $.01 per share, of the Company
(the "Preferred Shares") at a price of $42.00 (subject to adjustment as provided
in the Rights Agreement) (the "Purchase Price"). The description and terms of
the Rights are set forth in a Rights Agreement (the "Rights Agreement") between
the Company and First Chicago Trust Company of New York, as Rights Agent (the
"Rights Agent").
Until the earlier to occur of (i) 10 business days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired beneficial ownership of 15% or more of the
outstanding Common Stock or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors of the Company prior to such time
as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding Common Stock
(the earlier of such dates being the "Distribution Date"), the Rights will be
evidenced, with respect to any of the Common Stock certificates outstanding as
of the Record Date, by such Common Stock certificate with a copy of this Summary
of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the Common Stock. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Stock certificates issued
after the Record Date upon transfer or new issuance of Common Stock will contain
a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Stock outstanding as of
the Record Date, even without such notation or a copy of this Summary of Rights
being attached thereto, will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
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The Rights are not exercisable until the Distribution Date. The Rights
will expire at 5:00 p.m., Houston, Texas time on July 25, 1999 (the "Final
Expiration Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each case, as
described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares; (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then-current market price of the Preferred Shares; or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividend payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths of
a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date. If the Company shall pay any dividend or distribution to the
holders of its Common Stock consisting of evidences of indebtedness or assets
(excluding quarterly cash dividends) prior to the Distribution Date, then the
Purchase Price is also subject to adjustment.
Preferred Shares purchasable upon exercise of the Rights will be
nonredeemable. Each Preferred Share will have a minimum preferential quarterly
dividend rate of $1.00 per share, but will be entitled to an aggregate dividend
of 100 times the dividend declared on the Common Stock. In the event of
liquidation, the holders of the Preferred Shares will receive a preferential
liquidation payment equal to the greater of $1.00 or 100 times the payment made
per share of Common Stock. Each Preferred Share will have 100 votes, voting
together with the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which Common Stock are exchanged, each
Preferred Share will be entitled to receive 100 times the amount received per
share of Common Stock. These rights are protected by customary antidilution
provisions.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold after the first public announcement that a person or group has
become an Acquiring Person, proper provision will be made so that each holder of
a Right other than Rights beneficially owned by an Acquiring Person (which will
be void) will upon exercise have the right to receive, upon the exercise thereof
at the then current exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right. In the event that any
person or group of affiliated or associated persons becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter be void), will
upon exercise have the right to receive upon exercise that number of shares of
Common Stock having a market value of two times the exercise price of the Right.
At any time after the first public announcement that any person or group
has become an Acquiring Person and prior to the acquisition by such person or
group of 50% or more of the outstanding Common Stock, the Board of Directors of
the Company may exchange the Rights (other than Rights owned by such person or
group which will have become void), in whole or in part, at an exchange ratio of
one share of Common Stock, or one one-hundredth of a
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<PAGE> 4
Preferred Share (or of a share of a class or series of the Company's Preferred
Shares having equivalent rights, preferences and privileges), per Right (subject
to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and, in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the close of business on the 10th business day
after the public announcement that an Acquiring Person has become such, the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $0.01 per Right (the "Redemption Price"). The redemption of
the Rights may be made effective at such time on such basis with such conditions
as the Board of Directors in its sole discretion may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive the Redemption
Price.
For so long as the Rights are then redeemable, the Company may in its
sole and absolute discretion amend the Rights Agreement without the consent of
the holders of the Rights, except that no amendment can be made to reduce the
Redemption price. At such time as the Rights have become non-redeemable, the
terms of the Rights may be amended by the Board of Directors of the Company
without the consent of the holders of the Rights, except that (i) no amendment
can be made to reduce the Redemption Price, (ii) no such amendment may adversely
affect the interest of the holders of the Rights and (iii) the redemption right
cannot be reinstated.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
February 28, 1997. A copy of the First Amendment to the Rights Agreement has
been filed with the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A/A dated May 11, 1999. Copies of the Rights
Agreement and the First Amendment to the Rights Agreement are available free of
charge from the Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement and the First Amendment to the Rights Agreement, which are hereby
incorporated herein by reference.
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<PAGE> 5
ITEM 2. EXHIBITS
The following exhibits to this Registration Statement on Form 8-A/A are
either filed herewith or are incorporated by reference from the documents
specified, which have been filed with the Securities and Exchange Commission.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER Title
------ -----
<S> <C>
3.1 Restated Certificate of Incorporation (including Certificate of
Merger reflecting the merger of Snyder Oil Corporation with and
into Santa Fe Energy Resources, Inc., dated May 5, 1999;
Certificate of Designations of Series A Junior Participating
Preferred Stock; and Certificate of Increase of Number of
Shares of Series A Junior Participating Preferred Stock of
Santa Fe Snyder Corporation, dated May 5, 1999).
3.2 Amended Bylaws, as amended on April 20, 1990, February 26,
1993, September 1, 1998 and May 5, 1999.
4.1 First Amendment to the Rights Agreement between Santa Fe Snyder
Corporation, as successor to Santa Fe Energy Resources, Inc.
and First Chicago Trust Company of New York, as Trustee, dated
as of May 5, 1999, which includes, as Annex I thereto, the
Summary of Right to Purchase Preferred Shares, as Annex II
thereto, the Form of Right Certificate, and as Annex III
thereto, the Certificate of Increase of Authorized Number of
Shares of Series A Junior Participating Preferred Stock of
Santa Fe Snyder Corporation.
</TABLE>
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<PAGE> 6
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: May 11, 1999
SANTA FE SNYDER CORPORATION
By: /s/ Mark A. Older
------------------------
Name: Mark A. Older
Title: Secretary
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<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER TITLE
---------- -----
<S> <C>
3.1 Restated Certificate of Incorporation (including Certificate of
Merger reflecting the merger of Snyder Oil Corporation with and
into Santa Fe Energy Resources, Inc., dated May 5, 1999;
Certificate of Designations of Series A Junior Participating
Preferred Stock; and Certificate of Increase of Number of
Shares of Series A Junior Participating Preferred Stock of
Santa Fe Snyder Corporation, dated May 5, 1999).
3.2 Amended Bylaws, as amended on April 20, 1990, February 26,
1993, September 1, 1998 and May 5, 1999.
4.1 First Amendment to the Rights Agreement between Santa Fe Snyder
Corporation, as successor to Santa Fe Energy Resources, Inc.
and First Chicago Trust Company of New York, as Trustee, dated
as of May 5, 1999, which includes, as Annex I thereto, the
Summary of Right to Purchase Preferred Shares, as Annex II
thereto, the Form of Right Certificate, and as Annex III
thereto, the Certificate of Increase of Authorized Number of
Shares of Series A Junior Participating Preferred Stock of
Santa Fe Snyder Corporation.
</TABLE>
<PAGE> 1
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
SANTA FE NATURAL RESOURCES, INC.
The original Certificate of Incorporation of Santa Fe Natural
Resources, Inc. was filed with the Secretary of State of the State of Delaware
on August 18, 1971. The original Certificate of Incorporation is hereby amended
and restated to read in its entirety as follows:
FIRST: The name of the corporation (hereinafter referred to as the
"Corporation") is: Santa Fe Energy Resources, Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, in the city of Wilmington, County of New
Castle. The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 250,000,000, of which
50,000,000 shares shall be Preferred Stock, par value $.01 per share, and
200,000,000 shares shall be Common Stock, par value $.01 per share.
A. Preferred Stock. (1) The Preferred Stock may be issued from
time to time in one or more series and in such amounts as may be
determined by the Board of Directors. The voting powers, designations,
preferences and relative, participating, optional or other special
rights, if any, and the qualifications, limitations or restrictions
thereof, if any, of the Preferred Stock of each series shall be such as
are fixed by the Board of Directors, authority so to do being hereby
expressly granted, and as are stated and expressed in a resolution or
resolutions adopted by the Board of Directors providing for the issue
of such series of Preferred Stock (herein called the "Directors'
Resolution"). The Directors' Resolution as to any series shall (a)
designate the series, (b) fix the dividend rate, if any, of such
series, the payment dates for dividends on shares of such series and
the date or dates, or the method of determining the date or dates, if
any, from which dividends on shares of such series shall be cumulative,
(c) fix the amount or amounts payable on shares of such series upon
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, (d)
<PAGE> 2
state the price or prices or rate or rates, and adjustments, if any, at
which, the time or times and the terms and conditions upon which, the
shares of such series may be redeemed at the option of the Corporation
or at the option of the holder or holders of shares of such series or
upon the occurrence of a specified event, and state whether such shares
may be redeemed for cash, property or rights, including securities of
the Corporation or another entity; and such Directors' Resolution may
(i) limit the number of shares of such series that may be issued, (ii)
provide for a sinking fund for the purchase or redemption of shares of
such series and specify the terms and conditions governing the
operations of any such fund, (iii) grant voting rights to the holders
of shares of such series, provided that each share shall not have more
than one vote per share, (iv) impose conditions or restrictions upon
the creation of indebtedness of the Corporation or upon the issuance of
additional Preferred Stock or other capital stock ranking on a parity
therewith, or prior thereto, with respect to dividends or distribution
of assets upon liquidation, (v) impose conditions or restrictions upon
the payment of dividends upon, or the making of other distributions to,
or the acquisition of, shares ranking junior to the Preferred Stock or
to any series thereof with respect to dividends or distributions of
assets upon liquidation, (vi) state the times or times, the price or
prices or the rate or rates of exchange and other terms, conditions and
adjustments upon which shares of any such series may be made
convertible into, or exchangeable for, at the option of the holder or
the Corporation or upon the occurrence of a specified event, shares of
any other class or classes or of any other series of Preferred Stock or
any other class or classes of stock or other securities of the
Corporation, and (vii) grant such other special rights and impose such
qualifications, limitations or restrictions thereon as shall be fixed
by the Board of Directors, to the extent not inconsistent with this
Article FOURTH and to the full extent now or hereafter permitted by the
laws of the State of Delaware.
(2) Except as by law expressly provided, or except as may be
provided in any Directors' Resolution, the Preferred Stock shall have
no right or power to vote on any question or in any proceeding or to be
represented at, or to receive notice of, any meeting of stockholders of
the Corporation.
(3) Preferred Stock that is redeemed, purchased or retired by
the Corporation shall assume the status of authorized by unissued
Preferred Stock and may thereafter, subject to the provisions of any
Directors' Resolution providing for the issue of any particular series
of Preferred Stock, be reissued in same manner as authorized by
unissued Preferred Stock.
B. Common Stock. All shares of the Common Stock of the
Corporation shall be identical and except as otherwise required by law
or as otherwise provided in the resolution or resolutions, if any,
adopted by the Board of Directors with respect to any series of
Preferred Stock, the holders of the Common Stock shall exclusively
possess all voting power, and each share of Common Stock shall have one
vote.
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<PAGE> 3
FIFTH: The number of directors constituting the Board of Directors
shall be fixed as specified in the Bylaws of the Corporation, but shall not be
less than three or more than 15. The directors shall be divided into three
classes, designated Class I, Class II and Class III. The initial term for
directors in Class I shall expire at the annual meeting of stockholders to be
hold in 1991; the initial term for directors in Class II shall expire at the
annual meeting of stockholders to be held in 1992; and the initial term for
directors in Class III shall expire at the annual meeting of stockholders to be
held in 1993. Each class of directors shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors.
At the expiration of the initial term of each class of directors, and
of each succeeding term of each class, each class of directors shall be elected
to serve until the annual meeting of stockholders held three years from such
expiration and until their successors are elected and qualified or until their
earlier death, resignation, removal or retirement. Any increase or decrease in
the number of directors constituting the Board shall be apportioned among the
classes so as to maintain the number of directors in each class as near as
possible to one-third the whole number of directors as so adjusted. Any director
elected or appointed to fill a vacancy shall hold office for the remaining term
of the class to which such directorship is assigned. No decrease in the number
of directors constituting the Corporation's Board of Directors shall shorten the
term of any incumbent director. Any vacancy in the Board of Directors, whether
arising through death, resignation or removal of a director, or through an
increase in the number of directors of any class, shall be filled by the
majority vote of the remaining directors. The Bylaws may contain any provision
regarding classification of the Corporation's directors not inconsistent with
the terms hereof.
A director of the Corporation may be removed only for cause and only
upon the affirmative vote of the holders of a majority of the outstanding
capital stock of the Corporation entitled to vote at an election of directors,
subject to further restrictions on removal, not inconsistent with this Article
FIFTH, as may be contained in the Bylaws.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Restated Certificate of Incorporation applicable thereto, and such
directors so elected shall not be divided into classes pursuant to this Article
FIFTH unless expressly provided by such terms.
SIXTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of
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the powers of the Corporation and of its directors and stockholders:
A. The Board of Directors is authorized to alter, amend or
repeal the Bylaws or adopt new Bylaws of the Corporation. The
stockholders shall not repeal or change the Bylaws of the Corporation
unless such repeal or change is approved by the affirmative vote of the
holders of not less than 80% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors,
considered for the purposes of this paragraph A as a single class.
B. Election of directors need not be by written ballot unless
the Bylaws so provide.
C. In addition to the powers herein or by statute expressly
conferred upon the Corporation's directors, the Corporation's directors
are hereby empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the statutes of Delaware, this
Restated Certificate of Incorporation, and any Bylaws adopted by the
stockholders; provided, however, that no Bylaws hereafter adopted shall
invalidate any prior act of the directors which would have been valid
if such Bylaws had not been adopted.
D. No action shall be taken by the stockholders except at an
annual or special meeting with prior notice and a vote. No action shall
be taken by the stockholders by written consent.
SEVENTH: 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 Bylaws of the Corporation.
EIGHTH: The Board of Directors is hereby authorized to create and
issue, whether or not in connection with the issuance and sale of any of its
stock or other securities, rights (the "Rights") entitling the holders thereof
to purchase from the Corporation shares of capital stock or other securities.
The times at which and the terms upon which the Rights are to be issued will be
determined by the Board of Directors and set forth in the contracts or
instruments that evidence the Rights. The authority of the Board of Directors
with respect to the Rights shall include, but not be limited to, determination
of the following:
(a) The initial purchase price per share of the capital stock
or other securities of the Corporation to be purchased upon
exercise of the Rights.
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<PAGE> 5
(b) Provisions relating to the times at which and the
circumstances under which the Rights may be exercised or sold
or otherwise transferred, either together with or separately
from, any other securities of the Corporation.
(c) Provisions that adjust the number or exercise price of the
Rights or amount or nature of the securities or other property
receivable upon exercise of the Rights in the event of a
combination, split or recapitalization of any capital stock of
the Corporation, a change in ownership of the Corporation's
securities or a reorganization, merger, consolidation, sale of
assets or other occurrence relating to the Corporation or any
capital stock of the Corporation, and provisions restricting
the ability of the Corporation to enter into any such
transaction absent an assumption by the other party or parties
thereto of the obligations of the Corporation under such
Rights.
(d) Provisions that deny the holder of a specified percentage
of the outstanding securities of the Corporation the right to
exercise the Rights and/or cause the Rights held by such
holder to become void.
(e) Provisions that permit the corporation to redeem the
Rights.
(f) The appointment of a Rights Agent with respect to the
Rights.
NINTH: No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article NINTH
shall not eliminate or limit the liability of a director to the extent provided
by applicable law (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 General Corporation Law of the State of Delaware or (iv) for
any transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article NINTH shall apply to, or have any effect
on, the liability or alleged liability of any director of the Corporation for or
with respect to any facts or omissions of such director occurring prior to such
amendment or repeal. If the General Corporation Law of the State of Delaware is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended.
TENTH: The provisions set forth in Article FIFTH hereof may not be
amended, altered, changed, repealed or rescinded in any respect unless such
action is approved by the affirmative vote
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<PAGE> 6
of the holders of not less than 80 percent of the total voting power of all
shares of stock of the Corporation entitled to vote in the election of
directors, considered for purposes of this Article TENTH as a single class; the
amendment, alteration, change, repeal or rescission of this Article TENTH and
Articles SIXTH, EIGHTH, and NINTH hereof shall require both such 80 percent
vote. The voting requirements contained in this Article TENTH and in Article
SIXTH hereof shall be in addition to voting requirements imposed by law, other
provisions of this Restated Certificate of Incorporation or any designation of
preferences in favor of certain classes or series of shares of capital stock of
the Corporation.
ELEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
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<PAGE> 7
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
has been duly adopted in accordance with the provisions of Sections 242 and 245
of the General Corporation Law of the State of Delaware, has been executed by
President of the Corporation and attested by its Secretary of the 11th day of
January, 1990.
SANTA FE NATURAL RESOURCES, INC.
By: /s/ J. L. Payne
-----------------------------
President
ATTEST:
/s/ D. A. Louden
- --------------------------------
Secretary
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<PAGE> 8
CERTIFICATE OF MERGER
Merger of Snyder Oil Corporation, a Delaware corporation
With and Into
Santa Fe Energy Resources, Inc., a Delaware corporation
Pursuant to the provisions of Section 251 of the Delaware General
Corporation Law, the undersigned certifies as follows concerning the merger (the
"Merger") of Snyder Oil Corporation, a Delaware corporation, with and into Santa
Fe Energy Resources, Inc., a Delaware corporation, with Santa Fe Energy
Resources, Inc. as the surviving corporation (the "Surviving Corporation").
1. The Agreement and Plan of Merger, dated as of January 13, 1999 (the
Agreement and Plan of Merger being hereinafter referred to as the "Merger
Agreement") has been approved, adopted, certified, executed and acknowledged by
Snyder Oil Corporation and Santa Fe Energy Resources, Inc. in accordance with
Section 251 of the Delaware General Corporation Law.
2. The Merger contemplated in the Merger Agreement and this Certificate
of Merger will be effective immediately upon the filing of this Certificate of
Merger
3. The name of the Surviving Corporation shall be Santa Fe Energy
Resources, Inc. which shall be changed herewith to Santa Fe Snyder Corporation.
4. Article FIRST of the Restated Certificate of Incorporation of Santa
Fe Energy Resources, Inc. is amended, effective as of the date hereof, to read
in its entirety as follows:
"FIRST: The name of the corporation (hereinafter referred to as the
"Corporation") is Santa Fe Snyder Corporation."
and that the first paragraph of Article FOURTH of the Restated
Certificate of Incorporation of Santa Fe Energy Resources, Inc. is amended,
effective as of the date hereof, to read in its entirety as follows:
"FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 350,000,000, of which
50,000,000 shares shall be Preferred Stock, par value $.01 per share, and
300,000,000 shares shall be Common Stock, par value $.01 per share."
The Restated Certificate of Incorporation of Santa Fe Energy Resources,
Inc., as amended, in effect at the effective time of the Merger shall be the
certificate of incorporation of the Surviving Corporation.
<PAGE> 9
5. The executed Merger Agreement is on file at the principal place of
business of the Surviving Corporation, 1616 South Voss Road, Houston, Texas
77057.
6. A copy of the Merger Agreement will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of Snyder Oil
Corporation or Santa Fe Energy Resources, Inc.
Dated this 5th day of May, 1999.
SANTA FE ENERGY RESOURCES, INC.
By: /s/ David L. Hicks
----------------------------
Name: David L. Hicks
Title: Vice President -- Law and
General Counsel
<PAGE> 10
Certificate of Designations of
Series A Junior Participating Preferred Stock of
Santa Fe Energy Resources, Inc.
(Pursuant to Section 151 of the General
Corporation Law of the State of Delaware)
------------------------------------
Santa Fe Energy Resources, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (hereinafter called
the "Company"), hereby certifies that the following resolution was duly adopted
by the Board of Directors of the Company as required by Section 151 of the
General Corporation Law of the State of Delaware at a meeting duly called and
held on February 19, 1997:
RESOLVED, that to the authority granted to and vested in the Board of
Directors of the Company (hereinafter called the "Board of Directors" or the
"Board") in accordance with the provisions of the Company's Certificate of
Incorporation, as amended to date (hereinafter called the "Certificate of
Incorporation"), the Board of Directors on February 19, 1997 adopted a
resolution creating a series of shares of Preferred Stock, par value $.01 per
share, designated as Series A Participating Cumulative Preferred Stock and filed
such designation with the Secretary of State of Delaware on February 19, 1997,
no shares of which have been issued as of March 3, 1997; and be it further
<PAGE> 11
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of the Delaware
General Corporation Law and the Certificate of Incorporation, the Series A
Participating Junior Preferred Stock of the Corporation heretofore created be,
and that the designation thereof and the powers, designations, preferences and
relative, participating, optional or other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are hereby
amended and restated as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 2,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Company convertible
into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock of the Company (the "Preferred Stock") (or any similar stock)
ranking prior and superior to the Series A Preferred Stock with respect to
dividends, the holders of shares of Series A Preferred Stock, in preference to
the holders of Common Stock, par value $0.01 per share, of the Company (the
"Common Stock") and of any other stock of the Company ranking junior to the
Series A Preferred Stock, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds
-2-
<PAGE> 12
legally available therefor, quarterly dividends payable in cash on the last day
of January, April, July, and October in each year (each such date being referred
to herein as a "Dividend Payment Date"), commencing on the first Dividend
Payment Date"), commencing on the first Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00
and (b) subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock, declared
on the Common Stock since the immediately preceding Dividend Payment Date or,
with respect to the first Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event that the
Company shall at any time after March 3, 1997 declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution
-3-
<PAGE> 13
on the Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Dividend Payment Date and the
next subsequent Dividend Payment Date, a dividend of $1.00 per share on the
Series A Preferred Stock shall nevertheless be payable, when, as and if
declared, on such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative, whether or not
earned or declared, on outstanding shares of Series A Preferred Stock from the
Dividend Payment Date next preceding the date of issue of such shares, unless
the date of issue of such shares is prior to the record date for the first
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
-4-
<PAGE> 14
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights;
(A) Subject to the provision for adjustment hereinafter set forth
except as otherwise provide in the Certificate of Incorporation or required by
law, each share of Series A Preferred Stock shall entitle the holder thereof to
100 votes on all matters upon which the holders of the Common Stock of the
Company are entitled to vote. In the event the Company shall at any time after
March 3, 1997 declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes per share
to which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Certificate of
Incorporation or in any other Certificate of Designations creating a series of
Preferred Stock or any similar stock, and except as otherwise required by law,
the holders of shares of Series A Preferred Stock and the holders of shares of
Common Stock and any other capital stock of the Company having general voting
rights shall vote together as one class on all matters submitted to a vote of
stockholders of the Company.
-5-
<PAGE> 15
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not earned or declared, on shares of Series A Preferred Stock outstanding
shall have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (as to dividends) to the Series A
Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (as to
dividends) with the Series A Preferred Stock, except dividends paid
ratably on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock, provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the
-6-
<PAGE> 16
Company ranking junior (as to dividends and upon dissolution,
liquidation or winding up) to the Series A Preferred Stock or rights,
warrants or options to acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their retirement become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject to any
conditions and restrictions on issuance set forth herein.
-7-
<PAGE> 17
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall be
made (A) to the holders of the Common Stock or of shares of any other stock of
the Company ranking junior, upon liquidation, dissolution or winding up, to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received $1.00 per share, plus an amount equal to
accrued and unpaid dividends distributions thereon, whether or not earned or
declared, to the date of such payment, provided that the holders of shares of
Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of shares
of Common Stock, or (B) to the holders of shares of stock ranking on a parity
upon liquidation, dissolution or winding up with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all such
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. In the
event, however, that there are not sufficient assets available to permit payment
in full of the Series A liquidation preference and the liquidation preferences
of all other classes and series of stock of the Company, if any, that rank on a
parity with the Series A Preferred Stock in respect thereof, then the assets
available for such distribution shall be distributed ratably to the holders of
the Series A Preferred Stock and the holders of such parity shares in the
proportion to their respective liquidation preferences. In the event the Company
shall at any time after March 3, 1997 declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend
-8-
<PAGE> 18
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event under the
proviso in clause (A) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In the case the Company shall
enter into any consolidation, merger, combination or other transaction in which
the shares are converted into, exchanged for or changed into other stock or
securities, cash and/or any property, then in any such case each share of Series
A Preferred Stock shall at the same time be similarly converted into, exchanged
for or changed into an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is converted, exchanged or converted. In
the event the Company shall at any time after March 3, 1997 declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to
the conversion, exchange or change of shares of Series A Preferred Stock shall
be adjusted by multiplying such amount by a fraction, the numerator of which
-9-
<PAGE> 19
is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall
not be redeemable from any holder.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Company, junior to all other series of
Preferred Stock and senior to the Common Stock.
Section 10. Amendment. If any proposed amendment to the Certificate of
Incorporation (including this Certificate of Designations) would alter, change
or repeal any of the preferences, powers or special rights given to the Series A
Preferred Stock so as to affect the Series A Preferred Stock adversely, then the
holders of the Series A Preferred Stock shall be entitled to vote separately as
a class upon such amendment, and the affirmative vote of two-thirds of the
outstanding shares of the Series A Preferred Stock, voting separately as a
class, shall be necessary for the adoption thereof, in addition to such other
vote as may be required by the General Corporation Law of the State of Delaware.
Section 11. Fractional Shares. Series A Preferred Stock may be issued
in fractions of a share that shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
-10-
<PAGE> 20
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Company by its Vice President of Law and attested by its Secretary
this 3rd day of March, 1997.
/s/ David L. Hicks
---------------------------
David L. Hicks
Vice President-Law
Attest:
/s/ Mark A. Older
- ---------------------------
Mark A. Older
Secretary
-11-
<PAGE> 21
CERTIFICATE OF INCREASE
OF
NUMBER OF SHARES
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
SANTA FE SNYDER CORPORATION
(Pursuant to Section 151(g) of the General Corporation
Law of the State of Delaware)
Santa Fe Snyder Corporation, a corporation organized and existing under
the General Corporation Laws of the State of Delaware (the "Corporation").
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the Corporation was
filed in the office of the Secretary of State of Delaware on January 11, 1990,
and a Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock, was filed in said office of the Secretary of
State on March 4, 1997;
That the Board of Directors of the Corporation at a meeting held on
January 13, 1999, duly adopted a resolution authorizing and directing an
increase in the number of shares of Series A Junior Participating Preferred
Stock of the Corporation, from 2,000,000 shares to 3,000,000 shares, all in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware.
<PAGE> 22
IN WITNESS WHEREOF, said Santa Fe Snyder Corporation has caused this
Certificate to be signed by David L. Hicks, its Vice President--Law and General
Counsel, this 5th day of May, 1999.
SANTA FE SNYDER CORPORATION
By: /s/ David L. Hicks
---------------------------------------
David L. Hicks
Vice President--Law and General Counsel
-2-
<PAGE> 1
EXHIBIT 3.2
As amended by the Board of Directors on
April 20,1990, February 26, 1993, February 23, September 1,
1998 and May 5, 1999
SANTA FE SNYDER CORPORATION
BYLAWS
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE. The principal office of the Corporation
shall be in the City of Houston, Texas.
SECTION 1.2 REGISTERED OFFICE. The registered office and registered
agent of the Corporation required to be maintained in the State of Delaware by
the General Corporation Law of the State of Delaware shall be as designated from
time to time by the appropriate filing by the Corporation in the office of the
Secretary of State of the State of Delaware.
SECTION 1.3 OTHER OFFICES. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 2.1 ANNUAL MEETING. The annual meeting of the holders of shares
of each class or series of stock as are entitled to notice thereof and to vote
thereat pursuant to applicable law and the Certificate of Incorporation for the
purpose of electing directors and transacting such other proper business as may
come before it shall be held in each year, at such
<PAGE> 2
time, on such day and at such place, within or without the State of Delaware, as
may be designated by the Board of Directors.
SECTION 2.2 SPECIAL MEETINGS. In addition to such special meetings as
are provided by law or the Certificate of Incorporation, special meetings of the
holders of any class or series or of all classes or series of the Corporation's
stock for any purpose or purposes, may be called at any time by the Board of
Directors and may he held on such day, at such time and at such place, within or
without the State of Delaware, as shall be designated by the Board of Directors.
Stockholders of the Corporation may not call a special meeting.
SECTION 2.3 NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Except as
otherwise provided by law, written notice of any meeting of Stockholders shall
be given either by personal delivery or by mail to each Stockholder of record
entitled to vote thereat. Notice of each meeting shall be in such form as is
approved by the Board of Directors and shall state the date, place and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, such written
notice shall be given not less than 10 nor more than 60 days before the date of
the meeting. Except when a Stockholder attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened,
presence in person or by proxy of a Stockholder shall constitute a waiver of
notice of such meeting. Further, a written waiver of any notice required by law
or by these Bylaws, signed by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Except as
otherwise provided by law, the business that may be transacted at any such
meeting shall be limited to and consist of the purpose or purposes stated in
such notice. If a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each Stockholder of record entitled to vote at the meeting.
SECTION 2.4 VOTING LISTS. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least 10 days
before each meeting of the Stockholders, a complete list of Stockholders
entitled to vote at such meeting or any adjournment
2
<PAGE> 3
thereof, arranged in alphabetical order, with the address of each and the number
of shares held by each, which list, for a period of 10 days prior to such
meeting, shall be kept on file at a place within the city where the meeting is
to he held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to he held, and such list
shall be subject to inspection by any Stockholders at any time during usual
business hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any Stockholder
for the duration of the meeting. The original stock transfer books shall he
prima facie evidence as to who are the Stockholders entitled to examine such
list or transfer books or to vote at any meeting of Stockholders.
SECTION 2.5 QUORUM. The holders of at least a majority of the shares
issued and outstanding and entitled to vote thereat, present at a meeting, shall
constitute a quorum at all meetings of stockholders for the transaction of
business, except as otherwise provided by law or by the Certificate of
Incorporation. If, however, such quorum shall not be present at any meeting of
the stockholders, the Chairman or the stockholders entitled to vote thereat and
present at the meeting, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting unless the
adjournment is for more than 30 days or if after the adjournment a new record
date is fixed for the adjourned meeting, until a quorum shall be present. A
holder of a share shall be treated as being present at a meeting if the holder
of such share is (i) present in person at the meeting or (ii) represented at the
meeting by a valid proxy, whether the instrument granting such proxy is marked
as casting a vote or abstaining, is left blank or does not empower such proxy to
vote with respect to some or all matters to he voted upon at the meeting.
SECTION 2.6 ORGANIZATION. Meetings of the Stockholders shall be
presided over by the Chairman of the Board of Directors, if one shall be
elected, or in his absence, by the Chief Executive Officer, the President or by
any Vice President, or in the absence of any of such officers, by a chairman to
be chosen by a majority of the Stockholders entitled to vote at the meeting who
are present in person or by proxy. The Secretary, or, in his absence, any
Assistant Secretary or any person appointed by the individual presiding over the
meeting, shall act as secretary at meetings of the Stockholders.
SECTION 2.7 VOTING. Each Stockholder of record, as determined pursuant
to
3
<PAGE> 4
Section 2.8, who is entitled to vote in accordance with the terms of the
Certificate of Incorporation and in accordance with the provisions of these
Bylaws, shall he entitled to one vote, in person or by proxy, for each share of
stock registered in his name on the books of the Corporation. Every Stockholder
entitled to vote at any Stockholders' meeting may authorize another person or
persons to act for him by proxy duly appointed by instrument in writing
subscribed by such Stockholder and executed not more than three years prior to
the meeting, unless the proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and only
so long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A Stockholder's attendance at any meeting, when such
Stockholder who may have theretofore given a proxy, shall not have the effect of
revoking such proxy unless such Stockholder shall in writing so notify the
Secretary of the meeting prior to the voting of the proxy. Unless otherwise
provided by law, no vote on the election of directors or any question brought
before the meeting need be by ballot unless the chairman of the meeting shall
determine that it shall be by ballot or the holders of a majority of the shares
of stock present in person or by proxy and entitled to participate in such vote
shall so demand. In a vote by ballot, each ballot shall state the number of
shares voted and the name of the Stockholder or proxy voting. Action on a matter
(other than the election of directors) shall be approved if the votes cast in
favor of the matter exceed the vote's cast opposing the matter. Directors shall
be elected by a plurality of the votes cast by the shares entitled to vote in
the election at a meeting at which a quorum is present. In the election of
directors, votes may not be cumulated. In determining the number of votes cast,
shares abstaining from voting or not voted on a matter (including elections)
will not he treated as votes cast. The provisions of this paragraph will govern
with respect to all votes of stockholders except as otherwise provided for in
these Bylaws or in the Certificate of Incorporation or by some specific
statutory provision superseding the provisions contained in these Bylaws or the
Certificate of Incorporation.
SECTION 2.8 STOCKHOLDERS ENTITLED TO VOTE. The Board of Directors may
fix a date not more than 60 days nor less than 10 days prior to the date of any
meeting of Stockholders as a record date for the determination of the
Stockholders entitled to notice of and to vote at such meeting and any
adjournment thereof, and in such case such Stockholders and only such
Stockholders as shall be Stockholders of record on the date so fixed shall be
entitled to notice of
4
<PAGE> 5
and to vote at, such meeting and any adjournment thereof notwithstanding any
transfer of any stock on the books of the Corporation after such record date
fixed as aforesaid.
SECTION 2.9 ORDER OF BUSINESS. The order of business at all meetings of
Stockholders shall be as determined by the chairman of the meeting or as is
otherwise determined by the vote of the holders of a majority of the shares of
stock present in person or by proxy and entitled to vote without regard to class
or series at the meeting.
SECTION 2.10 ACTION BY WRITTEN CONSENT. No action required or permitted
to be taken by the Stockholders shall be taken except at an annual or special
meeting with prior notice and a vote. No action may be taken by the Stockholders
by written consent.
SECTION 2.11 NOTICE OF STOCKHOLDER NOMINEES. Only persons who are
nominated in accordance with the procedures set forth in this Section 2.11 shall
be eligible for election as directors of the Corporation. Nominations of persons
for election to the Board of Directors of the Corporation may be made at a
meeting of the Corporation's 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 such meeting who complies with the procedures
set forth in this Section 2.11. All nominations by stockholders shall be made
pursuant to timely notice in proper written form 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 90 days nor more than 120 days prior to the meeting; provided,
however, that if less than 100 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
l0th day following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made. To be in proper written form, such
stockholder's notice to the Secretary shall set forth in writing (a) as to each
person whom such stockholder proposes to nominate for election or reelection as
a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended; including, without limitation, such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; and (b) as to such stockholder (i) the name and address, as
they appear on the Corporation's books, of such
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stockholder and (ii) the class and number of shares of the Corporation's capital
stock that are beneficially owned by such stockholder. At the request of the
Board of Directors, any person nominated by the Board of Directors for election
as a director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a director unless
nominated in accordance with the procedures set forth in these Bylaws of the
Corporation. The chairman of the stockholders' meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws of the Corporation,
and if he shall so determine, he shall announce such determination to the
meeting and the defective nomination shall be disregarded.
SECTION 2.12 STOCKHOLDER PROPOSALS. At any special meeting of the
Corporation's stockholders, only such business shall be conducted as shall have
been brought before the meeting by or at the direction of the Board of
Directors. At any annual meeting of the stockholders, only such business shall
be conducted as shall have been brought before the meeting (a) by or at the
direction of the Board of Directors or (b) by any stockholder who complies with
the procedures set forth in this Section 2.12. For business properly to be
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in proper written form 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
120 days from the date of the release of the Corporation's proxy statement
relating to the prior year's annual meeting of stockholders; provided, however,
in the event no annual meeting was held in the prior year or if the current
year's annual meeting shall be held more than 30 days prior to or after the date
of the previous year's annual meeting a stockholder's notice shall be timely if
received by the Corporation not later than the close of business on the 10th day
following the day on which such notice of the date of the Corporation's annual
meeting was mailed or public disclosure was made. To be in proper written form,
such stockholder's notice to the Secretary shall set forth in writing as to each
matter such 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 such stockholder, (c) the
class and
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number of shares of the Corporation's stock which are beneficially owned by such
stockholder and (d) any material interest of such stockholder in such business.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 2.12. The chairman of an annual stockholder's meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the provisions of
this Section 2.12, and, if he should so determine, he shall so announce such
determination to the meeting and any such business not properly brought before
the meeting shall not be transacted.
SECTION 2.13. DISCRETIONARY VOTING AUTHORITY ON PROXIES. To the extent
permitted in accordance with the Delaware General Corporation Law and applicable
securities laws proxies solicited by the Corporation in connection with any
annual or special meeting of stockholders may confer discretionary authority to
vote on any matters not timely known by the Corporation prior to such meeting
or, if so timely known, provided that the Corporation otherwise complies with
the requirements of securities laws applicable to discretionary voting on such
matter. The Corporation shall be deemed to have received timely notice of a
stockholder proposal to be presented at a stockholders' meeting if the
stockholder shall have furnished notice to the Corporation in accordance with
the requirements of Section 2.12 of these Bylaws and such stockholder complies
with the other applicable requirements of the securities laws.
ARTICLE III
DIRECTORS
SECTION 3.1 MANAGEMENT. The property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of Directors
which may exercise all powers of the Corporation and do all lawful acts and
things as are not by law, by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the Stockholders.
SECTION 3.2 NUMBER AND TERM. The number of directors may be fixed from
time to time by resolution of the Board of Directors adopted by the affirmative
vote of a majority of the members of the entire Board of Directors, but shall
consist of not less than three nor more than 15 members, one-third of whom shall
be elected each year by the Stockholders except as
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provided in Section 3.4. Directors need not be Stockholders. No decrease in the
number of directors shall have the effect of shortening the term of office of
any incumbent director.
SECTION 3.3 QUORUM AND MANNER OF ACTION. At all meetings of the Board
of Directors a majority of the total number of directors holding office shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
law, by the Certificate of Incorporation or these Bylaws. When the Board of
Directors consists of one director, the one director shall constitute a majority
and a quorum. If at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time until a quorum is obtained, and no further notice thereof need be
given other than by announcement at such adjourned meeting. Attendance by a
director at a meeting shall constitute a waiver of notice of such meeting except
where a director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened
SECTION 3.4 VACANCIES. Except as otherwise provided by law and the
Certificate of Incorporation, in the case of any increase in the authorized
number of directors or of any vacancy in the Board of Directors, however
created, the additional director or directors may be elected, or, as the case
may be, the vacancy or vacancies may he filled by majority vote of the directors
remaining on the whole Board of Directors although less than a quorum, or by a
sole remaining director. In the event one or more directors shall resign,
effective at a future date, such vacancy or vacancies shall be filled by a
majority of the directors who will remain on the whole Board of Directors,
although less than a quorum, or by a sole remaining director. Any director
elected or chosen as provided herein shall serve until the sooner of (i) the
unexpired term of the directorship to which be is appointed or (ii) until his
successor is elected and qualified; or (iii) until his earlier resignation or
removal.
SECTION 3.5 RESIGNATIONS. A director may resign at any time upon
written notice of resignation to the Corporation. Any resignation shall be
effective immediately unless a certain effective date is specified therein, in
which event it will be effective upon such date and acceptance of any
resignation shall not be necessary to make it effective.
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SECTION 3.6 REMOVALS. Any director or the entire Board of Directors may
be removed only for cause, and another person or persons may be elected to serve
for the remainder of his or their term, by the holders of a majority of the
shares of the Corporation entitled to vote in the election of directors.
Stockholders may not remove any director without cause. In case any vacancy so
created shall not be filled by the Stockholders at such meeting, such vacancy
may be filled by the directors as provided in Section 3.4
SECTION 3.7 ANNUAL MEETINGS. The annual meeting of the Board of
Directors shall be held, if a quorum be present, immediately following each
annual meeting of the Stockholders at the place such meeting of Stockholders
took place, for the purpose of organization and transaction of any other
business that might be transacted at a regular meeting thereof, and no notice of
such meeting shall be necessary. If a quorum is not present, such annual meeting
may be held at any other time or place that may be specified in a notice given
in the manner provided in Section 3.9 for special meetings of the Board of
Directors or in a waiver of notice thereof.
SECTION 3.8 REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such places and times as shall be
determined from time to time by resolution of the Board of Directors. Except as
otherwise provided by law, any business may be transacted at any regular meeting
of the Board of Directors.
SECTION 3.9 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chief Executive Officer, the President or by the
Secretary on the written request of one-third of the members of the whole Board
of Directors stating the purpose or purposes of such meeting. Notices of special
meetings, if mailed, shall be mailed to each director not later than two days
before the day the meeting is to be held or if otherwise given in the manner
permitted by the Bylaws, not later than the day before such meeting. Neither the
business to be transacted at, nor the purpose of, any special meeting need be
specified in any notice or written waiver of notice unless so required by the
Certificate of Incorporation or by the Bylaws and, unless limited by law, the
Certificate of Incorporation or by these Bylaws, any and all business may be
transacted at a special meeting.
SECTION 3.10 ORGANIZATION OF MEETINGS. At any meeting of the Board or
Directors business shall be transacted in such order and manner as such Board of
Directors may
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from time to time determine, and all matters shall he determined by the vote of
a majority of the directors present at any meeting at which there is a quorum,
except as otherwise provided by these Bylaws or required by law
SECTION 3.11 PLACE OF MEETINGS. The Board of Directors may hold their
meetings and have one or more offices, and keep the books of the Corporation,
outside the State of Delaware, at any office or offices of the Corporation, or
at any other place as they may from time to time by resolution determine.
SECTION 3.12 COMPENSATION OF DIRECTORS. Directors shall not receive any
stated salary for their services as directors, but by resolution of the Board of
Directors a fixed honorarium as well as fees and expenses, if any, of attendance
may be allowed for attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
SECTION 3.13 ACTION BY UNANIMOUS WRITTEN CONSENT. Unless otherwise
restricted by law, the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if prior to such action all
members of the Board of Directors or of such committee, as the case may be,
consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or the committee.
SECTION 3.14 PARTICIPATION IN MEETINGS BY TELEPHONE. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors or of any committee thereof may participate in a meeting of
such Board of Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting in such manner shall
constitute presence in person at such meeting.
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ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.1 MEMBERSHIP AND AUTHORITIES. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board of Directors,
designate one or more Directors to constitute an Executive Committee and such
other committees as the Board of Directors may determine, each of which
committees to the extent provided in said resolution or resolutions or in these
Bylaws, shall have and may exercise all the powers of the Board of Directors in
the management of the business and affairs of the Corporation, except in those
cases where the authority of the Board of Directors is specifically denied to
the Executive Committee or such other committee or committees by law, the
Certificate of Incorporation or these Bylaws, and may authorize the seal of the
Corporation to be affixed to all papers that may require it. The designation of
an Executive Committee or other committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any members
thereof, of any responsibility imposed upon it or him by law.
SECTION 4.2 MINUTES. Each committee designated by the Board of
Directors shall keep regular minutes of its proceedings and report the same to
the Board of Directors when required.
SECTION 4.3 VACANCIES. The Board of Directors may designate one or more
of its members as alternate members of any committee who may replace any absent
or disqualified member at any meeting of such committee. If no alternate members
have been appointed, the committee member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of, and to dissolve, any committee.
SECTION 4.4 TELEPHONE MEETINGS. Members of any committee designated by
the Board of Directors may participate in or hold a meeting by use of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this Section 4.4 shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
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SECTION 4.5 ACTION WITHOUT MEETING. Any action required or permitted to
be taken at a meeting of any committee designated by the Board of Directors may
be taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all the members of the committee and filed with the minutes
of the committee proceedings. Such consent shall have the same force and effect
as a unanimous vote at a meeting.
ARTICLE V
OFFICERS
SECTION 5.1 NUMBER AND TITLE. The elected officers of the Corporation
shall be chosen by the Board of Directors and shall be a Chief Executive
Officer, one or more Presidents, one or more Vice Presidents, a Secretary and a
Treasurer. The Board of Directors may also choose a Chairman of the Board, who
must be a Board member of the Board of Directors, and additional Vice
Presidents, Assistant Secretaries and/or Assistant Treasurers. One person may
hold any two or more of these offices.
SECTION 5.2 TERM OF OFFICE: VACANCIES. So far as is practicable, all
elected officers shall be elected by the Board of Directors at the annual
meeting of the Board of Directors in each year, and except as otherwise provided
in this Article V, shall hold office until the next such meeting of the Board of
Directors in the subsequent year and until their respective successors are
elected and qualified or until their earlier resignation or removal. All
appointed officers shall hold office at the pleasure of the Board of Directors.
If any vacancy shall occur in any office, the Board of Directors may elect or
appoint a successor to fill such vacancy for the remainder of the term.
SECTION 5.3 REMOVAL OF ELECTED OFFICERS. Any elected officer may be
removed at any time, with or without cause, by affirmative vote of a majority of
the whole Board of Directors, at any regular meeting or at any special meeting
called for such purpose.
SECTION 5.4 RESIGNATIONS. Any officer may resign at any time upon
written notice of resignation to the Chief Executive Officer, the President,
Secretary or Board of Directors of the Corporation. Any resignation shall be
effective immediately unless a date certain is specified for it to take effect,
in which event it shall be effective upon such date, and acceptance of any
resignation shall not be necessary to make it effective, irrespective of whether
the resignation is tendered subject to such acceptance.
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SECTION 5.5 THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if
one shall be elected, shall preside at all meetings of the Stockholders and
Board of Directors. In addition, the Chairman of the Board shall perform
whatever duties and shall exercise all powers that are given to him by the Board
of Directors.
SECTION 5.6 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the
Corporation, shall (in the absence of the Chairman of the Board, if one be
elected) preside at meetings of the Stockholders and Board of Directors; shall
be ex officio a member of all standing committees, shall have general and active
management of business of the corporation; shall implement the general
directives, plans and policies formulated by the Board of Directors; and shall
further have such duties, responsibilities and authorities as may be assigned to
him by the Board of Directors. He may sign, with any other proper officer, any
deeds, bonds, mortgages, contracts and other documents which the Board of
Directors has authorized to be executed, except where required by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors or these Bylaws, to some
other officer or agent of the Corporation. In the absence of the Chief Executive
Officer, his duties shall be performed and his authority may be exercised by the
President or a Vice President of the Corporation as may have been designated by
the Chief Executive Officer with the right reserved to the Board of Directors to
designate or supersede any designation so made.
SECTION 5.7 PRESIDENT(S) AND VICE PRESIDENTS. The President(s) and the
several Vice Presidents shall have such powers and duties as may be assigned to
them by these Bylaws and as may from time to time be assigned to them by the
Board of Directors or the Chief Executive Officer and may sign, with any other
proper officer, certificates for shares of the Corporation.
SECTION 5.8 SECRETARY. The Secretary, if available, shall attend all
meetings of the Board of Directors and all meetings of the Stockholders and
record the proceedings of the meetings in a book to be kept for that purpose and
shall perform like duties for any committee of the Board of Directors as shall
designate him to serve. He shall give, or cause to be given, notice of all
meetings of the Stockholders and meetings of the Board of Directors and
committees thereof and shall perform such other duties incident to the office of
secretary or as may be prescribed by the Board of Directors or the Chief
Executive Officer, under whose supervision he
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shall be. He shall have custody of the corporate seal of the Corporation and he,
or any Assistant Secretary, or any other person whom the Board of Directors may
designate, shall have authority to affix the same to any instrument requiring
it, and when so affixed it may be attested by his signature or by the signature
of any Assistant Secretary or by the signature of such other person so affixing
such seal.
SECTION 5.9 ASSISTANT SECRETARIES. Each Assistant Secretary shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors, the Chief
Executive Officer or the Secretary. The Assistant Secretary or such other person
as may be designated by the Chief Executive Officer shall exercise the powers of
the Secretary during that officer's absence or inability to act.
SECTION 5.10 TREASURER. The Treasurer shall have the custody of and be
responsible for the corporate funds and securities, shall keep full and accurate
accounts of receipts and disbursements in the books 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 of Directors, taking proper vouchers for such disbursements, and
shall render to the Chief Executive Officer and the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of all
his transactions as Treasurer and of the financial condition of the Corporation
and he shall perform all other duties incident to the position of Treasurer or
as may be prescribed by the Board of Directors or the Chief Executive Officer.
If required by the Board of. Directors, he shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties of his office and for
the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
SECTION 5.11 ASSISTANT TREASURERS. Each Assistant Treasurer shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors, the Chief
Executive Officer or the Treasurer. The Assistant Treasurer or such other person
designated by the Chief Executive Officer shall
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exercise the power of the Treasurer during that officer's absence or inability
to act.
SECTION 5.12 SUBORDINATE OFFICERS. The Board of Directors may (a)
appoint such other subordinate officers and agents as it shall deem necessary
who shall hold their offices for such terms, have such authority and perform
such duties as the Board of Directors may from time to time determine, or (b)
delegate to any committee or officer the power to appoint any such subordinate
officers or agents.
SECTION 5.13 SALARIES AND COMPENSATION. The salary or other
compensation of officers shall be fixed from time to time by the Board of
Directors. The Board of Directors may delegate to any committee or officer the
power to fix from time to time the salary or other compensation of subordinate
officers and agents appointed in accordance with the provisions of Section 5.12.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a) The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that such
person is or was, at any time, prior to or during which this Article VI is in
effect, a director, officer, employee or agent of the Corporation, or is or was,
at any time prior to or during which this Article VI is in effect, serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, other enterprise or
employee benefit plan against reasonable expenses (including attorneys' fees),
judgments, fines, penalties, amounts paid in settlement and other liabilities
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that such person did not act in good faith and
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in a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was, at any time prior to or during
which this Article VI is in effect, a director, officer, employee or agent of
the Corporation, or is or was, at any time prior to or during which this Article
VI is in effect, serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees), actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation; provided, that no indemnification shall be made under this
sub-section (b) in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the
extent that the Delaware Court of Chancery, or other court of appropriate
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity of such expenses which the Delaware
Court of Chancery, or other court of appropriate jurisdiction, shall deem
proper.
(c) Any indemnification under sub-sections (a) or (b) (unless ordered
by the Delaware Court of Chancery or other court of appropriate jurisdiction)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the circumstances
because he has met the applicable standard of conduct set forth in sub-sections
(a) and (b). Such determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors not parties such action, suit
or proceeding; or (2) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal
counsel, in written opinion, selected by the Board of Directors; or (3) by the
Stockholders. In the event a determination is made under this sub-section (c)
that the director, officer, employee or agent has met the applicable standard
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of conduct as to some matters but not as to others, amounts to be indemnified
may be reasonably prorated.
(d) Expenses incurred by a person who is or was a director or officer
of the Corporation in appearing at, participating in or defending any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, shall be paid by the Corporation at
reasonable intervals in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized by this Article VI.
(e) It is the intention of the Corporation to indemnify the persons
referred to in this Article VI to the fullest extent permitted by law and with
respect to any action, suit or proceeding arising from events which occur at any
time prior to or during which this Article VI is in effect. The indemnification
and advancement of expenses provided by this Article VI shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be or become entitled under any law, the Certificate
of Incorporation, these Bylaws, agreement, the vote of Stockholders or
disinterested directors or otherwise, or under any policy or policies of
insurance purchased and maintained by the Corporation on behalf of any such
person, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
(f) The indemnification provided by this Article VI shall be subject to
all valid and applicable laws, and in the event this Article VI or any of the
provisions hereof or the indemnification contemplated hereby are found to be
inconsistent with or contrary to any such valid laws, the latter shall be deemed
to control and this Article VI shall be regarded as modified accordingly, and,
as so modified, to continue in full force and effect.
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ARTICLE VII
CAPITAL STOCK
SECTION 7.1 CERTIFICATES OF STOCK. Certificates of stock shall be
issued to each Stockholder certifying the number of shares owned by him in the
Corporation and shall be in a form not inconsistent with the Certificate of
Incorporation and as approved by the Board of Directors. The certificates shall
be signed by the Chairman of the Board, the President or a Vice President and by
the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer and may be sealed with the seal of the Corporation or a facsimile
thereof. Any or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
If the Corporation shall be authorized to issue more than one (1) class
of stock or more than one (1) series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class or stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided by statute, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each Stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 7.2 LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the owner of such certificate, or his legal
representative. When authorizing the issuance of a new certificate, the Board of
Directors may in its discretion, as a condition precedent to the issuance
thereof, require the owner, or his legal representative, to give a bond in such
form and substance with such surety as it may direct, to indemnify the
Corporation against any claim that may be made on account of the alleged loss,
theft or destruction of such certificate or the issuance of such new
certificate.
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SECTION 7.3 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD FOR
CERTAIN PURPOSES. (a) In order that the Corporation may determine the
Stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of capital stock or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date, which
shall not be more than sixty (60) days prior to the date of payment of such
dividend or other distribution or allotment of such rights or the date when any
such rights in respect of any change, conversion or exchange of stock may be
exercised or the date of such other action. In such a case, only Stockholders of
record on the date so fixed shall be entitled to receive any such dividend or
other distribution or allotment of rights or to exercise such rights or for any
other purpose, as the case may be, notwithstanding any transfer of any stock on
the books of the Corporation after any such record date fixed as aforesaid.
(b) If no record date is fixed, the record date for determining
Stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
SECTION 7.4 DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, if any, and except as otherwise provided by law, the directors
may declare dividends upon the capital stock of the Corporation as and when they
deem it to be expedient. Such dividends may be paid in cash, in property or in
shares of the Corporation's capital stock. Before declaring any dividend there
may be set apart out of the funds of the Corporation available for dividends,
such sum or sums as the directors from time to time in their discretion think
proper for working capital or as a reserve fund to meet contingencies or for
equalizing dividends, or for such other purposes as the directors shall think
conducive to the interests of the Corporation and the directors may modify or
abolish any such reserve in the manner in which it was created.
SECTION 7.5 REGISTERED STOCKHOLDERS. Except as expressly provided by
law, the Certificate of Incorporation and these Bylaws, the Corporation shall be
entitled to treat registered Stockholders as the only holders and owners in fact
of the shares standing in their respective names and the Corporation shall not
be bound to recognize any equitable or other claim to or
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<PAGE> 20
interest in such shares on the part of any other person, regardless of whether
it shall have express or other notice thereof.
SECTION 7.6 TRANSFER OF STOCK. Transfers of shares of the capital stock
of the Corporation shall be made only on the books of the Corporation by the
registered owners thereof, or by their legal representatives or their duly
authorized attorneys. Upon any such transfers the old certificates shall be
surrendered to the Corporation by the delivery thereof to the person in charge
of the stock transfer books and ledgers, by whom they shall be cancelled and new
certificates shall be issued.
20
<PAGE> 21
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 8.1 CORPORATE SEAL. If one be adopted, the corporate seal shall
have inscribed thereon the name of the Corporation and shall be in such form as
may be approved by the Board of Directors. Said seal may be used by causing it
or a facsimile thereof to be impressed or affixed or in any manner reproduced.
SECTION 8.2 FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 8.3 CHECKS, DRAFTS, NOTES. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers, agent or
agents of the Corporation, and in such manner as shall from time to time be
determined by resolution (whether general or special) of the Board of Directors
or may be prescribed by any officer or officers, or any officer and agent
jointly, thereunto duly authorized by the Board of Directors.
SECTION 8.4 NOTICE AND WAIVER OF NOTICE. Whenever notice is required to
be given to any director or Stockholder under the provisions of applicable law,
the Certificate of Incorporation or of these Bylaws it shall not be construed to
only mean personal notice, rather, such notice may also be given in writing, by
mail, addressed to such director or Stockholder at his address as it appears on
the records of the Corporation, with postage thereon prepaid (unless prior to
the mailing of such notice he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address in which case, such notice shall be mailed to the address
designated in the request), and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram, cable or other form of recorded
communication, by personal delivery or by telephone. Whenever notice is required
to be given under any provision of law, the Certificate of Incorporation or
these Bylaws, a waiver thereof in writing, by telegraph, cable or other form of
recorded communication, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except
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<PAGE> 22
when the person attends a meeting for the express purpose of objecting at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
Stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation or these Bylaws.
SECTION 8.5 EXAMINATION OF BOOKS AND RECORDS. The Board of Directors
shall determine from time to time whether, and if allowed, when and under what
conditions and regulations the accounts and books of the Corporation (except
such as may by statute be specifically opened to inspection) or any of them
shall be open to inspection by the Stockholders, and the Stockholders rights in
this respect are and shall be restricted and limited accordingly.
SECTION 8.6 VOTING UPON SHARES HELD BY THE CORPORATION. Unless
otherwise provided by law or by the Board of Directors, the Chairman of the
Board of Directors, if one shall be elected, or the President, if a Chairman of
the Board of Directors shall not be elected, acting on behalf of the
Corporation, shall have full power and authority to attend and to act and to
vote at any meeting of Stockholders of any corporation in which the Corporation
may hold stock and, at any such meeting, shall possess and may exercise any and
all of the rights and powers incident to the ownership of such stock which, as
the owner thereof, the Corporation might have possessed and exercised, if
present. The Board of Directors by resolution from time to time may confer like
powers upon any person or persons.
ARTICLE IX
AMENDMENTS
SECTION 9.1 AMENDMENT. Except as otherwise expressly provided in the
Certificate of Incorporation, the directors, by the affirmative vote of a
majority of the entire Board of Directors and without the assent or vote of the
Stockholders, may at any meeting, provided the substance of the proposed
amendment shall have been stated in the notice of the meeting, make, repeal,
alter, amend or rescind any of these Bylaws. The Stockholders shall not make,
repeal, alter, amend or rescind any of the provisions of these Bylaws except by
the holders of not less than 80% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors,
considered for purposes of this Article IX as one class.
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<PAGE> 1
EXHIBIT 4.1
FIRST AMENDMENT TO THE RIGHTS AGREEMENT BETWEEN
SANTA FE ENERGY RESOURCES, INC.
AS PREDECESSOR TO
SANTA FE SNYDER CORPORATION,
AND
FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS RIGHTS AGENT
THIS FIRST AMENDMENT ("First Amendment") to the Rights Agreement, dated
as of March 3, 1997 (the "Rights Agreement"), is by and between Santa Fe Snyder
Corporation, successor to Santa Fe Energy Resources, Inc., a Delaware
corporation (the "Company"), and First Chicago Trust Company of New York, as
Rights Agent (the "Rights Agent"). This First Amendment is dated as of May 5,
1999. Capitalized terms used herein but not defined shall have the meanings
assigned to such terms in the Rights Agreement.
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore executed the
Rights Agreement; and
WHEREAS, the Company desires to amend the Rights Agreement to correct
typographical errors in the definition of "Preferred Shares" included in (i)
Section 1 of the Rights Agreement, (ii) the Summary of Rights included as
Exhibit C to the Rights Agreement and (iii) the Form of Right Certificate
included as Exhibit B to the Rights Agreement; and
WHEREAS, the Company desires to amend the Rights Agreement to revise
the second sentence of Section 11(a)(ii); and
WHEREAS, pursuant to the terms of that certain Agreement and Plan of
Merger, dated as of January 13, 1999, among Snyder Oil Corporation ("SOCO"), a
Delaware corporation and the Company, SOCO has merged with and into the Company,
with the Company as the surviving entity, and the Company has amended its
certificate of incorporation to change its name to Santa Fe Snyder Corporation
and has filed a certificate of increase to increase the number of shares of
Series A Junior Participating Preferred Stock to 3,000,000, and the Company
desires to amend the Rights Agreement to reflect these amendments to its
certificate of incorporation;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and in accordance with Section 27 of the Rights
Agreement, the parties hereby agree as follows:
<PAGE> 2
1. Section 1(u) of the Rights Agreement is hereby amended,
effective as of the date set forth above, by revising such Section to
read in its entirety as follows:
"Preferred Shares" shall mean shares of Series A Junior
Participating Preferred Stock, par value $.01 per share, of
the Company having the rights and preferences set forth in
the Form of Certificate of Designations attached to this
Agreement as Exhibit A.
2. The second sentence of Section 11(a)(ii) of the Rights
Agreement is hereby amended, effective as of the date set forth above,
by revising such section to read as follows:
Notwithstanding anything in this agreement to the contrary,
however, from and after the time (the "invalidation time")
when any Person first becomes an Acquiring Person, any
Rights that are beneficially owned by (x) any Acquiring
Person (or any Affiliate or Associate of any Acquiring
Person), (y) a transferee of any Acquiring Person (or any
such Affiliate or Associate) who becomes a transferee after
the invalidation time or (z) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who became a
transferee prior to or concurrently with the invalidation
time pursuant to either (I) a transfer from the Acquiring
Person to holders of its equity securities or to any person
with whom it has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (II) a
transfer which the Board of Directors has determined is part
of a plan, arrangement or understanding which has the
purpose or effect of avoiding the provisions of this
paragraph, and subsequent transferees of such Persons, shall
be void without any further action and any holder of such
Rights shall thereafter have no rights whatsoever with
respect to such Rights under any provision of this
Agreement.
3. Each usage in the Rights Agreement of "Santa Fe Energy
Resources, Inc." is hereby amended, effective as of the date set forth
above, to be "Santa Fe Snyder Corporation."
4. "2,000,000" in Section 1 of Exhibit A to the Rights
Agreement is amended, effective as of the date set forth above, to read
"3,000,000."
5. The Summary of Rights to Purchase Preferred Shares is
hereby amended, effective as of the date set forth above, by revising
the Summary of Rights to Purchase Preferred Shares included as Exhibit
C to the Rights Agreement to read in its entirety as set forth in the
Amended Summary of Rights to Purchase Preferred Shares included as
Annex I hereto.
<PAGE> 3
6. The Form of Right Certificate is hereby amended, effective
as of the date set forth above, by revising the Form of Right
Certificate included as Exhibit B to the Rights Agreement to read in
its entirety as set forth in the Amended Form of Right Certificate
included as Annex II hereto.
7. The Form of Certificate of Designations of Series A Junior
Participating Preferred Stock is hereby amended, effective as of the
date set forth above, by amending the Form of Certificate of
Designations of Series A Junior Participating Preferred Stock included
as Exhibit A to the Rights Agreement as set forth in the Certificate of
Increase of Authorized Number of Shares of Series A Junior
Participating Preferred Stock of Santa Fe Snyder Corporation included
as Annex III hereto.
8. Except to the extent amended by this First Amendment, the
Rights Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and attested, all as of the day and year first
written.
SANTA FE SNYDER CORPORATION
Attest:
By: /s/ Mark A. Older By: /s/ David L. Hicks
------------------------ -------------------------------------
Name: David L. Hicks
Title: Vice President -- Law and
General Counsel
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
Attest:
By: /s/ Mary Garcia By: /s/ Joanne Gorostiola
------------------------ -------------------------------------
Name: Joanne Gorostiola
Title: Assistant Vice President
<PAGE> 4
Annex I
SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES
On February 19, 1997, the Board of Directors of Santa Fe Energy
Resources, Inc., the predecessor of Santa Fe Snyder Corporation (the "Company")
declared a dividend of one preferred share purchase right (a "Right") for each
outstanding share of common stock, par value $.01 per share, of the Company (the
"Common Stock"). The dividend was paid on March 3, 1997 (the "Record Date") to
the stockholders of record on that date. Each Right entitles the registered
holder to purchase from the Company one one-hundredth of a share of Series A
Junior Participating Preferred Stock, par value $.01 per share, of the Company
(the "Preferred Shares") at a price of $42.00 (subject to adjustment as provided
in the Rights Agreement) (the "Purchase Price"). The description and terms of
the Rights are set forth in a Rights Agreement (the "Rights Agreement") between
the Company and First Chicago Trust Company of New York, as Rights Agent (the
"Rights Agent").
Until the earlier to occur of (i) 10 business days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired beneficial ownership of 15% or more of the
outstanding Common Stock or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors of the Company prior to such time
as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding Common Stock
(the earlier of such dates being the "Distribution Date"), the
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<PAGE> 5
Rights will be evidenced, with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock certificate with a copy
of this Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the Common Stock. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Stock certificates issued
after the Record Date upon transfer or new issuance of Common Stock will contain
a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Stock outstanding as of
the Record Date, even without such notation or a copy of this Summary of Rights
being attached thereto, will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire at 5:00 p.m., Houston, Texas time on July 25, 1999 (the "Final
Expiration Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each case, as
described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of,
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<PAGE> 6
the Preferred Shares; (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a conversion price,
less than the then-current market price of the Preferred Shares; or (iii) upon
the distribution to holders of the Preferred Shares of evidences of indebtedness
or assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividend payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date. If the Company shall pay any dividend or distribution to the
holders of its Common Stock consisting of evidences of indebtedness or assets
(excluding quarterly cash dividends) prior to the Distribution Date, then the
Purchase Price is also subject to adjustment.
Preferred Shares purchasable upon exercise of the Rights will be
nonredeemable. Each Preferred Share will have a minimum preferential quarterly
dividend rate of $1.00 per share, but will be entitled to an aggregate dividend
of 100 times the dividend declared on the Common Stock. In the event of
liquidation, the holders of the Preferred Shares will receive a preferential
liquidation payment equal to the greater of $1.00 or 100 times the payment made
per share of Common Stock. Each Preferred Share will have 100 votes, voting
together with the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which Common Stock are exchanged, each
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<PAGE> 7
Preferred Share will be entitled to receive 100 times the amount received per
share of Common Stock. These rights are protected by customary antidilution
provisions.
Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold after the first public announcement that a person or group has
become an Acquiring Person, proper provision will be made so that each holder of
a Right other than Rights beneficially owned by an Acquiring Person (which will
be void) will upon exercise have the right to receive, upon the exercise thereof
at the then current exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right. In the event that any
person or group of affiliated or associated persons becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter be void), will
upon exercise have the right to receive upon exercise that number of shares of
Common Stock having a market value of two times the exercise price of the Right.
At any time after the first public announcement that any person or
group has become an Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding Common Stock, the Board of Directors
of the Company may exchange the Rights (other than Rights owned by such person
or group which will have become void), in whole or in part, at an exchange ratio
of one share of Common Stock, or one one-hundredth of a Preferred Share (or of
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<PAGE> 8
a share of a class or series of the Company's Preferred Shares having equivalent
rights, preferences and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and, in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the close of business on the 10th business day
after the public announcement that an Acquiring Person has become such, the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $0.01 per Right (the "Redemption Price"). The redemption of
the Rights may be made effective at such time on such basis with such conditions
as the Board of Directors in its sole discretion may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive the Redemption
Price.
For so long as the Rights are then redeemable, the Company may in its
sole and absolute discretion amend the Rights Agreement without the consent of
the holders of the Rights, except that no amendment can be made to reduce the
Redemption price. At such time as the Rights have become non-redeemable, the
terms of the Rights may be amended by the Board of Directors of the Company
without the consent of the holders of the Rights, except that (i) no amendment
can be made to reduce the Redemption Price, (ii) no such amendment may adversely
affect the interest of the holders of the Rights and (iii) the redemption right
cannot be reinstated.
I-5
<PAGE> 9
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
February 28, 1997. A copy of the First Amendment to the Rights Agreement has
been filed with the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A/A dated May 11, 1999. Copies of the Rights
Agreement and the First Amendment to the Rights Agreement are available free of
charge from the Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement and the First Amendment to the Rights Agreement, which are hereby
incorporated herein by reference.
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<PAGE> 10
Annex II
Exhibit B
Form of Right Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER _______, 2007 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
SANTA FE SNYDER CORPORATION
This certifies that _____________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of March 3, 1997 (the "Rights Agreement"), between Santa Fe
Snyder Corporation, a Delaware corporation (the "Company"), and First Chicago
Trust Company of New York (the "Rights Agent"), to purchase from the Company at
any time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 P.M., Houston, Texas time, on July 25, 1999, at the
principal office of the Rights Agent, or at the office of its successor as
Rights Agent, one one-hundredth of a fully paid non-assessable share
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<PAGE> 11
of Series A Junior Participating Preferred Stock, par value $.01 per share, of
the Company (the "Preferred Shares") at a purchase price of $42.00 (subject to
adjustment as provided in the Rights Agreement) per one one-hundredth of a
Preferred Share (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number of one
one-hundredths of a Preferred Share which may be purchased upon exercise hereof)
set forth above, and the Purchase Price set forth above, are the number and
Purchase Price as of July 25, 1999, based on the Preferred Shares as constituted
at such date. As provided in the Rights Agreement, the Purchase Price and the
number of one one-hundredths of a Preferred Share which may be purchased upon
the exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised
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<PAGE> 12
in part, the holder shall be entitled to receive upon surrender hereof another
Right Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Right Certificate (i) may be redeemed by the Company at a redemption
price of $0.01 per Right or (ii) may be exchanged in whole or in part for
Preferred Shares or shares of the Company's Common Stock, par value $0.01 per
share.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Company, be evidenced by depositary receipts), but, in lieu thereof, a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
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<PAGE> 13
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of , .
SANTA FE SNYDER CORPORATION
ATTEST:
By:
- ------------------------ --------------------------------------
Name: Name:
Title: Title:
Countersigned: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By:
--------------------------------------
Name:
Title:
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<PAGE> 14
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________ hereby sells, assigns and
transfers onto ________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _________________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ,
----------------- --------
Signature
-------------------------
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
- --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
Signature
-------------------------
- --------------------------------------------------------------------------------
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<PAGE> 15
Form of Reverse Side of Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: SANTA FE SNYDER CORPORATION
The undersigned hereby irrevocably elects to exercise __________ Rights
represented by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of such Rights and requests that certificates for such
Preferred Shares be issued in the name of:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: ,
------------------ ---------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
(FORM OF REVERSE SIDE OF RIGHT CERTIFICATE -- CONTINUED)
- --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
Signature
- --------------------------------------------------------------------------------
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<PAGE> 16
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Right Certificate in every particular, without alteration or enlargement
or any change whatsoever.
In the event the certification act forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner of
the Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
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<PAGE> 17
Annex III
CERTIFICATE OF INCREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
SANTA FE SNYDER CORPORATION
(Pursuant to Section 151 of the General Corporation
Law of the State of Delaware)
Santa Fe Snyder Corporation, a corporation organized and existing under
the General Corporation Laws of the State of Delaware (the "Corporation").
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the Corporation was
filed in the office of the Secretary of State of Delaware on January 11, 1990,
and a Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock, was filed in said office of the Secretary of
State on March 3, 1997;
That the Board of Directors of the Corporation at a meeting held on
January 13, 1999, duly adopted a resolution authorizing and directing an
increase in the authorized number of shares of Series A Junior Participating
Preferred Stock of the Corporation, from 2,000,000 shares to 3,000,000 shares,
all in accordance with the provisions of Section 151 of the General Corporation
Law of the State of Delaware.
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<PAGE> 18
IN WITNESS WHEREOF, said Santa Fe Snyder Corporation has
caused this Certificate to be signed by David L. Hicks, its Vice President--Law
and General Counsel, this 5th day of May, 1999.
SANTA FE SNYDER CORPORATION
By:
-----------------------------------------
David L. Hicks
Vice President -- Law and General Counsel
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