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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Marcum Natural Gas Services, Inc.
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(Exact name of registrant is specified in its charter)
Delaware 84-1169358
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
1675 Broadway, Suite 2150
Denver, Colorado 80202
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None None
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
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(Title of Class)
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This Form 8-A/A Amendment No. 1 is hereby filed to supplement and amend
the information set forth in the Registration Statement on Form 8-A filed on
January 10, 1992 by Marcum Natural Gas Services, Inc.
ITEM 1. DESCRIPTION OF REGISTRANT SECURITIES TO BE REGISTERED
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On March 23, 1998, Marcum Natural Gas Services, Inc., a Delaware
corporation (the "Registrant"), Metretek, Incorporated, a Florida corporation
and wholly-owned subsidiary of the Registrant ("Metretek"), American Meter
Company, a Delaware corporation ("American Meter"), and Eagle Research
Corporation, a Florida corporation and a subsidiary of American Meter ("Eagle"),
entered into an Asset Purchase Agreement, dated as of March 23, 1998 (the
"Purchase Agreement"), providing for, among other things, the sale of certain
assets of Eagle to Metretek in consideration, among other things, for 1,758,242
shares of Common Stock, par value $.01 per share (the "Common Shares"), of the
Registrant and a promissory note convertible into additional Common Shares.
On March 23, 1998, prior to the execution of the Purchase Agreement,
the Registrant executed Amendment No. 1 (the "Amendment") to the Rights
Agreement ("Rights Agreement"), dated as of December 2, 1991, by and between the
Registrant and American Securities Transfer & Trust, Inc. (formerly named
American Securities Transfer, Inc.), as rights agent. The Amendment amends
Section 1(a), 3(a) and 11 of the Rights Agreement to (a) prevent American Meter
and its affiliates from becomes an "Acquiring Person" (as such term is defined
and used in the Rights Agreement), (b) prevent a "Distribution Date" (as such
term is defined and used in the Rights Agreement) from occurring, and (c)
prevent an adjustment of the Purchase Price, number and kind of shares, and the
number of "Rights" (as such term in defined in the Rights Agreement), as a
result of: (i) the execution of the Purchase Agreement (or any amendment thereto
in accordance with the terms thereof), or the consummation of the transactions
contemplated thereby, or the announcement or commencement thereof, or (ii) the
beneficial ownership by American Meter and its affiliates of up to, but not in
excess of, 25% of the Common Shares then outstanding pursuant to the Purchase
Agreement or otherwise. The Amendment also amends Section 13 of the Rights
Agreement to exempt the execution of the Purchase Agreement (or any amendment
thereto in accordance with the terms thereof), the consummation of the
transactions contemplated thereby, or the announcement or commencement thereof,
from the triggering provisions of Section 13. The Amendment also provides for
certain conforming technical amendments in Sections 1, 3(c) and 27 of the Rights
Agreement.
SUMMARY OF RIGHTS
-----------------
On December 2, 1991, the Board of Directors of the Registrant declared
a dividend of one preferred share purchase right (a "Right") for each Common
Share outstanding on December 2, 1991 (the "Record Date"), and further
authorized the issuance of one Right for each Common Share issued after the
Record Date until the earlier of the "Distribution Date," the "Redemption Date"
and the "Final Expiration Date" (as such terms are defined in the Rights
Agreement). Each Right entitles the registered holder thereof to purchase from
the Registrant one one-hundredth of a share of Series C Preferred Stock, par
value $.01 per share ("Preferred Shares"), of the
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Registrant at a purchase price of $25.00 per one one-hundredth of a Preferred
Share (the "Purchase Price"), subject to adjustment. The description and terms
of the Rights are set forth in the Rights Agreement, as amended by the
Amendment.
Until the earlier to occur of (i) the tenth day after a public
announcement that a person or group of affiliated or associated persons
("Person") has become an Acquiring Person, or (ii) the tenth business day (or
such later date as may be determined by the Board of Directors of the Registrant
prior to such time as any Person becomes an Acquiring Person) after the date of
commencement, or the first public announcement of the intention to commence, a
tender offer or exchange offer would result in the beneficial ownership by a
Person of 15% or more of the outstanding Common Shares (the earlier of such
dates being called the "Distribution Date"), the Rights will be evidenced by the
certificates for Common Shares.
The term "Acquiring Person" is defined for purposes of the Rights
Agreement as any Person who beneficially owns 15% or more of the Common Shares
then outstanding, subject to certain exceptions for related parties set forth in
the Rights Agreement. Notwithstanding the foregoing, neither American Meter nor
any of its affiliates shall be deemed to be an "Acquiring Person," and no
"Distribution Date" shall be deemed to have occurred, solely by reason of the
execution of the Purchase Agreement (or any amendment thereto in accordance with
the terms thereof) or the consummation of the transactions contemplated thereby
or by the beneficial ownership by American Meter and/or its affiliates of up to,
but not in excess of 25% of the Common Shares then outstanding. However, a
Person who obtains beneficial ownership of 15% or more of the outstanding shares
of Common Shares, either (i) by reason of share purchases by the Registrant
reducing the number of Common Shares outstanding, or (ii) inadvertently, as
determined in good faith by the Board of Directors, if such Person promptly
divests itself of enough Common Shares so as to beneficially own less than 15%
of the outstanding Common Shares, shall not be an Acquiring Person.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date, upon transfer and
issuance of Common Shares, will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date will also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date, and such separate Right Certificates alone will evidence the
rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on December 1, 2001 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Registrant, in each case, as described below.
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The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of Preferred Shares of certain rights or
warrants to subscribe for or purchase Preferred Shares at a price, or securities
convertible into Preferred Shares with a conversion price, less than the then
current market price of the Preferred Shares, or (iii) upon the distribution to
holders of the Preferred Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of earnings or retained
earnings or dividends payable in Preferred Shares) or of subscription rights or
warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment equal to the greater of $4.00 per share or 100 times
the dividend paid per Common Share. In the event of liquidation, the holders of
the Preferred Shares will be entitled to a minimum preferential liquidation
payment of the greater of $100.00 per share or 100 times the amount payable per
Common Share. Each Preferred Share will have 100 votes, voting together with the
Common Shares. Finally, in the event of any merger, consolidation or other
transaction in which Common Shares are exchanged, each Preferred Share will be
entitled to receive 100 times the amount received per Common Share. These rights
are protected by customary anti-dilution protections. Due to the nature of the
Preferred Shares' dividend, liquidation and voting rights, the value of the one
one-hundredth interest in a Preferred Share purchasable upon exercise of each
right should approximate the value of one Common Share.
In the event any Person becomes an Acquiring Person, each holder of a
Right, other than Rights beneficially owned by an Acquiring Person (which will
thereafter be void), will thereafter have the right to receive upon exercise
that number of Common Shares having a market value of two times the Purchase
Price of the Right.
In the event that, at any time after the Distribution Date, (i) the
Registrant is acquired in a merger or other business combination transaction,
(ii) any Person merges with and into the Registrant and the Registrant is the
surviving corporation, but the Common Shares are changed or exchanged, or (iii)
50% or more of the consolidated assets or earning power of the Registrant are
sold after a Person becomes an Acquiring Person, proper provision will be made
so that each holder of a Right, other than Rights beneficially owned by an
Acquiring Person (which have previously become voided as set forth above), will
thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price of the Rights, that number of shares of common stock of
the acquiring company which at the time of such transaction will have a market
value of two times the exercise price of the Right.
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At any time after a Person becomes an Acquiring Person but before the
Acquiring Person becomes the beneficial owner of 50% or more of the outstanding
Common Shares, the Board of Directors of the Registrant may exchange the Rights
(other than Rights owned by the Acquiring Person which have become void), in
whole or in part, at an exchange ratio of one Common Share per Right, subject to
an adjustment.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% of
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Registrant, be evidenced by depository
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the time a Person becomes an Acquiring Person, the
Board of Directors of the Registrant may redeem all, but not less than all, of
the Rights at a redemption price of $.01 per Right (the "Redemption Price").
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The Rights Agreement may be amended by the Board of Directors of the
Registrant without the consent of the holders of the Rights; provided, however,
that from and after such time as any Person becomes an Acquiring Person, no such
amendment may adversely affect the interests of the holders of the Rights, and
except that the Board of Directors may not reduce the threshold at which
"Acquiring Person" status is obtained to less than the greater of (i) the sum of
.001% and the largest percentage of the outstanding Common Shares then known by
the Company to be beneficially owned by any Person (other than certain related
parties), and (ii) 10%. Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Registrant on terms not approved by
the Board of Directors of the Registrant, including, without limitation, the
right to vote or to receive dividends.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a Person that attempts to acquire the Registrant on
terms not approved by the Board of Directors of the Registrant without
conditioning its offer on a substantial number of Rights being acquired.
Accordingly, the existence of the Rights may deter certain acquirers from making
takeover proposals or tender offers in which stockholders may otherwise desire
to participate. The Rights may be beneficial to management in a hostile tender
offer and may have an adverse impact on stockholders who may want to participate
in such tender offer. However, the Rights are not intended to prevent any
takeover, but rather are designed to enhance the ability of the Board of
Directors to negotiate with an acquirer on behalf of all the stockholders. In
addition, the Rights should in no way interfere with any proxy contest.
The Rights should not interfere with any merger or other business
combination approved by the Board of Directors of the Registrant. Because the
Board of Directors may, at its option, at
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any time prior to such time as any Person becomes an Acquiring Person, redeem
all but not less than all of the outstanding Rights at the Redemption Price.
A copy of the Rights Agreement has been filed as Exhibit 10.6 to the
Registrant's Registration Statement on Form S-18 filed December 13, 1991. A copy
of the Amendment is being filed as Exhibit 2 to this Form 8-A/A, Amendment No.
1. The foregoing Summary of Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement and the
Amendment, which are incorporated in this summary description by reference.
ITEM 2. EXHIBITS.
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1. Rights Agreement, dated as of December 2, 1991, between the
Registrant and American Securities Transfer, Inc., as Rights
Agent (incorporated by reference to Exhibit 10.6 to the
Registrant's Registration Statement or Form S-18, Registration
No. 33-73874 ("Form S-18")).
2. Amendment No. 1 to Rights Agreement, dated March 23, 1998. *
3. Restated Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3.1 to the Form S-18).
4. Form of Right Certificate. *
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* Filed herewith
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
MARCUM NATURAL GAS SERVICES, INC.
Date: April 1, 1998 By /s/ W. Phillip Marcum
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W. Phillip Marcum, President and
Chief Executive Officer
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Exhibit 2
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AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"), dated as
of March 23, 1998, is made and entered into by and between Marcum Natural Gas
Services, Inc., a Delaware corporation (the "Company"), and American Securities
Transfer & Trust, Inc. (formerly American Securities Transfer, Inc.) (the
"Rights Agent").
W I T N E S S E T H
-------------------
WHEREAS, the Company and the Rights Agent have previously entered into
that certain Rights Agreement, dated as of December 2, 1991 (the "Rights
Agreement"); and
WHEREAS, the Board of Directors of the Company has authorized and
approved an Asset Purchase Agreement (the "Asset Purchase Agreement") by and
among American Meter Company, a Delaware corporation ("American Meter"), Eagle
Research Corporation, a West Virginia corporation and a subsidiary of American
Meter ("Eagle"), Metretek, Incorporated, a Florida corporation and a
wholly-owned subsidiary of the Company ("Metretek"), and the Company, providing
for, among other things, the sale of substantially all of the assets of Eagle to
Metretek in exchange for, among other things, shares of common stock, par value
$.01 per share, of the ("Common Stock"), and a promissory note convertible into
shares of Common Stock; and
WHEREAS, the Board of Directors of the Company has determined that the
Asset Purchase Agreement and the transactions contemplated thereby are advisable
and in the best interests of the Company and its stockholders; and
WHEREAS, the willingness of American Meter and Eagle to enter into the
Asset Purchase Agreement as conditioned upon, among other things, the amendment
of the Rights Agreement on the terms set forth herein; and
WHEREAS, Section 27 of the Rights Agreement provides that, among other
things, subject to the restrictions set forth in such Section, the Company may,
by resolution adopted by its Board of Directors, supplement or amend any
provisions of the Rights Agreement without the approval of any holders of
certificates representing rights under the Rights Agreement and, in the event of
such amendment, the Company shall, and the Rights Agent shall, if the Company so
directs, sign a writing evidencing any such supplement or amendment; and
WHEREAS, the Board of Directors of the Company has adopted a resolution
determining that the amendment of the Rights Agreement on the terms set forth
herein are advisable and in the best interests of the Company and its
stockholders;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in the Rights Agreement and in this Amendment, the parties
hereto agree as follows:
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1. Amendments to Section 1.
(a) Amendment to Section 1(a). Section 1(a) of the Rights
Agreement is hereby amended by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained
herein, neither American Meter nor any of its
Affiliates shall be or become an "Acquiring Person"
(and no Shares Acquisition Date shall occur) as a
result of (i) the execution of the Asset Purchase
Agreement (or any amendment thereto in accordance
with the terms thereof) or the consummation of the
transactions contemplated thereby or the announcement
or commencement thereof, or (ii) the beneficial
ownership by American Meter and its Affiliates of up
to, but not in excess of, 25% of the Common Shares
then outstanding, pursuant to the Asset Purchase
Agreement or otherwise."
(b) Additions to Section 1. Section 1 of the Rights Agreement
is hereby further amended to add the following definitions:
"(c) `American Meter' shall mean American Meter
Company, a Delaware corporation.
(d) `Asset Purchase Agreement' shall mean the Asset
Purchase Agreement, dated as of March 23, 1998, by
and among American Meter, Eagle Research Corporation,
a West Virginia corporation and a subsidiary of
American Meter, the Company and Metretek,
Incorporated, a Florida corporation and a
wholly-owned subsidiary of the Company, as the same
may be amended from time to time in accordance with
the terms thereof."
(c) Relettering to Subsections of Section 1. Subsections (c),
(d), (e), (f), (g), (h), (i), (j) and (k) of Section 1 of the Rights Agreement
are hereby relettered to become Subsections (e), (f), (g), (h), (i), (j), (k),
(l) and (m) of Section 1 of the Rights Agreement, respectively.
2. Amendment to Section 3(a). Section 3(a) of the Rights Agreement is
hereby amended by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained
herein, no Distribution Date shall occur as the
result of (i) the execution of the Asset Purchase
Agreement (or any amendment thereto in accordance
with the terms thereof) or the consummation of the
transactions contemplated thereby, or the
announcement or commencement thereof, or (ii) the
beneficial ownership by American Meter and its
Affiliates of up to, but not in excess of, 25% of the
Common Shares then outstanding, pursuant to the Asset
Purchase Agreement or otherwise."
3. Amendment to Section 3(c). The first sentence of the legend in
Section 3(c) of the Rights Agreement is hereby amended in its entirety to read
as follows:
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"This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a
Rights Agreement between Marcum Natural Gas Services,
Inc. and American Securities Transfer & Trust, Inc.,
dated December 2, 1991, as amended as of March 23,
1998 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices
of Marcum Natural Gas Services, Inc."
4. Amendment to Section 11. Section 11 of the Rights Agreement is
hereby amended by adding to the end thereof the following:
"(o) Notwithstanding anything to the contrary
contained herein, the provisions of this Section 11
shall not apply to or be triggered by (i) the
execution of the Asset Purchase Agreement (or any
amendment thereto in accordance with the terms
thereof) or the consummation of the transactions
contemplated thereby, or the announcement or
commencement thereof, or (ii) the beneficial
ownership by American Meter and its Affiliates of up
to, but not in excess of, 25% of the Common Shares
then outstanding, pursuant to the Asset Purchase
Agreement or otherwise."
5. Amendment to Section 13. Section 13 of the Rights Agreement is
hereby amended by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained
herein, the provisions of this Section 13 shall not
apply to or be triggered by the execution of the
Asset Purchase Agreement (or any amendment thereto in
accordance with the terms thereof), or the
consummation of the transactions contemplated
thereby, or the announcement or commencement
thereof."
6. Amendment to Section 27. The end of the parenthetical phrase in the
second sentence of clause (ii) of Section 27 of the Rights Agreement is hereby
amended by deleting the phrase "Patrick Petroleum Corporation of Michigan or
Engineering Measurements Company)" and substituting in its place the following
clause:
"Patrick Petroleum Corporation of Michigan,
Engineering Measurements Company, or American Meter
and its Affiliates)"
7. Rights Agent Not Liable. The Rights Agent shall not be liable for or
by reason of any of the statements of fact or recitals contained in this
Amendment.
8. Effectiveness of Amendment. This Amendment shall be effective as of
the date first above written. All references to the Rights Agreement, including
the terms "Agreement," "hereof," "herein" and the like set forth in the Rights
Agreement shall, as of and after the date first above written, be deemed to be
references to the Rights Agreement as modified and amended by the terms of this
Amendment. Except as and to the extent specifically modified and amended by the
terms of this Amendment, all terms and conditions of the Rights Agreement shall
remain in full force and effect from and after the date first above written.
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9. Governing Law. This Amendment shall in all respects be governed by
and construed in accordance with the laws of the State of Delaware.
10. Captions. Captions of the sections and subsections of this
Amendment are used herein solely for convenience of reference and shall not
control or affect the meaning or construction of any of the provisions of this
Amendment.
11. Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute one and the
same instrument.
IN WITNESS WHEREOF, this Amendment has been executed and delivered on
behalf of the parties hereto by their respective duly authorized officers,
effective as of the date first above written.
MARCUM NATURAL GAS SERVICES, INC.
By: /s/ W. Phillip Marcum
---------------------------------------
W. Phillip Marcum, President
ATTEST:
By: /s/ Gary J. Zuiderveen
--------------------------------
Gary J. Zuiderveen, Secretary
AMERICAN SECURITIES TRANSFER & TRUST, INC.
By: /s/ Stephen King
--------------------------------------
Its: Executive Vice President
--------------------------------------
ATTEST:
By: /s/ Tammy S. Davis
--------------------------------
Its: Corporate Services Officer
--------------------------------
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Exhibit 4
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[Form of Right Certificate]
Certificate No. R- ____________________Rights
NOT EXERCISABLE AFTER DECEMBER 1, 2001 OR EARLIER IF NOTICE OF REDEMPTION IS
GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY ACQUIRING PERSONS (AS DEFINED IN SECTION 11(a)(ii) OF THE RIGHTS
AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHT MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED TO A PERSON WHO WAS AN
ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN ACQUIRING PERSON. THIS
RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 11(a)(ii) OF THE RIGHTS AGREEMENT.]*
Right Certificate
MARCUM NATURAL GAS SERVICES, INC.
This certifies that __________________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement dated as of December 2, 1991 (the "Rights Agreement"), as from time to
time amended, between Marcum Natural Gas Services, Inc., a Delaware corporation
(the "Company"), and American Securities Transfer & Trust, Inc., a corporation
formed under the laws of the State of Colorado (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 p.m. (Denver, Colorado time)
on December 1, 2001 at the principal office of the Rights Agent in Denver,
Colorado, or at the office of its successors as Rights Agent, one one-hundredth
of a fully paid non-assessable share of Series C Preferred Stock, $.01 par value
(the "Preferred Shares"), of the Company, at a purchase price of $25 per one
one-hundredth of a Preferred Share (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase duly
executed. The number of
- ----------
*The portion of the legend in brackets shall be inserted if applicable.
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Rights evidenced by this Right Certificate (and the number of Preferred Shares
which may be purchased upon exercise thereof) set forth above, are the number
and Purchase Price as of December 2, 1991, based on the Preferred Shares as
constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the number
of Preferred Shares which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of Marcum
Natural Gas Services, Inc., and the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate of Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may, but are not required to, be redeemed by the Company at
a redemption price of $.01 per Rights.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Company, be evidenced by depository receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
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No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement, or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement, or to receive dividends or subscription
rights, or otherwise, until the Right or rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent. This Right
Certificate was issued on ________________, 19___.
ATTEST: MARCUM NATURAL GAS SERVICES, INC.
By:
- ----------------------------------- --------------------------------
Secretary President
Countersigned:
American Securities Transfer & Trust, Inc., as Rights Agent
By:
--------------------------------
Authorized Signature
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[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such holder
desires to transfer the Right Certificates.
FOR VALUE RECEIVED _______________________________ hereby sells,
assigns and transfers unto _______________________________________________
(Please print name and address of transferee)
_____________________________________________________________________________
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint __________________ Attorney, to
transfer the within Right Certificate on the books of the within-named company,
with full power of substitution.
Dated: ________________________, 19_____
-------------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
- --------------------------------------------------------------------------------
(To be completed if applicable)
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
-------------------------------------
Signature
- --------------------------------------------------------------------------------
[Form of Reverse Side of Right Certificate -- continued]
4
<PAGE> 5
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Right Certificate.)
TO: MARCUM NATURAL GAS SERVICES, INC.
The undersigned hereby irrevocably elects to exercise ______________ rights
represented by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of such Rights and requests that certificates for such
Preferred Shares be issued in the name of:
Please insert social security
or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
If such number of Right Shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
Dated:______________________, 19___
-------------------------------------------
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Right Certificate in every particular,
without alteration or enlargement or any
change whatsoever)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the Unite States.
[Form of Reverse Side of Right Certificate -- continued]
5
<PAGE> 6
- --------------------------------------------------------------------------------
(To be completed if applicable)
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
-------------------------------------
Signature
- --------------------------------------------------------------------------------
NOTICE
------
The signatures in the foregoing Forms of Assignment and Election must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Forms of
Assignment and Election is not completed, the Company will deem the beneficial
owner of the rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement)
and, in the case of an Assignment, will affix a legend to that effect on any
Right Certificates issued in exchange for his Rights Certificate.
6
