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SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GOTHIC ENERGY CORPORATION
(Exact Name of Registrant as specified in its Charter)
OKLAHOMA 22-2663839
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
5727 SOUTH LEWIS AVENUE, SUITE 700, TULSA, OKLAHOMA 74105
(918) 749-5666
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
MICHAEL K. PAULK, PRESIDENT
5727 SOUTH LEWIS AVENUE, SUITE 700, TULSA, OKLAHOMA 74105
(918) 749-5666
(Name, address, including zip code, and telephone number, including area code,
of Agent for service)
With a Copy to:
WILLIAM S. CLARKE, ESQUIRE
457 NORTH HARRISON STREET, SUITE 103, PRINCETON, NEW JERSEY 08540
(609) 921-3663
Approximate date of commencement of proposed sale to public:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] __________
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER UNIT /(1)/ OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, 2,335,364 $2.625 $6,130,330 $1,860.00
$.01 par value
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7-1/2% Cumulative
Convertible Preferred 5,540 $1,250.00 $7,271,250 $2,203.00
Stock, $.05 par value
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Common Stock 2,770,000
$.01 par value /(2)/
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Common Stock 1,000,000 $3.19 $3,190,000 $967.00
Purchase Warrants
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Common Stock 200,000 $2.25 $450,000 $137.00
Purchase Warrants
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Common Stock, 1,200,000 $2.625 $3,150,000 $955.00
$.01 par value /(3)/
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$20,191,580 $6,122.00
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</TABLE>
(1) Estimated solely for the purpose of calculating the Registration Fee
pursuant to Rule 457(c) based on the average of the high and low sale prices of
the shares of Common Stock as reported on the Nasdaq SmallCap Market on February
28, 1997.
(2) Shares of Common Stock issuable on conversion of the 7-1/2% Cumulative
Convertible Preferred Stock.
(3) Shares of Common Stock issuable on exercise of Warrants.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PROSPECTUS
GOTHIC ENERGY CORPORATION
This Prospectus relates to the resale of up to 5,540 shares of 7 1/2%
Cumulative Convertible Preferred Stock, par value $.05 per share (the "Preferred
Stock"), 1,200,000 common stock purchase warrants (the "Warrants"), and
6,305,364 shares of Common Stock, par value $.01 per share (the "Common Stock"),
including 3,970,000 shares of Common Stock issuable on conversion of the
Preferred Stock and exercise of the Warrants, of Gothic Energy Corporation, an
Oklahoma corporation (the "Company"). Herein, the Common Stock, Preferred Stock
and Warrants are collectively referred to as the "Securities." The Common Stock
is traded on the Nasdaq SmallCap Market with a trading symbol of "GOTH" and
application has been made to trade the Preferred Stock on the Nasdaq SmallCap
Market. No assurance can be given that the Preferred Stock will be accepted for
trading on the Nasdaq SmallCap Market. On February 28, 1997, the last sale price
of the Common Stock as reported on the Nasdaq SmallCap Market was $2-5/8 . The
shares of Preferred Stock, Common Stock and Warrants may be offered (the
"Offering") for sale by certain persons who are securityholders of the Company
or by pledgees (the "Selling Securityholders") who were issued such shares in
transactions not involving a public offering. The Securities are being
registered under the Securities Act of 1933, as amended (the "Securities Act")
on behalf of the Selling Securityholders in order to permit the public sale or
other distribution of the Securities.
The shares of Preferred Stock, Common Stock and Warrants may be sold
or distributed from time to time by or for the account of the Selling
Securityholders through underwriters or dealers, through brokers or other
agents, or directly to one or more purchasers, including pledgees, at market
prices prevailing at the time of sale or at prices otherwise negotiated. This
Prospectus may also be used, with the Company's consent, by donees of the
Selling Securityholders, or by other persons acquiring shares and who wish to
offer and sell such Securities requiring or making desirable its use. The
Company will receive no portion of the proceeds from the sale of the securities
offered hereby and will bear certain expenses incident to their registration.
See "Selling Securityholders" and "Plan of Distribution."
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INVESTORS SHOULD CAREFULLY CONSIDER CERTAIN RISKS AND OTHER CONSIDERATIONS
RELATING TO THE SECURITIES OF THE COMPANY. SEE "RISK FACTORS" STARTING ON PAGE
16 OF THIS PROSPECTUS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
MARCH _____, 1997
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING
SECURITYHOLDERS. NEITHER THE DELIVERY OF THE PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder, and, in accordance therewith, files
reports, proxy and information statements and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy and
information statements and other information concerning the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, Northwest, Washington, DC 20549; and
at the Commission's regional offices located at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and at Seven World Trade Center, Suite 1300, New
York, New York 10048. Copies of such material can also be obtained from the
Commission at prescribed rates through its Public Reference Section at 450 Fifth
Street, Northwest, Washington, DC 20549. The Commission maintains a Web site
that contains reports, proxy and information statements and other information
regarding issuers that file electronically with the Commission and the address
of that Web site is http://www.sec.gov. The Common Stock is traded on the
Nasdaq SmallCap Market ("Nasdaq"). Information filed by the Company with Nasdaq
may be inspected at the offices of Nasdaq at 1735 "K" Street, Northwest,
Washington, DC 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended ("Securities Act") with
respect to the securities offered hereby (including all amendments and
supplements thereto, the "Registration Statement"). This Prospectus, which
forms a part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement, certain parts of which have
been omitted in accordance with the rules and regulations of the Commission.
Statements contained herein concerning the provisions of certain documents are
not necessarily complete and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference. The Registration Statement and the exhibits thereto can be
inspected and copied at the public reference facilities and regional offices of
the Commission and at the offices of Nasdaq referred to above.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference in this Prospectus:
(a) The Annual Report of the Company on Form 10-KSB for the fiscal year
ended December 31, 1996; and
(b) The Current Report of the Company on Form 8-K dated February 18, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, subsequent to the date of this Prospectus and prior
to the termination of the offerings to which this Prospectus relates shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded by this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge copies of all
documents incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference in
such documents) to each person, including any beneficial owner, to whom a copy
of this Prospectus has been delivered on the written or oral request of such
person to:
Michael K. Paulk, President
Gothic Energy Corporation
5727 South Lewis Avenue - Suite 700
Tulsa, Oklahoma 74105
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information..................................................... 1
Incorporation of Certain Information by Reference......................... 2
Table of Contents......................................................... 3
The Company............................................................... 4
Risk Factors.............................................................. 12
Use of Proceeds........................................................... 16
Selling Securityholders................................................... 17
Plan of Distribution...................................................... 20
Description of Capital Stock.............................................. 21
Legal Matters............................................................. 25
Experts................................................................... 25
</TABLE>
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<PAGE>
THE COMPANY
Gothic Energy Corporation (the "Company") is an independent energy
company primarily engaged in the acquisition, exploitation, enhancement,
development and operation of oil and gas producing properties. The Company owns,
as of the date hereof, working interests in 697 wells, of which 358 are operated
by the Company. The Company estimates its net proved reserves at December 31,
1996 to be 1.2 million barrels of oil and 64.5 billion cubic feet of natural
gas. Approximately 90% of the Company's proved reserves at an equivalent Mcf.
basis are natural gas. The Company's operations are conducted in Oklahoma,
Texas, Arkansas and Kansas. The majority of oil and gas wells in which the
Company has an interest have produced beyond the point in time where substantial
production declines are normally expected. Accordingly, production rates on a
majority of the Company's wells generally will be marked by a consistency of
production rates throughout the remaining production life. The Company
redirected its business efforts to the oil and gas business commencing in the
last quarter of 1994. Since 1994, the Company has acquired the following
properties:
Oil and Gas Properties acquired through December 31, 1996
Egolf Acquisition: On January 19, 1995, the Company completed the
-----------------
acquisition from the Egolf Company of working interests in 208 oil and gas wells
located in Western Oklahoma (the "Egolf Acquisition") for a total purchase price
of $1,584,000 plus one-year common stock purchase warrants to purchase 100,000
shares of the Company's common stock at an exercise price of $2.50 per share.
The warrants expired unexercised. All of the acreage acquired in the Egolf
Acquisition is held by production.
Johnson Ranch Acquisition: Effective May 31, 1995, the Company
-------------------------
completed the acquisition from Johnson Ranch Partners of working interests in 69
oil and gas wells in Loving County, Texas (the "Johnson Ranch Acquisition").
The purchase price was $7,250,000 plus 1,000,000 shares of Common Stock valued
at $2.69 per share, the closing market price on the date the acquisition was
completed. Substantially all of the acreage acquired in the Johnson Ranch
Acquisition is held by production.
Buttonwood Acquisition: Pursuant to an agreement dated September 27,
----------------------
1995 between the Company and Buttonwood Energy Corporation ("Buttonwood"), the
Company acquired on January 30, 1996, by merger of a subsidiary of the Company
into Buttonwood, all of the issued and outstanding shares of Buttonwood (the
"Buttonwood Acquisition"). The merger consideration was $18,912,500 payable in
cash. The Company paid to Buttonwood on November 15, 1995 $1,000,000 as
consideration for
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the grant of the option to be applied to the merger consideration. Concurrently
with entering into the option agreement on September 27, 1995, the parties
terminated without being exercised a similar option purchased by the Company in
March 1995 for $1,850,000. The remaining $17,912,500 was paid to Buttonwood on
the closing of the transaction. Buttonwood, through its wholly owned
subsidiaries, owned interests in 750 oil and gas wells in Oklahoma, Arkansas,
Texas and Kansas and operated 140 of the wells. All of Buttonwood's 61,897 net
leasehold acres are held by production.
Comstock Acquisition: On May 16, 1996, the Company completed the
--------------------
acquisition, effective as of January 1, 1996, from Comstock Oil and Gas, Inc.
and Comstock Offshore Energy, Inc. (the "Comstock Acquisition"), of various
working interest in 145 producing oil and gas properties. The Company operates
70 of the wells. The purchase price for the properties acquired was $6.6
million, subject to certain post-closing adjustments which reduced the amount
paid to $6,430,195. Substantially all of the properties acquired are located in
the Anadarko Basin of western Oklahoma and the Arkoma Basin of eastern Oklahoma
and Arkansas.
Stratum Acquisition: On May 20, 1996, the Company acquired from
-------------------
Stratum Group Energy Capital, L.P. and Stratum Corp. (the "Stratum
Acquisition"), effective April 1, 1996, the overriding royalty interest of 7% of
the net revenues derived from the properties acquired in the Johnson Ranch
Acquisition. This royalty interest had been conveyed to Stratum as additional
consideration for financing provided by Stratum to the Company in May 1995 for
the Johnson Ranch Acquisition. The purchase price was $800,000.
Various Working Interest Acquisitions: On August 5, 1996, the Company
-------------------------------------
completed the acquisition, from various sellers, of working interests in
approximately 120 wells in the Anadarko Basin of Western Oklahoma, and the
Arkoma Basin of Eastern Oklahoma and Arkansas (the "Working Interest
Acquisitions"). The effective date of the acquisition was May 1, 1996. The
Company operates 70 of the wells in which the interests were acquired. The
aggregate purchase price for these wells was $3,270,000.
Athena Acquisition: On December 27, 1996, the Company completed the
------------------
acquisition, effective as of November 1, 1996, from Athena Energy, Inc. of
various working interests in 85 producing oil and gas properties (the "Athena
Acquisition"). The Company operates approximately 30 of the wells. The
purchase price for the properties acquired was $4.2 million, subject to certain
adjustments. Substantially all the properties acquired are located in western
Oklahoma and the Texas Panhandle.
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Subsequent to year end, substantially all of the non-operated well interests
acquired from Athena were sold for net proceeds of approximately $210,000.
Excluding the Egolf Acquisition and the Johnson Ranch Acquisition, the
foregoing acquisitions are referred to herein as the "1996 Acquisitions."
Acquisitions Subsequent to Year-End 1996
The Norse Acquisition: On February 18, 1997, the Company acquired from
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Norse Exploration, Inc., and Norse Pipeline, Inc. (collectively, "Norse"),
various working interests in 11 oil and gas producing properties and, through
the acquisition of the outstanding capital stock of Norse Pipeline, Inc., its
40.09% general partnership interest in the Sycamore Gas System (the "Sycamore
System"), an Oklahoma gathering system, processing plant and storage facility.
The oil and gas wells and the gathering system are located in the Springer Field
in Carter County, Oklahoma. The total purchase price was $10,750,000, plus two-
year warrants to purchase 200,000 shares of the Company's Common Stock at a per
share exercise price of $2.50, of which the Company paid a deposit of $1,075,000
toward the purchase price in December 1996. The estimated fair value of such
warrants at the date of acquisition was approximately $254,000.
The Huffman Acquisition: The Company also on February 18, 1997, acquired
-----------------------
from H. Huffman & Company ("Huffman"), an Oklahoma limited partnership, various
working interests in 13 oil and gas producing properties and an additional
10.97% interest in the Sycamore System. The oil and gas wells are located in the
same producing area as the properties acquired from Norse. The total purchase
price for the assets acquired was $3,950,000, of which the Company paid a
deposit of $287,500 toward the purchase price in December 1996.
Horizon Acquisition: The Company also acquired, on February 18, 1997, from
-------------------
Horizon Gas Partners, L.P. and HSRTW, Inc. (collectively, "Horizon"), various
working and royalty interests in approximately 100 oil and gas producing
properties. The producing properties are located in Major and Blaine counties
of Oklahoma. The purchase price was $10,000,000.
The effective date of all three acquisitions was January 1, 1997.
Oil and Gas Property Dispositions
Management of the Company reviews the properties acquired and from time to
time disposes of wells that are deemed to be unprofitable, fail to meet
management's
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<PAGE>
operating requirements or, under certain circumstances, are operated by other
persons. From time to time, the Company disposes of wells operated by the
Company where the well does not meet operating requirements. During the year
ended December 31, 1996, the Company disposed of various interests in an
aggregate of 514 properties for a total sales price of $3,111,298. Of such
amount, $2,402,096 was applied to reduce outstanding indebtedness and $709,202
was used for working capital purposes.
FINANCING TRANSACTIONS
The Company financed its oil and gas acquisition activities through
the completion of the following transactions:
Bank One Loan Agreement: On January 19, 1996, the Company entered into a
-----------------------
Loan Agreement with Bank One, Texas, N.A., (the "January 1996 Loan Agreement")
which, reflecting subsequent amendments, enabled the Company to borrow, as of
December 31, 1996, and subject to meeting certain borrowing base requirements
and other conditions, a maximum aggregate of $25,000,000, consisting of a
$20,000,000 revolving loan and a $5,000,000 acquisition note. On January 30,
1996, $11,000,000 was used to finance a portion of the purchase price for the
Buttonwood Acquisition and repay outstanding indebtedness. Additional proceeds
of $7,230,195 were used on May 16, 1996 to finance the Comstock Acquisition and
the Stratum Acquisition, and on July 31, 1996, proceeds of $2,792,200 were used
to finance the acquisition of well interests from various sellers. In December
1996, additional proceeds of $5,505,701 were used to finance the $4,214,406
purchase price for the Athena Acquisition, and $1,291,295 of the down payments
for the Norse and Huffman Acquisitions. The Company has repaid principal in the
amount of $4,784,096 under the borrowing facility since January 30, 1996. The
terms of the January 1996 Loan Agreement provided for amortization payments, as
of December 31, 1996, at the rate of $240,000 per month under the revolving loan
commencing September 1, 1996, with all outstanding principal and interest due
and payable on January 30, 1999. Of the $5,000,000 acquisition note, $3,010,000
was outstanding at year end and was due on March 31, 1997. Under the terms of
the January 1996 Loan Agreement, as in effect at December 31, 1996, interest was
payable, at the option of the Company, either at the rate of 1% over the
lending bank's base rate or up to 3.75% (based on the principal balance
outstanding) over the rate for borrowed dollars by the lending bank in the
London Interbank market and the indebtedness was collateralized by first liens
on all of the Company's oil and gas properties. The January 1996 Loan Agreement
included various affirmative and negative covenants, including, among others,
the requirements that the Company (i), maintain a ratio of current assets to
current liabilities, as defined, of no less than 1.0 to
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1.0, (ii) maintain a debt service coverage ratio of net cash flow per quarter to
required quarterly reduction of indebtedness of not less than 1.10 to 1.0, (iii)
maintain minimum tangible net worth at the end of each fiscal quarter of
$10,250,000, plus certain percentages of net income and proceeds received from
the sale of securities, and (iv) maintain selling, general and administrative
expenses per quarter not in excess of 25% of consolidated net revenues. Material
breaches of these or other covenants which were not cured or waived could have
resulted in a default under the loan agreement resulting in the indebtedness
becoming immediately due and payable and empowering the lender to foreclose
against the collateral for the loan. During the year ended December 31, 1996 the
Company requested and obtained a waiver of the provision requiring a 1:1 ratio
of current assets to current liabilities for the year ended December 31, 1996
and for quarter ended September 30, 1996, the restriction on general and
administrative expenses for the quarter ended March 31, 1996, and a covenant
violated as a result of the termination of a former officer of the Company.
Public Offering. On January 30 and March 11, 1996, the Company sold for
---------------
net proceeds aggregating approximately $12,966,000 an aggregate of 7,635,000
shares of Common Stock and 7,635,000 five-year redeemable common stock purchase
warrants (herein referred to as the "Public Offering"). The warrants are
exercisable at a price of $2.40 per share of Common Stock. In connection with
the offering, the underwriter was granted an option to acquire 230,000 units
(each unit consisting of three shares of common stock and three five-year
redeemable common stock purchase warrants) exercisable at a price of $9.90 per
unit. All of the proceeds of the sale of these securities were used in
conjunction with the Buttonwood Energy Acquisition.
Preferred Stock Financing. The Company issued and sold on January 30, 1996
-------------------------
an aggregate of 5,540 shares of its 7 1/2% Cumulative Convertible Preferred
Stock for a total consideration of $5,540,000, of which $4,250,000, less
$252,570 in fees, was paid in cash, and $1,290,000 was paid by exchange of
$1,290,000 of outstanding principal amount of indebtedness for 1,290 shares of 7
1/2% Cumulative Preferred Stock (herein referred to as the "Preferred Stock
Financing"). The Company also issued 28,667 shares of Common Stock to one of
the purchasers as a fee for facilitating the preferred stock financing. The
shares are convertible, commencing December 31, 1996, into shares of the
Company's Common Stock at a conversion price per share of Common Stock equal to
the lesser of (i) $2.00 or (ii) a price equal to the average of the closing
prices of the Company's Common Stock during the 30 business days prior to the
day the shares are converted less a discount of 12 1/2%. The number of shares
of Common Stock to be issued on conversion is determined by multiplying the
number of shares of 7 1/2% Cumulative Convertible Preferred Stock to be
converted by $1,000 and dividing the result by the conversion price in effect.
The shares pay a cumulative preferred
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dividend of 7 1/2% of the stated value per annum payable semi-annually. The
shares of 7 1/2% Cumulative Convertible Preferred Stock have no voting rights.
The holders of 51% of the shares issuable on conversion of the 7 1/2% Cumulative
Convertible Preferred Stock have the right to require the Company to file a
registration statement under the Securities Act of 1933, as amended, commencing
December 31, 1996 to enable the public sale of those shares of Common Stock.
Credit Facility. On February 17, 1997, the Company and Bank One, Texas,
---------------
N.A., entered into a Restated Loan Agreement (the "Credit Facility") which
currently enables the Company to borrow from time to time and subject to meeting
certain borrowing base requirements and other conditions, a maximum aggregate of
$75,000,000. As of February 17, 1997, the aggregate available to be borrowed
under the Credit Facility is comprised of a $32,000,000 borrowing availability
(the "Borrowing Base") based on the Company's oil and gas reserves, a
$10,000,000 special advance facility (the "Special Advance Facility") and a
$2,000,000 special drilling facility (the "Special Drilling Facility").
On February 18, 1997, the Company drew down both the Borrowing Base and the
Special Advance Facility for a total of $41,668,000. These funds were used to
repay all existing indebtedness then outstanding owing to the bank in the amount
of $21,264,000, to finance the cash consideration paid for the three February
18, 1997 acquisitions discussed above which aggregated $19,404,000 and to pay a
$1,000,000 loan fee to Bank One, Texas, N.A. The terms of the Credit Facility
currently provide for amortization payments at the rate of $240,000 on March 1,
1997 and increasing to $475,000 per month commencing April 1, 1997, with all
outstanding principal and interest related to the Borrowing Base is due and
payable on January 30, 1999. The $10,000,000 Special Advance Facility is due on
September 1, 1997. Interest is payable, at the option of the Company, either
at the rate of 1% over the lending bank's base rate or up to 3.75% (based on the
principal balance outstanding) over the rate for borrowed dollars by the lending
bank in the London Interbank market. The indebtedness is collateralized by
first liens on all of the Company's oil and gas properties. The Credit Facility
includes various affirmative and negative covenants, including, among others,
the requirements that the Company (i), maintain a ratio of current assets to
current liabilities, as defined, of no less than 1.0 to 1.0, (ii) maintain a
debt service coverage ratio of net cash flow per quarter to required quarterly
reduction of indebtedness of not less than 1.10 to 1.0, (iii) maintain minimum
tangible net worth at the end of each fiscal quarter of $10,250,000, plus
certain percentages of net income and proceeds received from the sale of
securities, and (iv) maintain selling, general and administrative expenses per
quarter of not in excess of 25% of consolidated net revenues for the quarter
ended March 31, 1997 and 20% of consolidated net revenues
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for all subsequent quarters. The Company is obligated under the terms of its
Credit Facility to enter into commodity hedges covering not less than 75% of the
Company's proved developed production of oil and natural gas for a period of not
less than twelve months with minimum floor prices to be mutually agreed upon by
the Company and Bank One, Texas, N.A., with counterparties acceptable to the
bank. These commodity hedges are required to be in place no later than March 4,
1997. Material breaches of these or other covenants which are not cured or
waived could result in a default under the Credit Facility resulting in this
indebtedness becoming immediately due and payable and empowering the lender to
foreclose against the collateral for the loan. In the event certain promissory
notes owing to the bank by Messrs. Michael Paulk and John Rainwater in the
aggregate amount of $316,000 are not paid when due on December 31, 1997, the
Company has agreed that such amounts will be drawn against the Company's Credit
Facility and Messrs. Paulk and Rainwater will be obligated to the Company for
such sums.
Bridge Financing. In order to provide the remaining funds necessary to
----------------
complete the Norse, Huffman, and Horizon acquisitions, on February 18, 1997 two
investors loaned to the Company the aggregate sum of $4,500,000 represented by
the Company's promissory notes. Of the aggregate amount, $2,500,000 bears
interest at 5% per annum and matures on April 18, 1997, with the remaining
$2,000,000 bearing interest at 12% per annum and maturing on October 31, 1997.
In the event the principal and accrued interest is not paid when due, such
amount is automatically converted into a number of shares of the Company's
Common Stock determined by dividing such amount by a sum equal to 75% of the
closing bid price for the Company's Common Stock on the five (5) days prior to
the maturity date, with respect to the $2,500,000 obligation, and on the
maturity date with respect to the $2,000,000 obligation. As additional
consideration for making the loan, the investors also purchased at a price of
$.01 per share a total of 250,000 shares of the Company's common stock. The
fair market value of the Company's Common Stock was $2.63 per share on the date
of issuance.
The Company is an Oklahoma corporation incorporated on October 11, 1996.
The Company's predecessor was incorporated on November 19, 1985 under the laws
of the State of New Jersey and was thereafter reincorporated as a Delaware
corporation on June 23, 1994. On October 22, 1996, the Company was
reincorporated as an Oklahoma corporation by merger of the Delaware predecessor
into the Oklahoma corporation. The Company's principal office is at 5727 South
Lewis Avenue, Suite 700, Tulsa, Oklahoma 74105, and its telephone number is
(918) 749-5666.
-14-
<PAGE>
Prior to November 30, 1994, the Company was engaged in the publication
of the Pike County Dispatch, a weekly newspaper distributed throughout Pike
County, Pennsylvania and surrounding areas of New Jersey and New York. On
November 30, 1994, the Company sold all of the outstanding stock of the
subsidiary which operated the Pike County Dispatch.
-15-
<PAGE>
RISK FACTORS
An investment in the Company's Securities involves a high degree of
risk. In addition to general investment risks and those factors set forth
elsewhere in this Prospectus, prospective investors should consider, among other
things, the following factors:
1. Limited Operating History; History of Losses; Accumulated
---------------------------------------------------------
Deficit. The Company has a short operating history in the oil and gas industry,
- -------
having entered that business in November 1994 after being engaged in an entirely
different business prior thereto. Except for the fiscal quarters ended June 30,
1996, September 30, 1996 and December 31, 1996, during which its net income
available for common shares was $108,386, $112,121 and $476,990, respectively,
the Company has achieved losses during the time it has been engaged in oil and
gas operations and also during all other periods since its organization in 1985.
It can be expected that the Company may continue to experience losses. In order
to achieve material profits and generate cash flow, the Company will be
dependent upon acquiring or developing additional oil and gas properties. There
can be no assurance that it will be able to do so. At December 31, 1996, the
Company's accumulated deficit was $17,823,175.
2. Limited Available Capital; Need for Additional Financing. The
--------------------------------------------------------
Company's plans include the acquisition of producing oil and gas properties
located in the Anadarko, Arkoma and Delaware geological basins in Oklahoma,
Texas and New Mexico. Without raising additional capital, the Company will be
unable to acquire additional producing oil and gas properties and its ability to
develop its existing oil and gas properties will be limited to the extent of its
available cash flow. Accordingly, in order for the Company to achieve its
business objective and achieve material profits from operations, it will be
necessary to generate additional cash flow from operations, raise additional
capital or enter into joint oil and gas well development arrangements.
Management intends to fund future acquisitions and develop its oil and
gas reserves using cash flow from operations as well as public and private sales
of debt and equity securities and joint oil and gas well development
arrangements, among other possible sources. Except for borrowing availability,
if any, under its existing credit facility, the Company has no present
arrangements for future borrowings and its cash flow from operations is not
expected to be adequate to provide the funds needed for these purposes. There
can be no assurance that these sources will provide funds in sufficient amounts
to allow the Company to successfully implement its present business strategy of
additional property acquisition or the development of its oil and gas reserves.
The Company has no present definitive agreements to raise additional
-16-
<PAGE>
capital from the sale of its securities or joint development arrangements,
however, negotiations in this regard are ongoing. No assurance can be given as
to the availability or terms of any such additional financing or joint
development arrangements or that such terms as are available may not be dilutive
to the interests of the Company's stockholders.
3. Industry Conditions; Impact on Company's Profitability. The
------------------------------------------------------
profitability and revenues of the Company are dependent, to a significant
extent, upon prevailing spot market prices for oil and gas. In the past, oil
and gas prices and markets have been volatile. Prices are subject to wide
fluctuations in response to changes in supply of and demand for oil and gas,
market uncertainty and a variety of additional factors that are beyond the
control of the Company. Such factors include supply and demand, political
conditions, weather conditions, government regulations, the price and
availability of alternative fuels and overall economic conditions. Gas prices
have fluctuated significantly over the past twelve months.
4. Acquisition Strategy. The Company is engaged in an ongoing
--------------------
program of seeking to acquire additional oil and gas properties and negotiations
with various parties are ongoing from time to time with a view to acquiring
additional properties. There can be no assurance that the negotiations the
Company engages in seeking to acquire additional oil and gas properties will
result in acquisitions of properties or that the terms of such acquisitions will
be favorable to the Company or prove to be profitable. The process of
integrating any properties that are acquired into the Company's operations may
result in unforeseen difficulties and may require a disproportionate amount of
management's attention and the Company's resources. In connection with
acquisitions, the Company could become subject to significant contingent
liabilities arising from the activities of the acquired properties to the extent
the Company assumes, or an acquired entity becomes liable for, unknown or
contingent liabilities or in the event that such liabilities are imposed on the
Company under theories of successor liability.
5. Credit Facility Covenants and Agreements. The principal
----------------------------------------
outstanding under the Company's loan agreement with Bank One, Texas, N.A., as
such loan agreement was restated on February 17, 1997, must be amortized at the
rate of $240,000 per month on March 1, 1997 and increasing to $475,000 per month
thereafter, commencing April 1, 1997, with the entire outstanding balance of the
Borrowing Base due January 30, 1999. The $10,000,000 Special Advance Facility is
due on September 1, 1997. The Credit Facility is secured by first mortgages on
all of the Company's oil and gas properties. The loan agreement relating to the
Credit Facility contains various affirmative and negative covenants including,
among others,
-17-
<PAGE>
the requirements that the Company maintain certain ratios of current assets to
current liabilities, debt service coverage ratio, minimum tangible net worth,
restrictions on selling, general and administrative expenses and the payment of
dividends, and a covenant that the Company maintain twelve-month hedges for at
least 75% of its proved production. Material breaches of these or other
covenants which are not cured or waived could result in a default under the loan
agreement resulting in this indebtedness becoming immediately due and payable
and empowering the lender to foreclose against the collateral for the loan.
Under such circumstances, the Company's stockholders could lose their entire
investment. There can be no assurance that the Company will remain in compliance
with all of its covenants and agreements in the Credit Facility. The Company's
borrowings under the Credit Facility as well as its projected borrowing are, to
a large extent, a function of the value of the Company's oil and gas reserves
which are the primary component used in determining the amount of borrowing
available to the Company. Changes in the Company's cash needs or borrowing
availability could negatively impact the Company's reserve development plans or
its ability to meet its obligations as they come due. Negative revisions in oil
and gas reserves could require reductions in the principal amounts or otherwise
reduce funds available to be borrowed under the Credit Facility. During the year
ended December 31, 1996 the Company requested and obtained a waiver of the
provision requiring a 1:1 ratio of current assets to current liabilities for the
year ended December 31, 1996 and for quarter ended September 30, 1996, the
restriction on general and administrative expenses for the quarter ended March
31, 1996, and a covenant violated as a result of the termination of a former
officer of the Company.
6. Reliance on Estimates of Proved Reserves; Depletion of Reserves.
---------------------------------------------------------------
There are numerous uncertainties inherent in estimating quantities of Proved
Reserves and in projecting future rates of production and timing of development
expenditures, including many factors beyond the control of the producer. Oil and
gas reserve engineering is a subjective process of estimating underground
accumulations of oil and gas that cannot be measured in an exact way, and
estimates by other engineers might differ from those used and relied on by the
Company. The accuracy of any reserve estimate is a function of the quality of
available data and of engineering and geological interpretation and judgment.
The Company's annual report on Form 10-KSB for the year ended December 31, 1996
contains estimates of the Company's proved oil and gas reserves and the
projected future net cash flows therefrom. Actual future production, oil and
gas prices, revenue, capital expenditures, taxes and operating expenses may vary
substantially from those assumed in making estimates, and the Company's reserves
may be subject to material upward or downward revision and the rate of
production from oil and gas properties declines as reserves are depleted. In
addition, the Company's ability to develop its reserves will be dependent upon
the timely availability
-18-
<PAGE>
of financing for this purpose without which the Company's ability to produce the
projected amounts of oil and gas will be adversely affected thereby adversely
affecting the projected future net cash flows.
7. Dependence on Other Operators. With respect to wells not
-----------------------------
operated by the Company in which it has a working interest, the independent
operators are, in some cases, privately-held companies who may have limited
financial resources. If a third party operator experiences financial difficulty
and fails to pay for materials and services in a timely manner, the wells
operated by such third party operators could be subject to material and
workmen's liens. In such event, the Company would incur costs in discharging
such liens.
8. Reliance on Key Personnel. The Company is dependent upon the
-------------------------
services of its President, Michael K. Paulk, and Vice-President of Corporate
Development, John Rainwater. The loss of their services could have a material
adverse effect upon the Company.
9. Competition. The oil and gas industry is highly competitive.
-----------
The Company competes with major integrated and independent oil and gas companies
in acquiring properties. Many competitors have resources substantially
exceeding the resources of the Company.
10. Operational Hazards; Environmental Concerns; Insurance and
----------------------------------------------------------
Government Regulations. The oil and gas industry involves a number of operating
- ----------------------
risks, such as the risks of fire, blowouts, explosions, cratering, pipe failure,
casing collapse and abnormally pressured formations, the occurrence of any of
which could materially and adversely affect the Company. The business is also
subject to environmental hazards including oil spills, gas leaks, ruptures and
discharges of toxic gases, which could expose the Company to substantial
liability due to environmental damage. The Company maintains insurance against
some, but not all, potential risks, and does not carry insurance covering
environmental impairment liabilities. The Company can provide no assurance that
the insurance it carries will be adequate to cover any loss or exposure to
liability, or that such insurance will continue to be available on terms
acceptable to the Company. In addition, oil and gas production is subject to
regulation under federal, state and local laws. The Company's operations are
also subject to various other federal, state and local government laws and
regulations, which may be changed from time to time in response to economic or
political factors. There can be no assurance that present or future regulation
will not adversely affect the operations of the Company.
-19-
<PAGE>
11. Dividends Unlikely. The Company has never declared or paid
------------------
dividends on its Common Stock and currently does not intend to pay dividends in
the foreseeable future. The payment of dividends in the future will be at the
discretion of the Board of Directors. In addition, the Company's Credit
Facility contains a provision which prohibits the payment of dividends except
for cash dividends on preferred stock provided no event of default exists under
the Credit Facility.
12. Limited Liability of Directors. The Company's Certificate of
------------------------------
Incorporation limits the liability of Directors to the maximum extent permitted
by Oklahoma law. Oklahoma law provides that Directors of a corporation will not
be liable to the corporation or its stockholders for expenses incurred in
derivative or third party actions arising from a breach of their fiduciary duty
as Directors, except in certain circumstances. Accordingly, except in such
circumstances, the Company's Directors will not be liable to the Company or its
stockholders for beach of such duty.
USE OF PROCEEDS
This Prospectus relates solely to the securities being offered and
sold for the account of the Selling Securityholders. The Company will not
receive any of the proceeds from the sale of the securities being offered by the
Selling Securityholders but will pay all expenses related to the registration of
the securities. The proceeds, if any, received from the exercise of any
Warrants included among the Securities will be used for general corporate
purposes. See "Selling Securityholders."
-20-
<PAGE>
SELLING SECURITYHOLDERS
The following table sets forth the aggregate numbers of securities
beneficially owned by each Selling Securityholder as of March 1, 1997 and the
aggregate number of securities registered hereby that each Selling
Securityholder may offer and sell pursuant to this Prospectus. Because the
Selling Securityholders may sell all or a portion of the securities at any time
and from time to time after the date hereof, no estimate can be made of the
number of shares of Preferred Stock and Common Stock and Common Stock Purchase
Warrants that each Selling Securityholder may retain upon the completion of the
Offering. The material relationships of the Selling Securityholders are
described in the footnotes to the following table and more fully described in
this Prospectus (including the information incorporated by reference in this
Prospectus). The Securities have been included in this Prospectus pursuant to
contractual rights granted to the Selling Securityholders to have their
Securities registered under the Securities Act, which contractual rights
contain, with respect to certain of the Selling Securitholders, mutual
indemnification provisions.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER OF SECURITIES TO BE
SECURITIES OWNED PRIOR TO OFFERED FOR SELLING
THIS OFFERING SECURITYHOLDERS' ACCOUNT
- ------------------------------------------------------------------------------------------------------------------------------
COMMON COMMON
PREFERRED STOCK COMMON PREFERRED STOCK
NAME OF SELLING SECURITYHOLDER STOCK PURCHASE STOCK STOCK PURCHASE COMMON
WARRANTS WARRANTS STOCK
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
B-MAC Trading, Inc. 100 --- 50,000 /(1)/ 100 --- 50,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Benitz & Partners 1,350 --- 675,000 /(1)/ 1,350 --- 675,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
C. Channing Buckland 125 --- 62,500 /(1)/ 125 --- 62,500 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Choi & Choi HK Limited 400 --- 200,000 /(1)/ 400 --- 200,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Gregory Chorny 100 --- 50,000 /(1)/ 100 --- 50,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Finsbury Advisors (Cayman) Ltd. 200 --- 100,000 /(1)/ 200 --- 100,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Jodamada Corporation 300 --- 150,000 /(1)/ 300 --- 150,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Raymond Milton 100 --- 50,000 /(1)/ 100 --- 50,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Susan Milton 100 --- 50,000 /(1)/ 100 --- 50,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Murdoch & Co. 300 --- 150,000 /(1)/ 300 --- 150,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Mary Murphy 200 --- 100,000 /(1)/ 200 --- 100,000 /(1)/
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Clarion Capital Corporation /(2)/ 500 --- 250,000 /(1)/ 500 --- 250,000 /(1)/
115,000 115,000
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
-21-
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
COMMON COMMON
PREFERRED STOCK COMMON PREFERRED STOCK COMMON
NAME OF SELLING SECURITYHOLDER STOCK PURCHASE STOCK STOCK PURCHASE STOCK
WARRANTS WARRANTS
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Quest Oil & Gas, Inc. /(3)/ 1,290 --- 645,000 /(1)/ 1,290 --- 645,000 /(1)/
466,666 466,666 /(4)/ --- 466,666 /(4)/
386,667 --- 386,667
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Thesis Group, Inc. 150 --- 75,000 /(1)/ 150 --- 75,000 /(1)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Trans Euro Investments Limited 200 --- 100,000 /(1)/ 200 --- 100,000 /(1)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Welcome Opportunities Fund, Ltd. 125 --- 62,500 /(1)/ 125 --- 62,500 /(1)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Gaines, Berland Inc. /(5)/ --- 200,000 200,000 /(4)/ --- 200,000 200,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Kulen Capital, L.P. --- --- 1,000,000 --- --- 1,000,000
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Loire Sextant, S.A. --- --- 235,000 --- --- 235,000
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Stratum Group, L.P. --- 1,000,000 1,000,000/(4)/ --- 1,000,000 1,000,000/(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Wall Street Group --- 29,531 29,531/(4)/ --- --- 29,531 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Robert Badding --- 2,500 2,500 /(4)/ --- --- 2,500 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Bill Burke --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Terry Fields --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
James LaMunyon --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Daniel Manucci --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
David Moore --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Sven Nilsson --- 2,500 2,500 /(4)/ --- --- 2,500 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Carl Smith --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
John Smith --- 2,500 2,500 /(4)/ --- --- 2,500 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Dr. Joseph Smith --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Greg Weeks --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Charles Wendland --- 5,000 5,000 /(4)/ --- --- 5,000 /(4)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Glen Cushman /(8)/ --- /(6)/ 10,000 /(7)/ --- --- 10,000 /(7)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Sue Doty-Lloyd /(8)/ --- /(6)/ 30,000 /(7)/ --- --- 30,000 /(7)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
James Mulvihill /(9)/ --- /(6)/ 10,000 /(7)/ --- --- 10,000 /(7)/
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
TOTALS 5,540 1,748,697 6,305,364 5,540 1,200,000 6,305,364
- --------------------------------------------------------------------------------------------------------------
</TABLE>
-22-
<PAGE>
__________________________
(1) Shares of Common Stock issuable on conversion of the Preferred Stock.
(2) Mr. Morton A. Cohen, a Director of the Company, is President and Chairman
of Clarion Capital Corporation, a small business investment company.
(3) Mr. Brian Bayley, a Director of the Company, is Secretary of Quest Oil &
Gas, Inc.
(4) Shares of Common Stock issuable on exercise of Common Stock Purchase
Warrants.
(5) The warrant to purchase 200,000 shares was issued to Gaines, Berland Inc.
("GBI") for services rendered in connection with the Comstock Acquisition. In
addition, principals of GBI hold options exercisable at $9.90 per Unit to
purchase an aggregate of 230,000 Units, which on exercise include 690,000 shares
of the Company's Common Stock and 690,000 Common Stock Purchase Warrants
exercisable at $2.40 per share, all of which securities have been registered
under the Securities Act (Registration Number 33-99190) and may be sold by the
holders. GBI disclaims beneficial ownership of such Units, shares and warrants.
GBI served as underwriter of a public offering of the Company's securities which
was consummated on January 30, 1996 with an over-allotment option closing in
March 1996. As compensation for serving in such capacity, GBI received an
aggregate of approximately $1,297,950 in commissions, $458,100 pursuant to a
non-accountable expense allowance and the option to purchase the 230,000 Units,
in accordance with an underwriting agreement between the Company and GBI, dated
January 24, 1996.
(6) Option to purchase shares of Common Stock.
(7) Shares issuable on exercise of option.
(8) Such persons were Directors of the Company prior to April 17, 1995.
(9) Mr. Mulvihill was a Director of the Company prior to October 28, 1994.
-23-
<PAGE>
PLAN OF DISTRIBUTION
The Selling Securityholders may sell or distribute some or all of the
Preferred Stock, Common Stock and Common Stock Purchase Warrants from time to
time through underwriters or dealers or brokers or other agents or directly to
one or more purchasers, including pledgees, in transactions (which may involve
block transactions) on the Nasdaq SmallCap Market or in privately negotiated
transactions (including sales pursuant to pledges), or in a combination of such
transactions. Such transactions may be effected by the Selling Securityholders
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices, or at fixed prices, which may be
changed. Brokers, dealers, agents or underwriters participating in such
transactions as agent may receive compensation in the form of discounts,
concessions or commissions from the Selling Securityholder (and, if they act as
agent for the purchaser of such shares, from such purchaser). Such discounts,
concessions or commissions as to a particular broker, dealer, agent or
underwriter might be in excess of those customary in the type of transaction
involved.
The Selling Securityholders and any such underwriters, brokers,
dealers or agents that participate in such distribution may be deemed to be
"underwriters" within the meaning of the Securities Act, and any discounts,
commissions or concessions received by any such underwriters, brokers, dealers
or agents might be deemed to be underwriting discounts and commissions under the
Securities Act. Neither the Company nor the Selling Securityholders can
presently estimate the amount of such compensation. The Company knows of no
existing arrangements between any Selling Securityholder and any other Selling
Securityholder, underwriter, broker, dealer or other agent relating to the sale
or distribution of the Securities.
Under applicable rules and regulations currently in effect under the
Exchange Act, any person engaged in a distribution of any of the shares of
Preferred Stock, Common Stock or Common Stock Purchase Warrants may not
simultaneously engage in market activities with respect to the Preferred Stock,
Common Stock or Common Stock Purchase Warrants for a period of nine business
days prior to the commencement of such distribution. In addition, and without
limiting the foregoing, the Selling Securtityholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation Rules 10b-5, 10b-6 and 10b-7, which
provisions may limit the timing of purchases and sales of any of the shares of
Preferred Stock, Common Stock or Common Stock Purchase Warrants by the Selling
Securityholders. All of the foregoing may affect the marketability of the
Preferred Stock, Common Stock or Common Stock Purchase Warrants.
-24-
<PAGE>
The Company will pay substantially all of the expenses incident to this
offering of the Securities by the Selling Securityholders to the public other
than commissions and discounts of underwriters, brokers, dealers or agents. Each
Selling Securityholder may indemnify any broker, dealer, agent or underwriter
that participates in transactions involving sales of the Securities against
certain liabilities, including liabilities arising under the Securities Act.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Under its Certificate of Incorporation, the total number of shares of all
classes of stock that the Company has authority to issue is 100,500,000
consisting of 500,000 shares of preferred stock, par value $.05 per share, and
100,000,000 shares of common stock, $.01 par value.
PREFERRED STOCK
Up to 500,000 shares of preferred stock, par value $.05 per share, may be
issued from time to time in one or more series. The Board of Directors, without
further approval of the stockholders, is authorized to fix the rights and terms
relating to dividends, conversion, voting, redemption, liquidation preferences,
sinking funds and any other rights, preferences, privileges and restrictions
applicable to each such series of preferred stock. The issuance of preferred
stock, while providing flexibility in connection with possible financings,
acquisitions and other corporate purposes, could, among other things, adversely
affect the voting power of the holders of Common Stock and, under certain
circumstances, be used as a means of discouraging, delaying or preventing a
change in control of the Company. Other than the shares of 7 1/2% Cumulative
Convertible Preferred Stock, the Company has no shares of preferred stock
outstanding.
7 1/2% Cumulative Convertible Preferred Stock. The Company has outstanding
5,540 shares of 7 1/2% Cumulative Convertible Preferred Stock. The shares of 7
1/2% Cumulative Convertible Preferred Stock are convertible, commencing December
31, 1996, into shares of the Company's common stock at a conversion price per
share of common stock equal to the lesser of (i) $2.00 or (ii) a price equal to
the average of the
-25-
<PAGE>
closing prices of the Company's common stock during the 30 business days prior
to the day the shares are converted less a discount of 12 1/2%. The number of
shares of common stock to be issued on conversion is determined by multiplying
the number of shares of 7 1/2% Cumulative Convertible Preferred Stock to be
converted by $1,000 and dividing the result by the conversion price in effect.
In the event that at any time after January 24, 1998 the market price for the
shares of the Company's common stock exceeds $4 per share, provided the shares
to be issued on conversion have been registered under the Securities Act, the
Company has the right to automatically convert the shares of 7 1/2% Cumulative
Convertible Preferred Stock into shares of common stock at the same conversion
price as described above. The shares of 7 1/2% Cumulative Convertible Preferred
Stock pay a cumulative dividend, payable semi-annually on June 30 and December
31, commencing June 30, 1996, of 7 1/2% based on the liquidation value (the
"Liquidation Value") of $1,000 per share. The Company has the right to redeem
the shares of 7 1/2% Cumulative Convertible Preferred Stock at their Liquidation
Value plus accrued and unpaid dividends at any time commencing January 24, 1998
upon giving 30 days prior written notice and, in the event of the sale of all or
substantially all the assets of the Company or a merger or consolidation of the
Company, other than with a subsidiary, the shares of 7 1/2% Cumulative
Convertible Preferred Stock must be redeemed. The shares of 7 1/2% Cumulative
Convertible Preferred Stock do not have any voting rights except as required by
law. The shares of 7 1/2% Cumulative Convertible Preferred Stock have a
preferential right in the event of the liquidation or dissolution of the Company
to receive their Liquidation Value and after payment of such sum are not
entitled to receive any other sums.
COMMON STOCK
The holders of common stock are entitled to one vote per share on all
matters voted on by stockholders, including elections of Directors, and, except
as otherwise required by law or provided in any resolution adopted by the Board
of Directors with respect to any series of preferred stock establishing the
powers, designations, preferences and relative, participating, option or other
special rights of such series ("Preferred Stock Designation"), the holders of
such shares exclusively possess all voting power. The Certificate of
Incorporation does not provide for cumulative voting in the election of
directors. Subject to any preferential rights of any outstanding series of
preferred stock, the holders of common stock are entitled to such distributions
as may be declared from time to time by the Board of Directors from funds
available therefor, and upon liquidation are entitled to receive pro rata all
assets of the Company available for distribution to such holders. All shares of
common stock outstanding are fully paid and non-assessable and the holders
thereof have no preemptive rights.
-26-
<PAGE>
COMMON STOCK PURCHASE WARRANTS
Stratum Warrants
Stratum Group, L.P. holds Warrants to purchase 1,000,000 shares of the
Company's Common Stock (herein referred to as the "Stratum Warrants"). Each
Stratum Warrant entitles the registered holder to purchase from time to time
until the expiration of such warrants one (1) share of Common Stock at a price,
as of February 28, 1997, of $3.19 per share. The Stratum Warrants expire at the
close of business on June 2, 2000. The exercise price of the Stratum Warrants
is subject to adjustment, under certain circumstances, including, among others,
payment of a dividend or other distribution on the Company's Common Stock in
shares of Common Stock, a subdivision or combination of outstanding shares of
Common Stock or a reclassification of the Company's Common Stock. In addition,
if the Company issues shares of Common Stock, or rights, options or warrants
entitling any person to subscribe for or purchase shares of Common Stock at a
price per share less than the current market price per share of Common Stock as
of the issue date of such shares or rights, options or warrants, the exercise
price in effect thereafter is adjusted to be an amount equal to the result
determined by multiplying the exercise price in effect prior to such date by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding on the date of issuance of such shares or rights, option or
warrants, plus the number of shares which the aggregate offering price of the
total number of shares of Common Stock so offered would purchase at such current
market price, and the denominator of which is the number of shares of Common
Stock outstanding on the date of issuance of such shares or rights, options or
warrants, plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustments are made, subject to certain
limitations, for each such issuance during the term of the Stratum Warrants.
Any consideration received for Common Stock, rights, options and warrants is
taken into effect in determining the price at which such shares are issuable or
the options, warrants and rights are exercisable. For the purposes of such
adjustment, the issuance of rights, options or warrants to subscribe for or
purchase securities convertible into Common Stock is deemed to be the issuance
of rights, options or warrants to purchase the shares of Common Stock into which
such securities are convertible at an aggregate offering price equal to the
aggregate offering price for such securities, plus the minimum aggregate amount
payable upon conversion of such securities into shares of Common Stock. For
purposes of computing the current market price, such price is deemed to be the
average of the daily closing prices for thirty (30) consecutive trading days
preceding the day in question. In the event such rights, options, warrants or
conversion or exchange privileges expire without having been exercised, the
exercise price and number of shares issuable is readjusted.
-27-
<PAGE>
In the event of a consolidation, or merger of the Company, subject to
certain exceptions, or sale or transfer of all or substantially all the assets
of the Company, the holder of a Stratum Warrant has the right to thereafter
exercise such warrants for the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock for which the Stratum Warrants
may have been exercised immediately prior thereto.
The Stratum Warrants have been included in the registration statement filed
under the Securities Act of which this Prospectus is a part.
Gaines Berland Warrants
Gaines, Berland Inc. holds a Warrant to purchase 200,000 shares of Common
Stock issued as a fee in connection with the Comstock Acquisition (herein
referred to as the "Gaines Berland Warrant"). The Gaines Berland Warrant
entitles the holder to purchase up to 200,000 shares of the Company's Common
Stock at an exercise price of $2.25 per share. Such Warrant expires on August
19, 2001. The exercise price and number of shares of Common Stock issuable on
exercise are subject to adjustment in certain circumstances, including in the
event of stock dividends, recapitalizations, reclassifications, split-ups,
combinations, mergers or consolidations of the Company. The exercise price of
the Gaines Berland Warrant is not subject to adjustment for issuances of Common
Stock at less than its exercise price or market price.
In lieu of payment of the exercise price in cash, the holder of a Gaines
Berland Warrant has the right to convert such Warrant, in whole or in part, into
shares of Common Stock. Upon exercise of such right, the Company will issue to
the holder a number of shares of Common Stock equal to the quotient obtained by
dividing the value (as defined) of the portion of the warrant being exchanged by
the exercise price. The value is determined by subtracting the exercise price
multiplied by the number of shares of Common Stock being converted from the
market price for the Company's Common Stock multiplied by the number of shares
being converted.
The Gaines Berland Warrants have been included in the registration
statement filed under the Securities Act of which this Prospectus is a part.
-28-
<PAGE>
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for the
Company by William S. Clarke, P.A., 457 North Harrison Street, Suite 103,
Princeton, New Jersey 08540.
EXPERTS
The consolidated balance sheet of the Company as of December 31, 1996, and
the related consolidated statements of operations, changes in stockholders'
equity and cash flows for each of the two years in the period ended December 31,
1996, incorporated by reference in this Prospectus and in the Registration
Statement of which this Prospectus forms a part, have been incorporated herein
in reliance on the report of Coopers & Lybrand L.L.P., independent accountants,
given on the authority of that firm as experts in accounting and auditing.
-29-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14: OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities to be registered are as follows:
<TABLE>
<S> <C>
Securities and Exchange $ 6,122.00
Commission Registration Fee
Blue Sky Fees and Expenses $ 1,500.00
Printing $ 2,500.00
Legal fees of Counsel
for the Registrant $ 7,500.00
Accounting Fees $ 5,500.00
Miscellaneous $ 1,878.00
----------
TOTAL $25,000.00
==========
</TABLE>
ITEM 15: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1031 of the Oklahoma General Corporation Act and Article VI of the
Registrant's By-Laws provide for indemnification of present and former officers,
directors, employees and agents.
-30-
<PAGE>
ITEM 16: EXHIBITS
(3) (a) Certificate of Incorporation of the Registrant/(1)/
(b) Certificate of Designation filed October 17, 1996/(2)/
(c) Certificate of Ownership and Merger filed October 22, 1996/(2)/
(d) By-Laws of the Registrant/(1)/
(5) Opinion of William S. Clarke, P.A./(2)/
(23) Consent of Coopers & Lybrand/(2)/
- -----------------------------------
(1) Incorporated by reference to the Registrant's Quarterly Report on Form 10-
QSB for the fiscal quarter ended September 30, 1996
(2) Filed herewith.
ITEM 17: UNDERTAKINGS
(a) The small business issuer will:
1. File, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the registration statement; and
(iii) Include any additional or changed material information on
the plan of distribution.
2. For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
-31-
<PAGE>
3. File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act) may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the provisions of
the Oklahoma General Corporation Act, the Registrant's Articles of
Incorporation, or otherwise, the small business issuer has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the small business issuer of expenses incurred or paid by a
director, officer or controlling person of the small business issuer in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the small business issuer will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
ITEM 18: FINANCIAL STATEMENTS AND SCHEDULES
Abbreviated financial statements are not required.
-32-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Tulsa, State of Oklahoma, on February 28/th/,
1997.
GOTHIC ENERGY CORPORATION
By: /s/ Michael K. Paulk
-------------------------------------------
Michael K. Paulk, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Michael K. Paulk President and Director February 28/th/, 1997
- --------------------------------
Michael K. Paulk (Principal Executive, Financial
and Accounting Officer)
/s/ John J. Fleming Director February 28/th/, 1997
- --------------------------------
John J. Fleming
/s/ John L. Rainwater Director February 28/th/, 1997
- --------------------------------
John L. Rainwater
/s/ Morton A. Cohen Director February 28/th/, 1997
- --------------------------------
Morton A. Cohen
/s/ Brian E. Bayley Director February 28/th/, 1997
- --------------------------------
Brian E. Bayley
</TABLE>
-33-
<PAGE>
EXHIBIT 3(B)
CERTIFICATE OF DESIGNATION, PREFERENCES, RIGHTS AND
LIMITATIONS OF PREFERRED STOCK OF
GOTHIC ENERGY NEWCO, INC.
(Pursuant to Section 1032G of the General Corporation Law of the State of
Oklahoma)
Michael Paulk and Linda Esley, being the President and Secretary,
respectively, of Gothic Energy Newco, Inc., a corporation duly organized and
existing under and by virtue of the General Corporation Law of the State of
Oklahoma (the "Corporation"), do hereby certify that:
Pursuant to the authority conferred upon the Board of Directors by Article
Fourth of the Certificate of Incorporation of the Corporation, and in accordance
with the provisions of Section 1032G of the General Corporation Law of the State
of Oklahoma, the Board of Directors adopted the following resolution at a
meeting duly convened and held on August 13, 1996, providing for the designation
of 5,540 shares of the Corporation's 7 1/2% Cumulative Convertible Preferred
Stock, par value $.05 per share:
RESOLVED, that pursuant to the authority granted to the of
Directors of the Corporation by Article Fourth of the
Corporation's Certificate of Incorporation, the Board of
Directors hereby creates a series of 7 1/2% Cumulative
Convertible Preferred Stock of the Corporation to consist
initially of 5,540 shares, and hereby fixes the designation and
amount thereof, the voting powers and preferences, the relative,
participating, optional and other special rights, and the
qualifications, limitation or restrictions thereof, of the shares
of such series as set forth on Exhibit "A" attached hereto and
made a part hereof.
IN WITNESS WHEREOF, the undersigned, being the above-named President and
Secretary, under penalty of perjury, do each hereby declare and certify that
this is the act and deed of the Corporation and the facts stated herein are true
and, accordingly, have hereunto signed this Certificate of Designation this
14th day of October, 1996.
Attest: GOTHIC ENERGY NEWCO, INC.
/s/ Linda Esley By: /s/ Michael Paulk
- -------------------------------- ---------------------------------
Linda Esley, Secretary Michael Paulk, President
Exhibit 3(b)-1
<PAGE>
EXHIBIT "A"
PREFERRED STOCK
Section 1. Dividends.
---------
1A. General Obligation. When and as declared by the
------------------
Corporation's board of directors and to the extent permitted under the General
Corporation Law of Oklahoma, the Corporation shall pay preferential dividends to
the holders of the 7 1/2% Convertible Preferred Stock, par value $.05 per share
(the "Convertible Preferred") as provided in this Section 1. Except as
otherwise provided herein, dividends on each share of the Convertible Preferred
(a "Share") shall accrue on a daily basis at the rate of 7 1/2% per annum of the
sum of the Liquidation Value thereof plus all accumulated and unpaid dividends
thereon, from and including the date of issuance of such Share to and including
the date on which the Liquidation Value of such Share (plus all accrued and
unpaid dividends thereon) is paid or the date on which such Share is converted
into shares of Conversion Stock hereunder. Such dividends shall accrue whether
or not they have been declared and whether or not there are profits, surplus or
other funds of the Corporation legally available for the payment of dividends.
The date on which the Corporation initially issues any Share shall be deemed to
be its "date of issuance" regardless of the number of times transfer of such
Share is made on the stock records maintained by or for the Corporation and
regardless of the number of certificates which may be issued to evidence such
Share.
1B. Dividend Reference Dates. To the extent not paid on each
------------------------
June 30 and December 31 of each year during which any Share remains outstanding,
beginning June 30, 1996 (the "Dividend Reference Dates"), all dividends which
have accrued on each Share outstanding during the six-month period (or other
period in the case of the initial Dividend Reference Date) ending upon each
Dividend Reference Date shall be accumulated and shall remain accumulated
dividends with respect to such Share until paid.
1C. Distribution of Partial Dividend Payments. Except as
-----------------------------------------
otherwise provided herein, if at any time the Corporation pays less than the
total amount of dividends then accrued with respect to the Convertible
Preferred, such partial payment shall be distributed ratably among the holders
thereof based upon the number of Shares held by each such holder.
Exhibit 3(b)-2
<PAGE>
Section 2. Liquidation. Upon any liquidation, dissolution or winding
-----------
up of the Corporation, each holder of Convertible Preferred shall be entitled to
be paid, before any distribution or payment is made upon any Junior Securities,
an amount in cash equal to the aggregate Liquidation Value (plus all accrued and
unpaid dividends) of all Shares held by such holder, and the holders of
Convertible Preferred shall not be entitled to any further payment. If upon any
such liquidation, dissolution or winding up of the Corporation, the
Corporation's assets to be distributed among the holders of the Convertible
Preferred are insufficient to permit payment to such holders of the aggregate
amount which they are entitled to be paid, then the entire assets to be
distributed shall be distributed ratably among such holders based upon the
aggregate Liquidation Value (plus all accrued and unpaid dividends) of the
Convertible Preferred held by each such holder. Prior to the liquidation,
dissolution or winding up of the Corporation, the board of directors, on behalf
of the Corporation, shall declare for payment all accrued and unpaid dividends
with respect to the Convertible Preferred. The Corporation shall mail written
notice of such liquidation, dissolution or winding up, not less than 60 days
prior to the payment date stated therein, to each record holder of Convertible
Preferred. Neither the consolidation or merger of the Corporation into or with
any other entity or entities, nor the sale or transfer by the Corporation of all
or any part of its assets, nor the reduction of the capital stock of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up of
the Corporation within the meaning of this Section 2.
Section 3. Priority of Convertible Preferred on Dividends. So long as
----------------------------------------------
any Convertible Preferred remains outstanding, neither the Corporation nor any
Subsidiary shall pay or declare any dividend or make any distribution upon any
Junior Securities.
Section 4. Redemptions.
-----------
4A. Optional Redemption. Subject to the restrictions contained
-------------------
herein, commencing at any time after January 24, 1998 (two years after the
effective date of the Public Offering), the Corporation may at any time redeem
all or any portion of the Convertible Preferred then outstanding. On any such
redemption, the Corporation shall pay a price per Share equal to the Liquidation
Value thereof plus all accrued and unpaid dividends thereon. Shares of
Convertible Preferred shall not be redeemed by the Corporation to the extent the
funds of the Corporation legally available for redemption of Shares on any
Redemption Date or any other redemption date specified in a notice of redemption
are insufficient, under the General Corporation Law of the State of Oklahoma or
otherwise, to redeem such Shares.
Exhibit 3(b)-3
<PAGE>
4B. Redemption Payment. For each Share which is to be redeemed,
------------------
the Corporation shall be obligated on the Redemption Date to pay to the holder
thereof (upon surrender by such holder at the Corporation's principal office of
the certificate representing such Share) an amount in immediately available
funds equal to the Liquidation Value of such Share (plus all accrued and unpaid
dividends thereon). Prior to any redemption of Convertible Preferred, the
Corporation shall declare for payment all accrued and unpaid dividends with
respect to the Shares which are to be redeemed.
4C. Notice of Redemption. The Corporation shall mail written
--------------------
notice of each redemption of any Convertible Preferred to each record holder
thereof not more than 60 nor less than 30 days prior to the date on which such
redemption is to be made. Upon mailing any notice of redemption, the
Corporation shall become obligated to redeem the total number of Shares
specified in such notice at the time of redemption specified therein. In case
fewer than the total number of Shares represented by any certificate are
redeemed, a new certificate representing the number of unredeemed Shares shall
be issued to the holder thereof without cost to such holder within ten business
days after surrender of the certificate representing the redeemed Shares.
4D. Determination of the Number of Each Holder's Shares to be
---------------------------------------------------------
Redeemed. The number of Shares of Convertible Preferred to be redeemed from
- --------
each holder thereof in redemptions by the Corporation under this Section 4 shall
be the number of Shares determined by multiplying the total number of Shares of
Convertible Preferred to be redeemed times a fraction, the numerator of which
shall be the total number of Shares then held by such holder and the denominator
of which shall be the total number of Shares then outstanding.
4E. Dividends After Redemption Date. No Share is entitled to
-------------------------------
any dividends accruing after the date on which the Liquidation Value of such
Share (plus all accrued and unpaid dividends thereon) is paid to the holder
thereof. On such date all rights of the holder of such Share shall cease, and
such Share shall not be deemed to be outstanding.
4F. Redeemed or Otherwise Acquired Shares. Any Shares which are
-------------------------------------
redeemed or otherwise acquired by the Corporation shall be cancelled and shall
not be reissued, sold or transferred.
4G. Accrued Dividends Must be Paid Prior to Any Redemption. The
------------------------------------------------------
Corporation may not redeem any Convertible Preferred, unless all dividends
accrued on the outstanding Convertible Preferred through the immediately
preceding Dividend Reference Date have been paid in full.
Exhibit 3(b)-4
<PAGE>
4H. Special Redemption.
------------------
(i) If a "Fundamental Change" (as defined below) is to occur,
the Corporation shall give written notice of such Fundamental Change describing
in reasonable detail the terms thereof to each holder of Convertible Preferred
not more than 30 days nor less than 20 days prior to the consummation thereof.
The holder or holders of the Convertible Preferred then outstanding may require
the Corporation to redeem all or any portion of the Convertible Preferred owned
by such holder or holders at a price per Share equal to the Liquidation Value
thereof (plus all accrued and unpaid dividends thereon) by giving written notice
to the Corporation of such election within ten days after receipt of notice from
the Corporation. The Corporation shall give prompt written notice of such
election to all other holders of Convertible Preferred (but in any event within
five days prior to the consummation of the Fundamental Change), and each such
holder shall have until two days after the receipt of such notice to request
redemption (by written notice given to the Corporation) of all or any portion of
the Convertible Preferred owned by such holder. Upon receipt of such
election(s), the Corporation shall be obligated to redeem the aggregate number
of Shares specified therein upon the consummation of such Fundamental Change. If
any proposed Fundamental Change does not occur, all requests for redemption in
connection therewith shall be automatically rescinded. The term "Fundamental
Change" means (a) a sale or transfer of all or substantially all of the assets
of the Corporation and its Subsidiaries on a consolidated basis in any
transaction or series of transactions and (b) any merger, reorganization,
restructuring or consolidation to which the Corporation is a party, except any
such transaction between the Corporation and a wholly owned subsidiary.
Section 5. Voting Rights. The holders of the Convertible Preferred
-------------
shall not have any voting rights except as required by the General Corporation
Law of Oklahoma.
Section 6. Conversion.
----------
6A. Conversion Procedure.
--------------------
(i) At any time on and after December 31, 1996, and from time
to time thereafter, any holder of Convertible Preferred may convert all or any
portion of the Convertible Preferred (including any fraction of a Share) held by
such holder into a number of shares of Conversion Stock computed by multiplying
the number of Shares to be converted by the Liquidation Value and dividing the
result by the Conversion Price
Exhibit 3(b)-5
<PAGE>
then in effect. In no event shall the converting holder be required to make any
payment to the Company upon conversion.
(ii) Each conversion of Convertible Preferred shall be deemed
to have been effected as of the close of business on the date on which the
certificate or certificates representing the Convertible Preferred to be
converted have been surrendered at the principal office of the Corporation. At
such time as such conversion has been effected, the rights of the holder of such
Convertible Preferred as such holder shall cease and the Person or Persons in
whose name or names any certificate or certificates for shares of Conversion
Stock are to be issued upon such conversion shall be deemed to have become the
holder or holders of record of the shares of Conversion Stock represented
thereby.
(iii) The conversion rights of any Share subject to redemption
hereunder shall terminate on the Redemption Date for such Share unless the
Corporation has failed to pay to the holder thereof the Liquidation Value
thereof (plus all accrued and unpaid dividends thereon).
(iv) Notwithstanding any other provision hereof, if a
conversion of Convertible Preferred is to be made in connection with a Public
Offering, the conversion of any Shares of Convertible Preferred may, at the
election of the holder of such Shares, be conditioned upon the consummation of
the Public Offering in which case such conversion shall not be deemed to be
effective until the consummation of the Public Offering.
(v) As soon as possible after a conversion has been effected,
the Corporation shall deliver to the converting holder:
(a) a certificate or certificates representing the
number of shares of Conversion Stock issuable by reason of such conversion in
such name or names and such denomination or denominations as the converting
holder has specified and each such certificate shall bear a legend substantially
similar to the legend set forth in paragraph 7B of the Purchase Agreement;
(b) payment in cash in an amount equal to all accrued
dividends with respect to each Share converted, which have not been paid prior
thereto, plus the amount payable under subparagraph (ix) below with respect to
such conversion; and
Exhibit 3(b)-6
<PAGE>
(c) a certificate representing any Shares of
Convertible Preferred which were represented by the certificate or certificates
delivered to the Corporation in connection with such conversion but which were
not converted.
(vi) If for any reason the Corporation is unable to pay any
portion of the accrued dividends on Convertible Preferred being converted, such
portion of the unpaid dividends may, at the converting holder's option, be
converted into an additional number of shares of Conversion Stock determined by
dividing the amount of the unpaid dividends to be applied for such purpose, by
the Conversion Price then in effect. If the converting holder elects not to
choose such option, the Corporation shall pay such dividends to the converting
holder as soon thereafter as funds of the Corporation are legally available for
such payment. At the request of any such converting holder, the Corporation
shall provide such holder with written evidence of its obligation to such
holder.
(vii) The issuance of certificates for shares of Conversion
Stock upon conversion of Convertible Preferred shall be made without charge to
the holder of such Convertible Preferred for any issuance tax in respect thereof
or other cost incurred by the Corporation in connection with such conversion and
the related issuance of shares of Conversion Stock. Upon conversion of each
Share of Convertible Preferred, the Corporation shall take all such actions as
are necessary in order to insure that the Conversion Stock issuable with respect
to such conversion shall be validly issued, fully paid and non-assessable.
(viii) The Corporation shall not close its books against the
transfer of Convertible Preferred or of Conversion Stock issued or issuable upon
conversion of Convertible Preferred in any manner which interferes with the
timely conversion of the Convertible Preferred. The Corporation shall assist and
cooperate with any holder of Shares required to make any governmental filings or
obtain any governmental approval prior to or in connection with any conversion
of Shares hereunder (including, without limitation, making any filings required
to be made by the Corporation).
(vix) If any fractional interest in a share of Conversion Stock
would, except for the provisions of this subparagraph, be deliverable upon any
conversion of the Convertible Preferred, the Corporation, in lieu of delivering
the fractional share therefor, shall pay an amount to the holder thereof equal
to the Market Price of such fractional interest as of the date of conversion.
Exhibit 3(b)-7
<PAGE>
(x) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Conversion Stock, solely
for the purpose of issuance upon the conversion of the Convertible Preferred,
such number of shares of Conversion Stock issuable upon the conversion of all
outstanding Convertible Preferred. All shares of Conversion Stock which are so
issuable shall, when issued, be duly and validly issued, fully paid and non-
assessable and free from all liens and charges. The Corporation shall take all
such actions as may be necessary to assure that all such shares of Conversion
Stock may be so issued without violation of any applicable law or governmental
regulation or any requirements of any domestic securities exchange upon which
shares of Conversion Stock may be listed (except for official notice of issuance
which shall be immediately delivered by the Corporation upon each such
issuance).
6B. Mandatory Conversion. In the event that at any time after a
--------------------
date two years after the effective date of the Public Offering, the Market
Price, as defined in Section 10 and modified by Section 6H hereof, for the
Corporation's Common Stock exceeds $4 per share, then the Corporation may, by
giving written notice in accordance with Section 12 hereof to each holder of
Convertible Preferred, given within 30 days of the date such Market Price, as
defined in Section 10 and modified by Section 6H hereof exceeds $4 per share,
automatically convert the Convertible Preferred into shares of Common Stock,
provided, however, the Corporation shall not have the right to give any such
notice of automatic conversion unless at the time of giving such notice the
Corporation has at its expense filed and caused to become effective a
registration statement under the Securities Act of 1933, as amended, relating to
the resale of the shares of Common Stock issuable upon the automatic conversion
of the Convertible Preferred. The holders of the Convertible Preferred agree to
cooperate with the Corporation and provide such information and documents as
reasonably may be requested in assisting the Corporation in causing such
registration statement to be filed and become effective. Such conversion shall
be effective as such time as the notice thereof is deemed effective under
Section 12. Such conversion shall be effected in accordance with Subsections
6A(v) through 6A(x) hereof.
6C. Conversion Price. The "Conversion Price" shall be the
----------------
lesser of (i) $2.00 (the "Fixed Conversion Price") or (ii) a price equal to the
Market Price of the Company's Common Stock, determined as of the last business
day before the date on which the certificate representing the Convertible
Preferred to be converted has been surrendered to the Company for conversion,
less a discount of 12-1/2% (the "Fluctuating Conversion Price"). In order to
prevent dilution of the conversion rights granted under this subdivision, the
Fixed Conversion Price shall be subject to adjustment from time to time pursuant
to this Section 6.
Exhibit 3(b)-8
<PAGE>
6D. Subdivision or Combination of Common Stock. If the
------------------------------------------
Corporation at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Fixed Conversion Price in
effect immediately prior to such subdivision shall be proportionately reduced,
and if the Corporation at any time combines (by reverse stock split or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Fixed Conversion Price in effect immediately prior
to such combination shall be proportionately increased.
6E. Reorganization, Reclassification, Consolidation, Merger or
----------------------------------------------------------
Sale. Any recapitalization, reorganization, reclassification, consolidation,
- ----
merger, sale of all or substantially all of the Corporation's assets to another
Person or other transaction which is effected in such a manner that holders of
Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Common Stock is referred to herein as an "Organic Change." Prior to the
consummation of any Organic Change, the Corporation shall make appropriate
provisions (in form and substance satisfactory to the holders of a majority of
the Convertible Preferred then outstanding) to insure that each of the holders
of Convertible Preferred shall thereafter have the right to acquire and receive,
in lieu of or in addition to (as the case may be) the shares of Conversion Stock
immediately theretofore acquirable and receivable upon the conversion of such
holder's Convertible Preferred, such shares of stock, securities or assets as
such holder would have received in connection with such Organic Change if such
holder had converted its Convertible Preferred immediately prior to such Organic
Change. In each such case, the Corporation shall also make appropriate
provisions (in form and substance satisfactory to the holders of a majority of
the Convertible Preferred then outstanding) to insure that the provisions hereof
shall thereafter be applicable to the Convertible Preferred. The Corporation
shall not effect any such consolidation, merger or sale unless, prior to the
consummation thereof, the successor corporation (if other than the Corporation)
resulting from consolidation or merger or the corporation purchasing such assets
assumes by written instrument (in form reasonably satisfactory to the holders of
a majority of the Convertible Preferred then outstanding), the obligation to
deliver to each such holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
acquire.
6F. Certain Events. If any event occurs of the type
--------------
contemplated by the provisions of this Section 6 but not expressly provided for
by such provisions, then the Corporation's board of directors shall make an
appropriate adjustment in the Fixed Conversion Price so as to protect the rights
of the holders of Convertible Preferred; provided that no such adjustment shall
increase the Fixed Conversion Price as
Exhibit 3(b)-9
<PAGE>
otherwise determined pursuant to this Section 6 or decrease the number of shares
of Conversion Stock issuable upon conversion of each Share of Convertible
Preferred.
6G. Notices.
-------
(i) Immediately upon any adjustment of the Fixed Conversion
Price, the Corporation shall give written notice thereof to all holders of
Convertible Preferred, setting forth in reasonable detail and certifying the
calculation of such adjustment.
(ii) The Corporation shall give written notice to all
holders of Convertible Preferred at least 20 days prior to the date on which the
Corporation closes its books or takes a record (a) with respect to any dividend
or distribution upon Common Stock or (b) for determining rights to vote with
respect to any Organic Change, dissolution or liquidation.
(iii) The Corporation shall also give written notice to the
holders of Convertible Preferred at least 20 days prior to the date on which any
Organic Change shall take place.
6H. Market Price for Purposes of Section 6B. For purposes of
---------------------------------------
Section 6B hereof, the term Market Price shall be the result of averaging the
Market Price, as defined in Section 10, for the Corporation's shares of Common
Stock in each such case averaged over a period of 30 days consisting of the day
as of which "Market Price" is being determined and the 29 consecutive business
days prior to such day.
Section 7. Liquidating Dividends. If the Corporation declares or pays
---------------------
a dividend upon the Common Stock payable otherwise than in cash out of earnings
or earned surplus (determined in accordance with generally accepted accounting
principles, consistently applied) except for a stock dividend payable in shares
of Common Stock (a "Liquidating Dividend"), then the Corporation shall pay to
the holders of Convertible Preferred at the time of payment thereof the
Liquidating Dividends which would have been paid on the shares of Conversion
Stock had such Convertible Preferred been converted immediately prior to the
date on which a record is taken for such Liquidating Dividend, or, if no record
is taken, the date as of which the record holders of Common Stock entitled to
such dividends are to be determined.
Exhibit 3(b)-10
<PAGE>
Section 8. Registration of Transfer. The Corporation shall keep at its
------------------------
principal office a register for the registration of Convertible Preferred. Upon
the surrender of any certificate representing Convertible Preferred at such
place, the Corporation shall, at the request of the record holder of such
certificate, execute and deliver (at the Corporation's expense) a new
certificate or certificates in exchange therefor representing in the aggregate
the number of Shares represented by the surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such number of
Shares as is requested by the holder of the surrendered certificate and shall be
substantially identical in form to the surrendered certificate, and dividends
shall accrue on the Convertible Preferred represented by such new certificate
from the date to which dividends have been fully paid on such Convertible
Preferred represented by the surrendered certificate.
Section 9. Replacement. Upon receipt of evidence reasonably
-----------
satisfactory to the Corporation (an affidavit of the registered holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing Shares of Convertible Preferred, and in the case of
any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the holder is a financial
institution or other institutional investor having assets of at least $10
million, its own agreement shall be satisfactory), or, in the case of any such
mutilation upon surrender of such certificate, the Corporation shall (at its
expense) execute and deliver in lieu of such certificate a new certificate of
like kind representing the number of Shares of such class represented by such
lost, stolen, destroyed or mutilated certificate and dated the date of such
lost, stolen, destroyed or mutilated certificate, and dividends shall accrue on
the Convertible Preferred represented by such new certificate from the date to
which dividends have been fully paid on such lost, stolen, destroyed or
mutilated certificate.
Section 10. Definitions.
-----------
"Common Stock" means, collectively, the Corporation's Common Stock,
par value $.01 per share, and any capital stock of any class of the Corporation
hereafter authorized which is not limited to a fix sum or percentage of par or
stated value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation.
"Conversion Stock" means shares of the Corporation's Common Stock;
provided that if there is a change such that the securities issuable upon
conversion of the Convertible Preferred are issued by an entity other than the
Corporation or there is a change in the class of securities so issuable, then
the term "Conversion Stock" shall
Exhibit 3(b)-11
<PAGE>
mean one share of the security issuable upon conversion of the Convertible
Preferred if such security is issuable in shares, or shall mean the smallest
unit in which such security is issuable if such security is not issuable in
shares.
"Corporation" means Gothic Energy Newco, Inc. and its predecessors,
successors and assigns.
"Junior Securities" means any of the Corporation's equity securities
other than the Convertible Preferred.
"Liquidation Value" of any Share as of any particular date shall be
equal to $1,000, provided, however, if the Corporation at any time subdivides
(by any stock split, stock dividend, recapitalization or otherwise) the
Convertible Preferred into a greater number of shares, the Liquidation Value in
effect immediately prior to such subdivision shall be proportionately reduced,
and if the Corporation at any time combines (by reverse stock split or
otherwise) the Convertible Preferred into a smaller number of shares, the
Liquidation Value in effective immediately prior to such combination shall be
proportionately increased.
"Market Price" of any security means the average of the closing prices
as of any date of determination of such security's sales on all securities
exchanges on which such security may at the time be listed, or, if there has
been no sales on any such exchange on any day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of such day, or, if on
any day such security is not so listed, the average of the representative bid
and asked prices quoted in the NASDAQ System as of 4:00PM, New York time, or, if
on any day such security is not quoted in the NASDAQ System, the average of the
highest bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or any
similar successor organization. If at any time such security is not listed on
any securities exchange or quoted in the NASDAQ System or the over-the-counter
market, the "Market Price" shall be the fair value thereof determined jointly by
the Corporation and the holders of a majority of the Convertible Preferred. If
such parties are unable to reach agreement within a reasonable period of time,
such fair value shall be determined by an independent appraiser experienced in
valuing securities jointly selected by the Corporation and the holders of a
majority of the Convertible Preferred. The determination of such appraiser shall
be final and binding upon the parties, and the Corporation shall pay the fees
and expenses of such appraiser.
Exhibit 3(b)-12
<PAGE>
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Public Offering" means an offering of securities pursuant to a
registration statement declared effective under the Securities Act of 1933, as
amended, which are sold to an underwriter on a firm commitment basis for public
distribution.
"Purchase Agreement" means the Purchase Agreement, dated as of
December 18, 1995, by and among the Corporation and certain investors, as such
agreement may from time to time be amended in accordance with its terms.
"Redemption Date" as to any Share means any date specified in any
notice of redemption at the Corporation's option; provided that no such date
shall be a Redemption Date unless the Liquidation Value of such Share (plus all
accrued and unpaid dividends thereon) is actually paid in full on such date, and
if not so paid in full, the Redemption Date shall be the date on which the
holder of such Share has received payment in full of such amount.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, association
or other business entity gains or losses or shall be or control the managing
general partner of such partnership, association or other business entity.
Section 11. Amendment and Waiver. No amendment, modification or waiver
--------------------
shall be binding or effective with respect to any provision of Sections 1 to 11
hereof without the prior written consent of the holders of a majority of the
Convertible Preferred outstanding at the time such action is taken; and provided
that no change in the terms hereof may be accomplished by merger or
consolidation of the Corporation with another
Exhibit 3(b)-13
<PAGE>
Corporation or entity unless the Corporation has obtained the prior written
consent of the holders of the applicable percentage of the Convertible Preferred
then outstanding.
Section 12. Notices. Except as otherwise expressly provided hereunder,
-------
all notices referred to herein shall be in writing and shall be delivered by
registered or certified mail, return receipt requested and postage prepaid, or
by reputable overnight courier service, charges prepaid, and shall be deemed to
have been given when so mailed or sent (i) to the Corporation, at its principal
executive offices and (ii) to any stockholder, at such holder's address as it
appears in the stock records of the Corporation (unless otherwise indicated by
any such holder).
Exhibit 3(b)-14
<PAGE>
EXHIBIT 3(C)
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
GOTHIC ENERGY CORPORATION
(A DELAWARE CORPORATION)
INTO
GOTHIC ENERGY NEWCO, INC.
(AN OKLAHOMA CORPORATION)
(Under Section 1083 of the General Corporation Law of the State of Oklahoma)
Gothic Energy Corporation, a corporation organized and existing under the
laws of the State of Delaware (the "Company"), does hereby certify:
FIRST: That it was organized pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "DGCL") under the name TNC
Subsidiary Corp., on June 15, 1994 and on April 18, 1995 filed a Certificate of
Amendment changing its name to Gothic Energy Corporation.
SECOND: That it owns all of the outstanding shares of stock of Gothic
Energy Newco, Inc., a corporation organized pursuant to the provisions of the
Oklahoma General Corporation Law on October 11, 1996 ("Newco").
THIRD: That the Board of Directors of the Company, by unanimous written
consent dated October 10, 1996, determined to merge the Company into Newco (the
"Merger"), and did adopt the following resolutions:
RESOLVED, that the Board of Directors deems it advisable and in
the best interests of the Company that the Company and its wholly
owned subsidiary, Gothic Energy Newco, Inc., an Oklahoma
corporation ("Newco"), be merged upon the terms and conditions
set forth in (a) the Agreement and Plan of Merger between the
Company and Newco (the "Merger Agreement"), (b) the Certificate
of Ownership and Merger
Exhibit 3(c)-1
<PAGE>
under Section 1083 of the General Corporation Law of the State of
Oklahoma merging the Company into Newco (the "Oklahoma
Certificate of Merger") and (c) the Certificate of Ownership and
Merger under Section 253 of the General Corporation Law of the
State of Delaware merging the Company into Newco (the "Delaware
Certificate of Merger"), each of which is filed with and made a
part of these resolutions (the "Merger Documents"), pursuant to
which Newco shall survive the merger (the "Merger"); and be it
further
RESOLVED: That the terms and conditions of the Merger are as
follows:
(a) At the effective time of the merger (the
"Effective Time"), the Company shall be merged into Newco and,
thereupon, Newco shall possess any and all purposes and powers of
the Company; and all leases, licenses, property, rights,
privileges and powers of whatever nature and description of the
Company shall be transferred to, vested in and devolved upon
Newco, without further act or deed, subject to all of the debts
and obligations of the Company;
(b) At the Effective Time, the corporate name of Newco
shall be changed to Gothic Energy Corporation;
(c) At the Effective Time, by virtue of the Merger and
without any action on the part of the Company, Newco or any
holder of any stock of either of them:
(i) Each share of Common Stock, $0.01 par value
per share, of the Company ("Company Common Shares") issued and
outstanding immediately prior to the Effective Time shall be
converted into the right to receive one (1) validly issued, fully
paid and non-assessable share of Common Stock, $0.001 par value
per share, of Newco ("Newco Common Shares"). Each certificate
representing Company Common Shares shall thereafter represent the
right to receive Newco Common Shares. All Company Common Shares
shall cease to be outstanding, shall be canceled and retired and
shall cease to exist;
(ii) Each Company Common Share issued and held
in the Company's treasury shall cease to be outstanding, shall be
canceled and retired without payment of any consideration
therefor and shall cease to exist;
Exhibit 3(c)-2
<PAGE>
(iii) Each share of 7 1/2% Cumulative Convertible
Preferred Stock, $0.05 par value per share, of the Company
("Company Preferred Shares") issued and outstanding immediately
prior to the Effective Time shall be converted into the right to
receive one (1) validly issued, fully paid and non-assessable
share of 7 1/2% Cumulative Convertible Preferred Stock, $0.05 par
value per share, of Newco ("Newco Preferred Shares'). Each
certificate representing Company Preferred Shares shall
thereafter represent the right to receive Newco Preferred Shares.
All Company Preferred Shares shall cease to be outstanding, shall
be cancelled and retired and shall cease to exist;
(iv) Each Newco Common Share issued and
outstanding immediately prior to the Effective Time shall cease
to be outstanding, shall be canceled and retired without payment
of any consideration therefor and shall cease to exist;
(v) Each option, warrant, conversion right, or
other right to purchase or otherwise acquire Company Common
Shares pursuant to stock option, warrant or other stock-based
plans or conversion right of the Company granted, issued or
outstanding immediately prior to the Effective Time (A) shall be
converted into and become a right to purchase or otherwise
acquire the same number of Newco Common Shares at the same price
per share and upon the same terms and subject to the same
conditions as applicable to such options, warrants, conversion
rights, or other rights immediately prior to the Effective Time
and (B) shall be assumed and governed under all option plans or
agreements binding upon or in force against the Company
immediately prior to the Effective Time;
(d) On or after the Effective Time, all of the
outstanding certificates which prior to that time represented
Company Common Shares or Company Preferred Shares shall be deemed
for all purposes to evidence ownership of and to represent Newco
Common Shares or Newco Preferred Shares into which such shares
have been converted as hereinabove provided and shall be so
registered on the books and records of Newco or its transfer
agents. Until any such certificate shall have been surrendered
for transfer or otherwise accounted for to Newco or its transfer
agent, the registered owner of any such outstanding certificate
shall have and be entitled to exercise any voting and other
rights with respect to, and to receive any dividend or other
distribution on,
Exhibit 3(c)-3
<PAGE>
the Newco Common Shares or Newco Preferred Shares into which the
Company Common Shares or Company Preferred Shares represented by
such certificate have been converted. After the Effective Time,
whenever certificates which formerly represented Company Common
Shares or Company Preferred Shares are presented for exchange or
registration of transfer, Newco will cause to be issued in
respect thereof certificates representing an equal number of
Newco Common Shares or Newco Preferred Shares; and be it further
RESOLVED: That, in the event the Merger Agreement is not
terminated by the Board of Directors, the proper officers of the
Company are hereby authorized and directed to execute the Merger
Documents, to take all action necessary for the proper filing of
the Certificate of Ownership and Merger with the Secretary of
State of the State of Oklahoma and the Certificate of Ownership
and Merger with the Secretary of State of the State of Delaware,
and to take such other action and execute such other documents as
may be necessary or appropriate to the implementation and
consummation of the Merger.
FOURTH: That the Merger has been adopted, approved, certified, executed
and acknowledged by the Company in accordance with the laws of the State of
Delaware.
FIFTH: This Certificate of Ownership and Merger shall become effective
upon acceptance for filing by the Secretary of State.
SIXTH: The undersigned President of the Company acknowledges this
Certificate of Ownership and Merger to be the corporate act of the Company, and
further, as to all matters or facts required to be verified under oath, the
President of the Company acknowledges that, to the best of his knowledge,
information and belief, these matters and facts relating to the Company are true
in all material respects and that this statement is made under the penalties for
perjury.
Exhibit 3(c)-4
<PAGE>
IN WITNESS WHEREOF, this Certificate of Ownership and Merger has been duly
executed by the President of the Company and attested to by its Secretary this
14th day of October 1996.
Attest: GOTHIC ENERGY CORPORATION
/s/ Linda Esley By: /s/ Michael Paulk
- ---------------------------------- ----------------------------------
Linda Esley, Secretary Michael Paulk, President
(corporate seal)
Exhibit 3(c)-5
<PAGE>
EXHIBIT 5
William S. Clarke, P.A.
ATTORNEY-AT-LAW
457 North Harrison Street - Suite 103
Princeton, New Jersey 08540
__________
Telephone: (609) 921-3663
Fax: (609) 921-3933
March 12, 1997
Gothic Energy Corporation
5727 South Lewis Avenue - Suite 700
Tulsa, Oklahoma 74105
Gentlemen:
I have acted as counsel for Gothic Energy Corporation (the "Company") in
connection with the preparation of a Registration Statement filed by the Company
under the Securities Act of 1933, as amended, relating to a proposed public
offering by certain securityholders of the Company of an aggregate of 2,237,864
shares of common stock, $.01 par value (the "Common Stock"), 5,540 shares of 7
1/2% Cumulative Convertible Preferred Stock, $.05 par value (the "Preferred
Stock"), 2,770,000 shares of common stock, $.01 par value, issuable on
conversion of the Preferred Stock (the "Conversion Common Stock"), 1,000,000
Common Stock Purchase Warrants exercisable at $3.19 per share (the "Stratum
Warrants"), 200,000 Common Stock Purchase Warrants exercisable at $2.25 per
share (the "GB Warrants"), and an aggregate of 1,200,000 shares of common stock,
$.01 par value (the "Warrant Stock") issuable on exercise of the Stratum
Warrants and the GB Warrants.
Exhibit 5-1
<PAGE>
Gothic Energy Corporation
March 12, 1997
Page 2
In my capacity as counsel to you, I have examined the original, certified,
conformed photostats, or duplicate copies of all such agreements, certificates
of public officials, certificates of officers, representatives of the Company
and others, and such other documents as I have deemed necessary or relevant as a
basis for the opinions herein expressed. In all such examinations, I have
assumed the genuineness of all signatures on original and certified documents
and the conformity to original and certified documents of all copies submitted
to me as conformed, photostat or duplicate copies. As to various questions of
fact material to such opinions, I have relied upon statements or certificates of
officials and representatives of the Company and others.
On the basis of such examination, I advise you that, in my opinion, (i) the
Common Stock is legally issued, fully paid and non-assessable, (ii) the
Preferred Stock is legally issued, fully paid and non-assessable, (iii) the
Stratum Warrants and the GB Warrants are the validly issued and binding
obligations of the Company in accordance with their terms, and (iv) the shares
of Warrant Stock, when sold, issued and paid for in accordance with the terms of
the Stratum Warrants and the GB Warrants will be legally issued, fully paid and
non-assessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to me in the Prospectus forming a part of such
Registration Statement.
Very truly yours,
William S. Clarke, P.A.
By: /s/ William S. Clarke
----------------------------------
William S. Clarke
Exhibit 5-2
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus constituting
part of this Registration Statement on Form S-3 of our report dated February 24,
1997, on our audits of the consolidated financial statements of Gothic Energy
Corporation and Subsidiaries. We also consent to the reference to our firm
under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Tulsa, Oklahoma
March 11, 1997
Exhibit 23.1-1
