SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported) September 4, 199
MIDDLE BAY OIL COMPANY, INC.
(Exact name of registrant as specified in its charter)
Alabama 0-21702 63-1081013
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
115 South Dearborn Street, Mobile, Alabama 36602
(Address of principal executive offices)
Registrant's telephone number, including area code (334) 432-7540
N/A
(Former name or former address, if changed since last report)
ITEM 5 -- OTHER EVENTS
On September 4, 1996, Middle Bay Oil Company, Inc. (the "Company") signed a
Stock Purchase Agreement with Kaiser-Francis Oil Company (the "Agreement").
Kaiser-Francis has agreed to purchase 1,666,667 shares of Series A Preferred
Stock ("Preferred") at $6.00 per share, for a total investment of $10,000,000.
Management intends to use the proceeds from the sale of the Preferred to fund
exploration projects and proved property acquisitions with exploitation
potential. Kaiser-Francis has informed the Company that it is acquiring the
Preferred for investment purposes only and has no intention of effecting any
change in the business plan or policies of the Company.
The parties have agreed to a five-year purchase period, effective September 4,
1996, with minimum incremental investments of $500,000 each. Each issuance of
Preferred is subject to approval by Kaiser-Francis of the use of proceeds.
The Preferred is nonvoting and accrues dividends at 8% per annum, payable
quarterly in cash. The Preferred is convertible at any time after issuance
into shares of common stock at the rate of two shares of common stock for each
share of Preferred before January 1, 1998. The conversion rate decreases
thereafter at 8% per annum. The Company will pay the costs of registration of
the Preferred or the underlying common stock under the Securities Act of 1933
upon request of Kaiser-Francis. The Company may redeem the Preferred, in
whole or in part, at any time after January 1, 2007 at a price of $6.00 per
share.
Until the expiration of the Agreement, the Company cannot without the prior
written consent of Kaiser-Francis (1) incur any liabilities, commitments or
obligations, contingent or otherwise, or dispose of any of its assets, except
in the ordinary course of business; (2) make or allow any material adverse
changes in its financial position, except in the ordinary course of business;
or (3) incur any bank or other institutional debt or enter into any agreement
contemplating the borrowing of money, except borrowing pursuant to its present
credit facility.
ITEM 7 -- FINANCIAL STATEMENTS, PRO-FORMA FINANCIAL INFORMATION
AND EXHIBITS
(c) Exhibits
99.1 - Stock Purchase Agreement
99.2 - Amendment to the Articles of Incorporation of
Middle Bay Oil Company, Inc. Designating
Series A Preferred Shares
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Middle Bay Oil Company, Inc.
(Registrant)
Date: September 19, 1996 By: /s/ Frank C. Turner, II
Frank C. Turner, II
Vice President and
Chief Financial Officer
Exhibit 99.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into on September
___, 1996 (the "Effective Date"), between:
(i)Middle Bay Oil Company, Inc. ("Middle Bay"); and,
(ii)Kaiser-Francis Oil Company ("Kaiser-Francis").
In consideration of the mutual covenants contained herein, the adequacy
of which is hereby expressly acknowledged, and intending to be legally bound
hereby, Middle and Kaiser-Francis agree as follows:
(1)Purpose of this Stock Purchase Agreement. The purpose of this Agreement is
to set forth the terms and conditions on which Middle Bay shall issue to
Kaiser-Francis shares of preferred capital stock of Middle Bay (the "Preferred
Stock").
(2)Description of Preferred Stock. The Preferred Stock shall be known as the
Series A Preferred Stock. The certificate of designation, preferences and
rights of the Middle Bay Preferred Stock shall be in the form and content of
Exhibit A attached hereto and by this reference made a part hereof (the
"Designation").
(3)Agreement to Issue and Purchase Preferred Stock. Middle Bay hereby agrees
to issue to Kaiser-Francis, and Kaiser-Francis hereby agrees to purchase from
Middle Bay, on and subject to the terms and conditions hereafter set forth,
one million six hundred sixty six thousand six hundred sixty seven (1,666,667)
shares of Middle Bay Preferred Stock.
(4)Conditions on Which Preferred Stock Shall Be Issued. The Preferred Stock
shall be issued by Middle Bay and purchased by Kaiser-Francis on the following
terms and conditions:
(a)The purchase price (hereafter, the "Purchase Price") for each share of
Preferred Stock shall be six United States dollars (US$6.00).
(b)The Purchase Price shall be paid by Kaiser-Francis to Middle Bay at a
bank in the United States by wire-transfer on each Issuance Date (as hereafter
defined) in accordance with such wire-transfer instructions as Middle Bay
shall give to Kaiser-Francis not later than the business day next preceding
the Issuance Date.
(c)The maximum number of shares of Preferred Stock which shall be issued
pursuant to this Agreement shall be one million six hundred sixty six thousand
six hundred sixty seven (1,666,667).
(d)The shares of Preferred Stock shall be issued on or before five years
from the Effective Date and from time to time and on such Issuance Dates as
are determined in the manner hereafter set forth.
(e)Not less than 83,333 shares of Preferred Stock shall be issued on any
one Issuance Date.
(f)Each Issuance Date and the number of shares of Preferred Stock to be
issued on each Issuance Date shall be determined in accordance with the
following paragraph of this Agreement.
(5)Determination of Issuance Date. Each Issuance Date shall be determined as
follows:
(a)Kaiser-Francis may designate an Issuance Date by giving Middle Bay
notice of the number of shares of Preferred Stock Kaiser-Francis desires to
have issued and the date on which Kaiser-Francis desires to have such shares
issued which date shall be not earlier than the tenth (10th) business day
following the effective date of the notice (an "Issuance Date Notice").
(b)Middle Bay may designate an Issuance Date by:
(i)Giving Kaiser-Francis notice of the number of shares of Preferred
Stock Middle Bay desires to issue and the date on which Middle Bay desires the
shares to be issued which date shall be not earlier than the twentieth (20th)
business day following the effective date of the notice (an "Issuance Date
Notice:); and,
(ii)Delivering to Kaiser-Francis together with the notice of the
Issuance Date a statement of the intended use by Middle Bay of the proceeds of
the issuance of the Preferred Stock ( the "Intended Use Statement".
(c)Middle Bay shall designate an Issuance Date in the manner provided in
the preceding subparagraph whenever (i) Middle Bay has determined to proceed
with one or more Projects (as hereafter defined), (ii) Middle Bay has
insufficient funds to proceed with the Project or Projects without obtaining
additional capital by borrowing, issuing capital stock, or obtaining
additional funds from third parties by other means (including joint ventures,
participations, or sales), and (iii) the funds required for the Project or
Projects exceed Five Hundred Thousand dollars ($500,000).
(6)Content of Middle Bay Intended Use Statement. Each Intended Use Statement
shall include the following information:
(a)An identification and executive summary of the oil and gas property
acquisition, the oil and gas exploration and drilling prospect, or other
intended use of the proceeds of the purchase of the Preferred Stock by
Kaiser-Francis (the "Project").
(b)Such underlying geological, engineering, reserve, land, legal,
production and other engineering, financial, geological, scientific, or other
information as Middle Bay has in its possession related to the Project.
(7)Representations and Warranties of Middle Bay. Middle Bay hereby represents
and warrants to Kaiser-Francis that:
(a)Incorporation and Corporate Power. Middle Bay is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Alabama. Middle Bay is duly qualified to do business in each state in
which Middle Bay is so required to be qualified.
(b)Middle Bay Authority. Middle Bay has all the corporate power and
authority necessary and required to own its properties and to conduct its
business as such business is now being conducted. Middle Bay has fully
complied with all the provisions of the Alabama General Corporation Code in
effect at the Effective Date and will have so complied at each Issuance Date.
(c)Absence of Restrictions on Preferred Stock. Kaiser-Francis will
acquire at each Issuance Date good and merchantable title to the Preferred
Stock, free and clear of all liens, claims, options, liabilities, voting
trusts, or voting agreement, charge s, encumbrances or other restrictions of
whatsoever nature, except those set forth in this Agreement.
(d)Lawful Issuance of Preferred Stock. Middle Bay will have at each
Issuance Date full legal power and authorization to issue and deliver the
Preferred Stock in accordance with this Stock Purchase Agreement.
(e)Capitalization of Middle Bay. The authorized capital stock of Middle
Bay at the Effective Date consists of 7,500,000 shares of capital stock,
inclusive of 5,000,000 shares of common stock, $0.02 par value ("Common
Stock"), of which 1,318,917 shares are outstanding and 2,500,000 shares of
undesignated Preferred Stock, $0.02 par value, no shares of which are
outstanding. The shares of Middle Bay Common Stock which have been issued are
validly issued and outstanding, fully paid and non-assessable. There are no
outstanding subscriptions, conversion privileges, calls, warrants, options or
agreements obligating Middle Bay to issue, sell or dispose of, or to purchase,
redeem or otherwise acquire any shares of its capital stock except (i) that
certain contingent obligation to repurchase 112,995 shares at $6.00 per share
more particularly described in Footnote (5) to the Middle Bay Financial
Statements as of December 31, 1995 and (ii) 125,000 shares reserved for
issuance under the Middle Bay 1995 Stock Option and Stock Appreciation Rights
Plan.
(f)Lawful Issuance of Common Stock. None of the Middle Bay Common Stock
has been issued or disposed of in violation of any preemptive rights of any
shareholder nor in violation of any agreement to which Middle Bay was or is a
party.
(g)No subsidiaries. Middle Bay has no subsidiaries and does not own, nor
have the right or obligation to acquire, any shares of equity securities of
any corporation.
(h)Non-Violation of Other Agreements. The execution and delivery of this
Stock Purchase Agreement, and compliance with its terms and provisions by
Middle Bay, will not breach any agreement by which Middle Bay is bound or any
judicial or administrative order or proceeding by which Middle Bay is bound.
(i)Financial Statements and Other Middle Bay Information. Middle Bay
has delivered to Kaiser-Francis copies of the following financial statements
and other information (collectively, the "Financial Statements"):
(i)Middle Bay Financial Statements as of December 31, 1995 and 1994,
and Independent Auditor's Report thereon dated February 23, 1996;
(ii)Middle Bay 1995 Report to Shareholders;
(iii)Middle Bay Proxy Statement for Annual Meeting held May 31,
1996;
(j)Audited Financial Statements. The Financial Statements described in
paragraph (i) above (A) have been prepared in accordance with generally
accepted accounting principles, consistently applied and (B) fairly reflect
the financial condition and results of operations for the indicated periods.
(k)All Financial Statements. All of the Financial Statements are
materially correct and materially complete and fairly reflect the financial
condition and results of operations for the period indicated (except only for
such usual year-end adjustments and footnotes as are omitted).
(l)Books and Records. The books of account, minute books, stock record
books, and other records of Middle Bay are materially complete and correct and
have been maintained in accordance with sound business practices and the
requirements of Section 13(b)(2) of the Securities Exchange Act of 1934, as
amended (whether or not Middle Bay is subject to that Section including the
maintenance of an adequate system of internal control.
(m)Material Liabilities. Middle Bay has no material liabilities except:
(i)Those reflected or reserved against in the Financial Statements;
(ii)Those incurred since December 31, 1995 in the normal course of
business consistent with past practices;
(iii)Those specifically disclosed in the exhibits to this Stock
Purchase Agreement (hereafter, the "Exhibits").
(n)Conduct of Business. Since December 31, 1995, and until the
expiration date of this Agreement ("Expiration Date"), Middle Bay has carried
on and will carry on its business only in the ordinary and normal course, and
has not and will not, without the prior consent of Kaiser-Francis:
(i)Incur any liabilities, commitments or obligations, contingent or
otherwise, or dispose of any of its assets, except in the ordinary course of
its business and for the purpose of carrying on the business as a going
concern;
(ii)Except as may result from its normal operations, make or allow
any material adverse change in its financial position;
(iii)Incur any bank or other institutional debt, or enter into any
agreement contemplating the borrowing of money, except pursuant to the credit
facilities described in Exhibit A to this Agreement.
(o)Tax Returns/Reports. Middle Bay has duly filed all tax reports and
returns required to be filed by it and has duly paid all taxes and other
charges claimed to be due from it by federal, state and local taxing
authorities. Middle Bay has issued no waivers of the statute of limitation
with respect to unaudited years. No material deficiencies are expected to
arise with respect to unaudited tax returns.
(p)Contracts. Middle Bay has in all material respects performed and is
performing all contractual and other obligations required to be performed by
it.
(q)Litigation. There is no pending, or, to the best knowledge and belief
of Middle Bay, threatened claim, litigation, proceeding, order of any court or
governmental agency, or governmental investigation or inquiry to which Middle
Bay is a party or which involves its business operations, any of its property
or any property leased by it which, individually or in the aggregate:
(i)Might result in any material adverse change in the financial
condition, business, prospects, assets, properties or operations of Middle
Bay; or,
(ii)Alleges violation of any law, rule or regulation;
except that certain litigation described in Exhibit B.
(r)Required Corporate Action. The execution, delivery and consummation
of this Agreement has been, or will have been at the time of the first
Issuance Date and at all times thereafter, duly and validly authorized by the
board of directors of Middle Bay and, to the extent so required, by the
shareholders of Middle Bay.
(s)Authorized Execution. This Agreement has been duly authorized,
executed and delivered by Middle Bay. The individual signing this Agreement on
behalf of Middle Bay hereby represents and warrants that such he or she is
duly authorized to sign, execute and deliver this Agreement to
Kaiser-Francis.
(t)Enforceability. This Agreement constitutes the legal, valid, and
binding agreement and obligation of Middle Bay enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium, receivership, and other similar laws affecting the
rights of creditors generally.
(u)Title to Assets; Encumbrances. Middle Bay has good and valid title
(with respect to fee real estate, good and valid title shall mean such title
as may be insured on standard title insurance forms with no exceptions
materially and adversely affecting the value or use of the fee real estate) to
its assets, and in each case subject to no mortgage, pledge, lien, security
interest, conditional sale agreement, or other encumbrance of any nature
whether similar or dissimilar, except:
(i)Such encumbrances which are purchase money security interests
entered into in the ordinary course of business consistent with past practice
reflected on its books and records;
(ii)Lessors' interests in leased tangible real and personal property
reflected on its books and records;
(iii)Such encumbrances for taxes and assessments not yet due and
payable;
(iv)Encumbrances as do not materially detract from the value or
interfere with the use or operation of the asset subject thereto; and,
(v)Encumbrances described on Exhibit C attached hereto.
(v)Environmental Laws. The existence, use and operation of the assets of
are in material compliance with all applicable statutes, rules and regulations
including, without limiting the generality of the foregoing, all environmental
and zoning laws and the Americans With Disabilities Act.
(w)Compliance With Financial Covenants. Middle Bay is in compliance with
all material covenants of all loan agreements or credit facilities to which it
is a party.
(x)Brokerage Fees. Middle Bay has not incurred nor will it incur,
directly or indirectly, any liability for brokerage, finder's, financial
advisor's or agent's fees for commissions by virtue of any commitment made by
Middle Bay in connection with this Stock Purchase Agreement or any transaction
contemplated hereby. Middle Bay has no knowledge that any party has asserted
any claim of such nature.
(y)Use Of Proceeds. Middle Bay shall use the proceeds of the purchase of
the Preferred Stock only for the purposes identified in the Intended Use
Statement.
(z)Time At Which Representations and Warranties Are Made. The
representations and warranties made by Middle Bay in this Agreement shall be
deemed made at the Effective Date and at each Issuance Date.
(aa)Survival and Independence of Representations and Warranties. The
representations and warranties of Middle Bay made in this Agreement shall
survive each Issuance Date notwithstanding any investigation or knowledge of
Kaiser-Francis. Each of the representations and warranties of Middle Bay set
forth in this Agreement is a separate and independent representation and
warranty, shall be cumulative of and in addition to all other warranties and
representations, and shall not limit any other representation or warranty made
herein.
(bb)Middle Bay Indemnification. Middle Bay shall indemnify Kaiser-Francis
against, and hold Kaiser-Francis harmless from, all loss, cost and expense
(including interest at the judgment rate and attorney's fees) arising out of
any material breach by Kaiser-Francis of any representation or warranty made
in this Agreement.
(8)Representations and Warranties of Kaiser-Francis. Kaiser-Francis
represents and warrants that:
(a)Incorporation and Corporate Power. Kaiser-Francis is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware. Kaiser-Francis has all the corporate power and authority necessary
and required to consummate the transactions contemplated by this Stock
Purchase Agreement.
(b)Non-Violation of Other Agreements. The execution and delivery of this
Stock Purchase Agreement, and compliance with its terms and provisions by
Kaiser-Francis, will not breach any agreement by which Kaiser-Francis is bound
or any judicial or administrative order or proceeding by which Middle Bay is
bound.
(c)Required Corporate Action. The execution, delivery and consummation
of this Agreement has been, or will have been at the time of the first
Issuance Date and at all times thereafter, duly and validly authorized by the
board of directors of Kaiser-Francis and, to the extent so required, by the
shareholders of Kaiser-Francis.
(d)Authorized Execution. This Agreement has been duly authorized,
executed and delivered by Kaiser-Francis. The individual signing this
Agreement on behalf of Kaiser-Francis hereby represents and warrants that he
or she is duly authorized to sign, execute and deliver this Agreement to
Middle Bay.
(e)Enforceability. This Agreement constitutes the legal, valid, and
binding agreement and obligation of Kaiser-Francis enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium, receivership, and other similar laws affecting the
rights of creditors generally.
(f)Time At Which Representations and Warranties Are Made. The
representations and warranties made by Kaiser-Francis in this Agreement shall
be deemed made at the Effective Date and at each Issuance Date.
(g)Survival and Independence of Representations and Warranties. The
representations and warranties of Kaiser-Francis made in this Agreement shall
survive each issuance Date notwithstanding any investigation or knowledge of
Middle Bay. Each of the representations and warranties of Kaiser-Francis set
forth in this Agreement is a separate and independent representation and
warranty, shall be cumulative of and in addition to all other warranties and
representations, and shall not limit any other representation or warranty made
herein.
(h)Kaiser-Francis Indemnification. Kaiser-Francis shall indemnify Middle
Bay against, and hold Middle Bay harmless from, all loss, cost and expense
(including interest at the judgment rate and attorney's fees) arising out of
any material breach by Kaiser-Francis of any representation or warranty made
in this Agreement.
(9)Conduct of Business Prior to the Expiration Date. From the Effective Date
until the Expiration Date Middle Bay shall:
(a)Maintain its corporate existence in good standing;
(b)Maintain the general character of its business and conduct its
business in its ordinary and usual manner;
(c)Maintain proper business and accounting records;
(d)Maintain its properties in normal repair and condition, normal wear
and tear and damage due to fire or other unavoidable casualty excepted;
(e)Preserve its business organization intact, use its best efforts to
maintain satisfactory relationships with suppliers, customers and others
having business relations with them, and use its best efforts to procure the
willingness of all of the personnel employed by them immediately prior to the
execution of this Stock Purchase Agreement who are material to the success of
its business to continue in its employ on substantially the same terms and
conditions as those on which such personnel were employed immediately prior to
the execution of this Stock Purchase Agreement;
(f)Maintain in full force and effect insurance comparable in amount and
in scope of coverage to that now maintained by it;
(g)Perform all of its obligations under contracts, leases and documents
relating to or affecting its assets, properties and businesses; and,
(h)Comply with and perform all obligations and duties imposed upon it by
federal, state and local laws, and all rules, regulations and orders imposed
by federal, state or local governmental authorities, except as may be
contested by them in good faith by appropriate proceedings.
(i)Except as may be first approved in writing by Kaiser-Francis or as is
otherwise permitted or contemplated in this Stock Purchase Agreement, conduct
the business of, and all transactions by Middle Bay, only in the usual and
ordinary course.
(j)Make any change in its Articles of Incorporation or Bylaws;
(k)Deliver to Kaiser-Francis, within the times required for the filing of
SEC Forms 10K and 10Q, true and correct copies of the annual and quarterly
financial statements of Middle Bay which statements shall be prepared in
compliance with the Rules and Regulations of the Securities and Exchange
Commission.
(l)Deliver to Kaiser-Francis annual reports of reserves of oil and gas
and all revisions thereto, within twenty business days of the completion of
the preparation thereof.
(10)Conditions Precedent to Obligation of Kaiser-Francis To Purchase at Any
Given Issuance Date. The obligation of Kaiser-Francis to purchase Preferred
Stock at any given Issuance Date (other than an Issuance Date designated by
Kaiser-Francis) shall be subject to each and all of the following conditions
precedent:
(a)The representations, warranties and covenants of Middle Bay shall be
true at the Issuance Date as though such representations, warranties and
covenants were also made at the Issuance Date.
(b)Middle Bay shall have delivered to Kaiser-Francis and Kaiser-Francis
shall have accepted (which acceptance Kaiser-Francis may grant or withhold in
its sole discretion) the Intended Use Statement.
(c)Middle Bay shall not then be in breach of any material obligation of
Middle Bay arising under this Agreement or under the Designation.
(d)Middle Bay shall have not suffered any materially adverse change in
assets, operations or financial results of operations.
(e)Middle Bay shall have preserved its business organization and senior
management substantially intact.
(f)No litigation, proceeding, investigation or inquiry shall be pending
or threatened to enjoin or prevent the consummation of the transactions
contemplated by this Stock Purchase Agreement.
(g)Middle Bay shall have delivered to Kaiser-Francis, as of each such
Issuance Date, an opinion of outside counsel regularly engaged by Middle Bay,
in form and substance acceptable to Kaiser-Francis (provided such acceptance
is not unreasonably withheld or delayed), opining to the matters set forth in
paragraphs 7(a) through 7(f).
In the event any one or more of these conditions shall not have been fulfilled
prior to or at the Issuance Date, Kaiser-Francis may (at its option exercised
in its sole discretion without any obligation to offer an explanation
therefor) decline to purchase the preferred on that given Issuance Date,
without prejudice to the right of both Middle Bay and Kaiser-Francis to
designate additional Issuance Dates. Kaiser-Francis shall be entitled to waive
compliance with any one or more of the conditions, representations, warranties
or covenants in whole or in part and any such waiver shall be without
prejudice to the rights of Kaiser-Francis arising under Paragraph 7.
(11)Closing. The Closing ("Closing") at each Issuance Date shall take place
during regular business hours at a time mutually agreeable to Middle Bay and
Kaiser-Francis. At the Closing Middle Bay and Kaiser-Francis shall execute and
deliver all documents and take all other actions reasonably necessary to
effect the issuance and purchase of the preferred Stock. Without limiting the
generality of the foregoing, the following actions shall be taken at the
Closing concurrently.
(a)Middle Bay shall deliver a certificate in usual and customary form
evidencing the Preferred Stock.
(b)Middle Bay shall deliver to Kaiser-Francis a certificate executed by
the chief executive officer of Middle Bay certifying that the representations
and warranties of Middle Bay set forth herein are true and correct as of the
Issuance Date.
(c)Middle Bay shall deliver the opinion of Middle Bay Counsel
contemplated by paragraph.
(d)Kaiser-Francis shall deliver to Middle Bay an opinion of outside
counsel regularly engaged by Kaiser-Francis, in form and substance acceptable
to Middle Bay (provided such acceptance is not unreasonably withheld or
delayed), opining to the matters set forth in Paragraphs 8(a) through (e).
(e)Kaiser-Francis shall make payment for the Preferred Stock as
heretofore provided in this Agreement.
(12)Definition of Expiration Date. As used herein the Expiration Date shall
be the first business day following the Closing on the last Issuance Date.
(13)Provisions Respecting Preferred Stock and Common Stock. The following
provisions apply to the Preferred Stock issued pursuant to this Agreement and
to the shares of Middle Bay Common Stock into which Kaiser-Francis may from
time to time convert the Common Stock (collectively, the "KF Shares").
(a)The KF Shares, when delivered, will not be registered pursuant to the
Securities Act of 1933 or any securities laws of any state. The KF Shares
will be "restricted securities" as that term is defined in Securities and
Exchange Commission Rule 144.
(b)The certificates representing the KF Shares will bear the following
restrictive legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR
TRANSFERRED FOR VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM
UNDER THE SECURITIES ACT OF 1933 AND/OR THE SECURITIES ACT OF ANY STATE HAVING
JURISDICTION, OR AN OPINION OF COUNSEL TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS."
(c)Kaiser-Francis represents and warrants to Middle Bay that:
(i)Kaiser-Francis is acquiring the KF Shares for investment and not
with a view to further distribution.
(ii)Kaiser-Francis is acquiring the KF Shares for its own account.
(iii)Kaiser-Francis has reviewed the most recent SEC Form 10K and
Form 10Q filed by Middle Bay and all information respecting Middle Bay which
Kaiser-Francis deem relevant or material to a decision whether to acquire the
KF Shares.
(iv)Middle Bay has made available to Kaiser-Francis all information
which Kaiser-Francis has requested all information which Kaiser-Francis deems
relevant or material to a decision whether to acquire the KF Shares.
(v)Kaiser-Francis has the knowledge and experience necessary to
analyze the business and affairs of Middle Bay and to determine whether to
acquire the KF Shares.
(d)Middle Bay shall on one occasion only, upon ninety (90) days prior
written notice to Middle Bay, file a registration statement with the
Securities and Exchange Commission and the applicable state securities
commissions of California, Florida, Illinois, New York, Oklahoma, Texas, and
five (5) additional states selected by Kaiser-Francis, such registration
statements, applications for approval, notices, or other filings as shall be
reasonably necessary to permit the lawful sale by Kaiser-Francis of the KF
Shares under federal law and under the laws of such states (hereafter
individually and collectively called the "registration" or "registration
statement").
(e)The registration statement shall be filed in compliance with the
Securities Act of 1933, Rule 415 of the Securities and Exchange Commission,
and the laws of each state in which the registration is filed.
(f)Middle Bay shall use Middle Bay's best efforts to cause the
registration statement to become effective permitting the resale of the KF
Shares without restriction as soon as possible following the filing of the
registration.
(g)Middle Bay shall pay all costs of the registration (including filing
fees, legal, accounting, printing and transfer agent costs), excluding
Kaiser-Francis.
(h)Middle Bay shall submit all registration documents to Kaiser-Francis
reasonably in advance of filing or finalizing such documents and shall
receive, consider and accept or reject (in Middle Bay's reasonable discretion)
such comments as Kaiser-Francis shall timely make. Middle Bay shall file the
registration statement in accordance with all applicable laws.
(i)Middle Bay represents and warrants that the registration statement
(including any prospectus) will (i) contain all statements which are required
to be stated therein, including all such statements respecting Middle Bay (and
its subsidiaries) and the sale by Middle Bay of the KF Shares, by the
Securities Act of 1933 and any applicable state securities law, (ii) conform
in all material respects with the applicable requirements of such acts, and
(iii) will not contain any untrue statement of a material fact or fail to
state any material fact necessary to make the statements therein not
misleading.
(j)Kaiser-Francis shall advise, cooperate and consult with Middle Bay in
the registration as may be appropriate.
(k)Middle Bay shall keep Kaiser-Francis reasonably advised of the status
of the registration.
(l)If at any time, Middle Bay has material information not publicly
disclosed which, under the applicable regulations of the Securities and
Exchange Commission precludes the sale of KF Shares without an effective
amendment thereto:
(i)Middle Bay shall promptly advise Kaiser-Francis and
Kaiser-Francis shall cease effecting sales of the Shares until an appropriate
amendment becomes effective;
(ii)Middle Bay shall withhold such information from the public for
only so long as the shortest reasonable period of time a valid reason for such
non-disclosure exists; and,
(iii)Middle Bay shall promptly file an appropriate amendment and use
its best efforts to cause the amendment to become effective on the same terms
and conditions as provided above for the registration statement.
(m)Middle Bay shall use its best efforts to maintain the effectiveness of
the registration statement for two years following the last Issuance Date
designated by Middle Bay or Kaiser-Francis.
(n)Middle Bay hereby represents and warrants to Kaiser-Francis that
Middle Bay shall, from and after the Effective Date for so long as
Kaiser-Francis owns any of the KF Shares comply with the reporting
requirements set forth in Securities and Exchange Commission Rule 144.
(o)The representations and warranties made in this Paragraph shall
survive for the maximum periods permitted by applicable law.
(14)Miscellaneous Provisions. The following miscellaneous provisions shall
apply to this Agreement:
(a)All notices or advices required or permitted to be given by or
pursuant to this Agreement, shall be given in writing. All such notices and
advices shall be (i) delivered personally, (ii) delivered by facsimile or
delivered by U.S. Registered or Certified Mail, Return Receipt Requested mail,
or (iii) delivered for overnight delivery by a nationally recognized overnight
courier service. Such notices and advices shall be deemed to have been given
(i) the first business day following the date of delivery if delivered
personally or by facsimile, (ii) on the third business day following the date
of mailing if mailed by U.S. Registered or Certified Mail, Return Receipt
Requested, or (iii) on the date of receipt if delivered for overnight delivery
by a nationally recognized overnight courier service. All such notices and
advices and all other communications related to this Agreement shall be given
as follows:
If to Middle Bay: John J. Bassett, President
Middle Bay Oil Company, Inc.
115 South Dearborn Street
Mobile, Alabama, 36602
(334) 432-7540 - Telephone
(334) 433-7802 - Facsimile
With Copy to: H. Grady Thrasher, III
Five Concourse Parkway
Suite 2150
Atlanta, Georgia 30328
(770) 804-8000 - Telephone
(770) 804-5555 - Facsimile
If to Kaiser-Francis: Gary R. Christopher
Acquisitions Coordinator
6733 South Yale
Tulsa, Oklahoma 74136
(918) 491-4576 Telephone
(918) 491-4694 Facsimile
With Copy to: Frederic Dorwart
Old City Hall
124 East Fourth Street
Tulsa, OK 74103-5010
(918) 583-9945 - Telephone
(918) 583-8251 - Facsimile
or to such other address as the party may have furnished to the other parties
in accordance herewith, except that notice of change of addresses shall be
effective only upon receipt.
(b)This Agreement is made and executed in Tulsa County, Oklahoma.
(c)This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law provisions) of the State
of Oklahoma.
(d)This Agreement is the entire Agreement of the parties respecting the
subject matter hereof. There are no other agreements, representations or
warranties, whether oral or written, respecting the subject matter hereof.
(e)No course of prior dealings involving any of the parties hereto and no
usage of trade shall be relevant or advisable to interpret, supplement,
explain or vary any of the terms of this Agreement, except as expressly
provided herein.
(f)This Agreement, and all the provisions of this Agreement, shall be
deemed drafted by all of the parties hereto.
(g)This Agreement shall not be interpreted strictly for or against any
party, but solely in accordance with the fair meaning of the provisions hereof
to effectuate the purposes and interest of this Agreement.
(h)Each party hereto has entered into this Agreement based solely upon
the agreements, representations and warranties expressly set forth herein and
upon his own knowledge and investigation. Neither party has relied upon any
representation or warranty of any other party hereto except any such
representations or warranties as are expressly set forth herein.
(i)Each of the persons signing below on behalf of a party hereto
represents and warrants that he or she has full requisite power and authority
to execute and deliver this Agreement on behalf of the parties for whom he or
she is signing and to bind such party to the terms and conditions of this
Agreement.
(j)This Agreement may be executed in counterparts, each of which shall be
deemed an original. This Agreement shall become effective only when all of
the parties hereto shall have executed the original or counterpart hereof.
This agreement may be executed and delivered by a facsimile transmission of a
counterpart signature page hereof.
(k)In any action brought by a party hereto to enforce the obligations of
any other party hereto, the prevailing party shall be entitled to collect from
the opposing party to such action such party's reasonable litigation costs and
attorneys fees and expenses (including court costs, reasonable fees of
accountants and experts, and other expenses incidental to the litigation).
(l)This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and assigns.
(m)This is not a third party beneficiary contract. No person or entity
other than a party signing this Agreement shall have any rights under this
Agreement.
(n)This Agreement may be amended or modified only in a writing which
specifically references this Agreement.
(o)This Agreement may not be assigned (including performance by
subcontract) by any party hereto.
(p)Nothing in this Agreement shall be construed to create a partnership
or joint venture, nor to authorize any party hereto to act as agent for or
representative of any other party hereto. Each party hereto shall be deemed an
independent contractor and no party hereto shall act as, or hold itself out as
acting as, agent for any other party hereto.
(q)A party to this Agreement may decide or fail to require full or timely
performance of any obligation arising under this Agreement. The decision or
failure of a party hereto to require full or timely performance of any
obligation arising under this Agreement (whether on a single occasion or on
multiple occasions) shall not be deemed a waiver of any such obligation. No
such decisions or failures shall give rise to any claim of estoppel, laches,
course of dealing, amendment of this Agreement by course of dealing, or other
defense of any nature to any obligation arising hereunder.
(r)Time is of the essence with respect to each obligation arising under
this Agreement. The failure to timely perform an obligation arising hereunder
shall be deemed a failure to perform the obligation.
(s)In the event any provision of this Agreement, or the application of
such provision to any person or set of circumstances, shall be determined to
be invalid, unlawful, or unenforceable to any extent for any reason, the
remainder of this Agreement, and the application of such provision to persons
or circumstances other than those as to which it is determined to be invalid,
unlawful, or unenforceable, shall not be affected and shall continue to be
enforceable to the fullest extent permitted by law.
(t)Any cause of action for a breach or enforcement of, or a declaratory
judgment respecting, this Agreement shall be commenced and maintained only in
the United States District Court for the Northern District of Oklahoma or the
applicable Oklahoma state trial court sitting in Tulsa, Oklahoma and having
subject matter jurisdiction.
Dated and effective the date first set forth above.
"Middle Bay"
Middle Bay Oil Company, Inc.
by /s/ John J. Bassett
John J. Bassett
"Kaiser-Francis"
Kaiser-Francis Oil Company
by /s/ Gary R. Christopher
Gary R. Christopher
Exhibit 99.2
CERTIFICATE OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION OF
MIDDLE BAY OIL COMPANY, INC.
I.
The name of the corporation is MIDDLE BAY OIL COMPANY, INC., a
corporation organized and existing under and by virtue of the Alabama Business
Corporation Act (the "Corporation").
II.
In accordance with the provisions of Article III of the Articles of
Incorporation of the Corporation, the Corporation has the authority to issue
not more than 2,500,000 shares of Preferred Stock of the Corporation with a
$0.02 par value. The Corporation hereby designates a new series of Preferred
Stock. The distinctive designation of such series shall be "Series A
Preferred Stock," and the number of shares constituting such series shall be
1,666,667 shares having a stated value of $6.00 per share. The rights and
preferences of the holders of the Series A Preferred Stock shall be as set
forth in the following paragraphs A through I of this Article.
A.Certain Definitions.
"Common Stock" means, collectively, the Corporation's Common Stock,
par value $.0.02 per share, and any capital stock of any class of the
Corporation hereafter authorized which is not limited to a fixed sum or
percentage of par or stated value in respect to the rights of the holders
thereof to participate in dividends or in the dissolution of assets upon any
liquidation, dissolution or winding up of the Corporation.
"Dividend Payment Date" shall mean the first day of January, April,
July and October in each year, commencing October 1, 1996.
"Dividend Period" shall mean the period beginning on any Dividend
Payment Date and ending on the day before the succeeding Dividend Payment
Date; provided, however, that the first Dividend Period for each share of
Series A Preferred Stock shall commence on the date of issuance of such share,
and the last Dividend Period for each share of Series A Preferred Stock shall
end on the date such share is converted into Common Stock.
"Junior Securities" means any of the Corporation's equity securities
other than the Series A Shares.
"Liquidation Value" of any Series A Share as of any particular date
will be equal to the sum of $6.00 plus, in the event of any liquidation,
dissolution or winding up of the Corporation, unpaid dividends on such Series
A Share shall be added to the Liquidation Value of such Share on the payment
date in any liquidation, dissolution or winding up accrued to the close of
business on such payment date.
"ABCA" means the Alabama Business Corporation Act, as amended from
time to time.
"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.
"Share" or "Series A Share" means a share of the Series A Preferred
Stock.
B.Dividends; Capital.
1.General Obligation. When and as declared by the Corporation's Board of
Directors and to the extent permitted under the ABCA, the Corporation will pay
preferential dividends to the holders of its Series A Preferred Stock as
provided in this paragraph B. Except as otherwise provided herein, dividends
on each Share will accrue cumulatively on a daily basis at the rate of eight
percent (8%) per annum of the "Liquidation Value" thereof from and including
the date of issuance of such Share to and including the date on which such
Share is converted (without compounding, except insofar as accrued but unpaid
dividends are added to the Liquidation Value upon any liquidation, dissolution
or winding up in accordance with the terms hereof). Such dividends will
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 will 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.
2.Distribution of Partial Dividend Payments. If at any time the
Corporation pays less than the total amount of dividends then accrued with
respect to the Shares, such payment will be distributed ratably among the
holders of Shares based upon the aggregate accrued but unpaid dividends on the
Shares held by each such holder.
3.Capital. Upon issuance of any Series A Preferred Stock, the entire
consideration received therefor shall be allocated to the "capital" of the
Corporation, and the Corporation shall take no action to reduce its capital in
respect of the Series A Preferred Stock below the Liquidation Value of all
outstanding Series a Preferred Stock.
C.Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, the holders of Shares will 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 (including the amount of any accrued
but unpaid dividends) of all Shares outstanding. If, upon any such
liquidation, dissolution or winding up of the Corporation, the Corporation's
assets to be distributed among the holders of the Shares 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 will be distributed
ratably among such holders based upon the aggregate Liquidation Value of the
Shares held by each such holder. The Corporation will 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 Shares. Neither the
consolidation or merger of the Corporation into or with any other corporation
or corporations, 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 will be
deemed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this paragraph C.
D.Voting Rights. Except as provided otherwise by law, the Series A Preferred
Stock will have no voting rights.
E.Conversion.
1.Conversion by Holder. At any time after issuance of the Shares, any holder
of Shares may convert all or any portion of the Shares held by such holder
into shares of Common Stock, at a ratio (i) at any time on or before January
1, 1998, two shares of Common Stock for each Share of Preferred Stock and (ii)
at any time on or after January 1, 1998, at a ratio of two shares of Common
Stock for each Series A Preferred Share times 1.08 times the number of full
years (excluding partial years) which have elapsed since January 1, 1998 to
the date of conversion. Any such conversion will be deemed effected at the
close of business on the date which the certificate or certificates
representing the Shares to be converted have been delivered by the holder to
the Corporation at its principal office, together with a request for
conversion of such Shares.
2.Conversion Procedures.
a.At such time as a conversion has been effected, the rights of the holder of
such Shares as such holder will cease and the Person or Persons in whose name
or names any certificate or certificates for shares of Common Stock are to be
issued upon such conversion will be deemed to have become the holder or
holders of record of the shares of Common Stock represented thereby.
b.As soon as possible after a conversion has been effected, the Corporation
will deliver to the holder of Shares being converted:
(1)A certificate or certificates representing the number of shares of Common
Stock issuable by reason of such conversion in such name or names and such
denomination or denominations as the converting holder has specified;
(2)Payment in an amount equal to all accrued dividends through the date of
conversion with respect to each Share converted, which have not been paid
prior thereto; and
(3)A certificate representing any Shares which were represented by the
certificate or certificates delivered to the Corporation in connection with
such conversion but which were not converted.
c.If for any reason the Corporation is unable to pay any accrued dividends
payable on the Shares being converted, the Corporation will 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 will provide such holder with written evidence of its
obligation to such holder.
d.The issuance of certificates for shares of Common Stock upon conversion of
Shares will be made without charge to the holders of such Shares 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 Common
Stock. Upon conversion of each Share, the Corporation will take all such
actions as are necessary in order to insure that the Common Stock issuable
with respect to such conversion will be validly issued, fully paid and
nonassessable.
e.The Corporation will not close its books against the transfer of Shares or
of Common Stock issued or issuable upon conversion of Shares in any manner
which interferes with the timely conversion of Shares.
F.Optional Redemption.
1.The Series A Preferred Stock may be redeemed, in whole or in part, upon
notice given as provided in paragraph F.2 (but subject to the terms and
conditions hereinafter set forth), at the option of the Corporation, at any
time and from time to time after January 1, 2007, at a redemption price of
$6.00 per Share, together with dividends accrued and unpaid thereon to the date
of redemption (the "Redemption Price"), so long as funds are legally available
for such redemption.
2.If pursuant to paragraph F.2 the Corporation shall redeem any shares of
Series A Preferred Stock, the Corporation shall give written notice of such
redemption to each holder of record of Series A Shares to be redeemed not less
than thirty (30) nor more than ninety (90) days prior to the date fixed for
redemption, by certified mail enclosed in a postage-paid envelope addressed to
such holder at such holder's address as the same shall appear on the books of
the Corporation. Such notice shall (i) state that the Corporation has elected
to redeem such Shares, (ii) state the date fixed for redemption, (iii) state
the Redemption Price and (iv) call upon such holder to surrender to the
Corporation on or after said date at its principal place of business
designated in such notice a certificate or certificates representing the
number of Series A Shares to be redeemed in accordance with such notice. On
or after the date fixed in such notice for redemption, each holder of shares
of Series A Preferred Stock to be so redeemed shall present and surrender the
certificate or certificates for such Shares to the Corporation at the place
designated in said notice, and thereupon the Redemption Price of such Shares
shall be paid to, or to the order of, the Person whose name appears on such
certificate or certificates as the owner thereof. From and after the date
fixed in any such notice as the date for redemption, unless default shall be
made by the Corporation in providing for the payment of the Redemption Price
pursuant to such notice, all rights of the holders of the Series A Shares so
redeemed, except the right to receive the Redemption Price (but without
interest thereon), shall cease and terminate. If less than all of the
outstanding Series A Shares are to be redeemed, the Shares to be redeemed
shall be allocated among the holders thereof in proportion to the respective
number of Shares held by them.
3.Any Series A Shares redeemed by the Corporation shall be retired but may be
reissued by the Corporation from time to time by action of its Board of
Directors.
G.Covenants of Corporation. So long as any of the Shares are outstanding, the
Corporation shall do all of the following (the "Covenants"):
1.Maintain its corporate existence in good standing;
2.Maintain the general character of its business and conduct its business in
its ordinary and usual manner;
3.Maintain proper business and accounting records;
4.Comply with and perform all material obligations and duties imposed upon it
by federal, state and local laws and all rules, regulations and orders imposed
by federal, state or local governmental authorities, except as may be
contested by them in good faith by appropriate proceedings;
5.Make any change in its Articles of Incorporation or Bylaws;
6.Deliver to the holders of the Series A Preferred Shares, within the times
required for the filing of SEC Forms 10-K and 10-Q, true and correct copies of
the annual and quarterly financial statements of the Corporation, which
statements shall be prepared in compliance with the Rules and Regulations of
the Securities and Exchange Commission;
7.Deliver to the holders of the Series A Preferred Shares annual reports of
reserves of oil and gas and all revisions thereto within twenty (20) business
days of the completion of the preparation thereof;
8.Comply with all financial covenants in all loan agreements or credit
facilities to which the Corporation is a party; and
9.Timely make all filings and submit all reports required by the Rules and
Regulations of the Securities and Exchange Commission.
H.Voting. The holders of the Series A Preferred Stock shall have the sole and
exclusive right to vote, in lieu of the vote of holders of Common Stock or any
other capital stock of the Corporation, in the event of any Event of Default.
An Event of Default shall be deemed to have occurred in the event: (i) the
Corporation shall fail to declare or timely pay any dividend on the Series A
Preferred Stock or (ii) there is a breach of any of the Covenants which
remains uncured thirty (30) calendar days after the Corporation shall have
received notice of such breach from any holder of any of the Shares.
I.Notices. Except as otherwise expressly provided, all notices referred to
herein will be in writing and will be deemed to have been given either when
delivered personally or three business days after having been mailed by
registered or certified mail, return receipt requested, postage prepaid (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).
J.Remedies. The remedies afforded the holders of Shares in this paragraph are
cumulative and not sole or exclusive.
K.Conflict With Other Provisions. In the event of any conflict between the
provisions of this Section and any other provisions of this Certificate of
Amendment to the Articles of Incorporation, then the provisions of this
Section shall govern and control.
IN WITNESS WHEREOF, Middle Bay Oil Company, Inc. has caused this
Certificate of Amendment to be signed by its President and attested by its
Secretary this _________ day of August, 1996.
MIDDLE BAY OIL COMPANY, INC.
ATTEST:
By: /S/ John J. Bassett
President
/s/ Lynn M. Davis
Secretary
