<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE , 1998
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
MIDDLE BAY OIL COMPANY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
ALABAMA 1311 63-1081013
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
1221 LAMAR STREET, SUITE 1020 JOHN J. BASSETT
HOUSTON, TEXAS 77010 1221 LAMAR STREET, SUITE 1020, HOUSTON, TX
77010
(713) 759-6808 (713) 759-6808
(Address, including zip code, and telephone (Name, address, including zip code, and
number, telephone number,
including area code, of Registrant's principal including area code, of agent for service)
executive offices)
</TABLE>
---------------------
COPIES TO:
H. GRADY THRASHER, III, ESQ.
THRASHER, WHITLEY, HAMPTON & MORGAN
FIVE CONCOURSE PARKWAY, SUITE 2150
ATLANTA, GEORGIA 30328
APPROXIMATE DATE OF COMMENCEMENT OF PUBLIC TRADING OF SECURITIES: As soon
as practicable after the effective date of this Registration Statement and upon
consummation of the meeting of stockholders of Enex Resources Corporation
described herein.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
<TABLE>
<CAPTION>
=================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER UNIT(1) PRICE(2) REGISTRATION FEE(2)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock................. 655,316 shares $ (2) $ (2) $1,232.40
=================================================================================================================
</TABLE>
(1) Based upon the estimated number of Shares of the Registrant issuable upon
consummation of the Merger described herein.
(2) Estimated in accordance with Rule 457(f)(2), solely for the purpose of
calculating the registration fee. The proposed maximum aggregate offering
price is $4,177,635.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE> 2
The statements contained herein that are not historical facts are
forward-looking statements and therefore involve a number of risks and
uncertainties. The actual results of future events described in such forward-
looking statements in this Prospectus/Proxy Statement, including those regarding
Middle Bay's and Enex's financial results, levels of oil and gas production or
reserve calculations, capital expenditures and capital resource activities,
could differ materially from those estimated, anticipated or projected. Among
the factors that could cause actual results to differ materially are: general
economic conditions, competition, government regulations, fluctuations in oil
and natural gas prices and the factors set forth in "Risk Factors" below, as
well as the risks and uncertainties set forth from time to time in the other
public reports filed with the SEC and incorporated by reference herein.
<PAGE> 3
MIDDLE BAY OIL COMPANY, INC.
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
ITEM
NUMBER FORM S-4 CAPTION PROXY STATEMENT/PROSPECTUS CAPTION
- ------ ---------------- ----------------------------------
<C> <S> <C>
A. Information About the Transaction:
1. Forepart of the Registration Statement and
Outside Front Cover Page of Prospectus........ Outside Front; Cover Page of Proxy
Statement/Prospectus
2. Inside Front and Outside Back Cover Pages of
Proxy Statement/Prospectus.................... Inside Front and Outside Back Cover Pages of
Proxy Statement/Prospectus
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information................. Summary; Risk Factors; Summary Selected
Financial Information; Certain Considerations
4. Terms of the Transaction...................... Summary; The Merger
5. Pro Forma Financial Information............... Comparative Per-Share Data; Unaudited Selected
Pro Forma Financial Information
6. Material Contacts with the Company Being
Acquired...................................... Summary; The Merger; Recent Developments
7. Additional Information Required for Reoffering
by Persons and Parties Deemed to be
Underwriters.................................. Not applicable
8. Interests of Named Experts and Counsel........ Certain Relationships and Related Transactions
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities................................... Not applicable
B. Information About the Registrant:
10. Information with Respect to S-3 Registrants... Incorporation of Certain Information by
Reference; Business of Middle Bay
11. Incorporation of Certain Information by
Reference..................................... Incorporation of Certain Documents by
Reference
12. Information with Respect to S-2 or S-3
Registrants................................... Incorporation of Certain Documents by
Reference; Business of Middle Bay
13. Incorporation of Certain Information by
Reference..................................... Not applicable
14. Information with Respect to Registrants Other
Than S-3 or S-2 Registrants................... Not applicable
C. Information About the Company Being Acquired:
15. Information with Respect to S-3 Companies..... Incorporation of Certain Information by
Reference; Business of Enex
16. Information with Respect to S-2 or S-3
Companies..................................... Incorporation of Certain Information by
Reference; Business of Enex
17. Information with Respect to Companies Other
Than S-2 or S-3 Companies..................... Not applicable
D. Voting and Management Information:
18. Information if Proxies, Consents or
Authorizations are to be Solicited............ Cover Page of Prospectus; Summary;
Introduction; The Reorganization; Description
of Securities
19. Information if Proxies, Consents or
Authorizations are not to be Solicited or in
an Exchange Offer............................. Not applicable
</TABLE>
<PAGE> 4
PRELIMINARY COPY
ENEX RESOURCES CORPORATION
1221 LAMAR STREET, SUITE 1020
HOUSTON, TEXAS 77010
(713) 759-6808
---------------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held on , 1998
---------------------
Notice is hereby given that a special meeting of the stockholders (the
"Special Meeting") of Enex Resources Corporation, a Delaware corporation
("Enex") will be held on , 1998 at 10:00 a.m. Central Daylight Time
at 1221 Lamar Street, Suite 1020, Houston, Texas, 77010, for the purpose of
considering and voting upon the following matters:
(1) A proposal to approve and adopt an Agreement and Plan of Merger
dated as of June 17, 1998 (the "Merger Agreement") between Enex and Middle
Bay Oil Company, Inc., an Alabama corporation ("Middle Bay"), pursuant to
which, among other things, Enex will be merged with and into Middle Bay
(the "Merger"), and each share (other than shares held by Middle Bay or
shares as to which appraisal rights have been perfected and not withdrawn)
of the common stock of Enex (the "Enex Common Stock") will be converted
into the right to receive shares of common stock of Middle
Bay.
(2) Such other business as may properly come before the Special
Meeting and any postponements or adjournments thereof.
Holders of record of Enex Common Stock at the close of business on June 30,
1998 (the "Record Date") are entitled to notice of and to vote at the Special
Meeting and any adjournment thereof.
If the Merger Agreement proposed herein is approved by the holders of Enex
Common Stock at the Special Meeting and the Merger is effected by Enex and
Middle Bay, any stockholder of Enex who (i) delivers to Enex, before the taking
of the vote on the approval of the Merger Agreement, written notice of his
intent to demand payment for his shares if the Merger is effectuated, (ii) does
not vote his shares in favor of the Merger and (iii) otherwise complies with
Section 262 of the Delaware General Corporation Law ("Delaware Law") has or may
have the right to demand in writing from Middle Bay payment for such
stockholder's shares and an appraisal of the value thereof. Middle Bay and any
such stockholder shall in such case have the rights and duties and shall follow
the procedure set forth in Section 262 of Delaware Law regarding appraisal
rights.
Please fill in the appropriate blanks, sign, date and return the enclosed
proxy card, whether or not you plan to attend the Special Meeting. If you attend
the meeting and wish to vote in person, you may do so by withdrawing your proxy
prior to voting at the Special Meeting. Proxies may be revoked by (i) filing
with the Secretary of Enex at or before the taking of the vote at the Special
Meeting a written notice of revocation bearing a later date than the proxy, (ii)
duly executing a later-dated proxy relating to the same shares and delivering it
to the Secretary of Enex before the taking of the vote at the Special Meeting or
(iii) attending the Special Meeting and voting in person (although attendance at
the Special Meeting will not in and of itself constitute a revocation of a
proxy).
By Order of the Board of Directors
John J. Bassett, President
<PAGE> 5
PRELIMINARY COPY
[ENEX LETTERHEAD]
To Our Stockholders:
You are cordially invited to attend a special meeting of the stockholders
(the "Special Meeting") of Enex Resources Corporation ("Enex") to be held on
, 1998 at 10:00 a.m. Central Daylight Time at 1221 Lamar Street,
Suite 1020, Houston, Texas 77010.
At the Special Meeting, you will be asked to consider and vote upon a
proposal to approve an Agreement and Plan of Merger dated as of June 17, 1998
(the "Merger Agreement") between Enex and Middle Bay Oil Company, Inc., an
Alabama corporation ("Middle Bay"), pursuant to which Enex will be merged with
and into Middle Bay (the "Merger"), and each share of common stock of Enex (the
"Enex Common Stock") (other than shares held by Middle Bay or shares as to which
appraisal rights have been perfected and not withdrawn), will be converted into
the right to receive shares of common stock of Middle Bay (the
"Middle Bay Common Stock"). The Merger Agreement is described more thoroughly in
the attached Proxy Statement, which stockholders are urged to read carefully.
Your Board of Directors believes that the Merger is in the best interests
of Enex and its stockholders. Accordingly, your Board of Directors has
unanimously approved the Merger Agreement and recommends that holders of Enex
Common Stock vote FOR approval of the Merger Agreement.
All stockholders are invited to attend the meeting in person. The
affirmative vote of the holders of a majority of the issued and outstanding
shares of Enex Common Stock will be necessary for approval and adoption of the
Merger Agreement. Middle Bay currently owns approximately 79.2% of the issued
and outstanding Enex Common Stock and intends to vote such stock in favor of the
Merger. Accordingly, approval of the Merger Agreement by the stockholders is
assured.
Even if you plan to attend the Special Meeting in person, please complete,
sign and promptly return the enclosed proxy in the enclosed postage pre-paid
envelope. If you attend the Special Meeting, you may vote in person whether or
not you have previously returned your proxy.
Sincerely,
JOHN J. BASSETT
Chairman, President and Chief
Executive Officer
July , 1998
<PAGE> 6
PRELIMINARY COPY
MIDDLE BAY OIL COMPANY, INC.
PROSPECTUS
ENEX RESOURCES CORPORATION
PROXY STATEMENT
This Proxy Statement/Prospectus is being furnished to the holders as of
June 30, 1998 (the "Record Date") of common stock, $0.05 par value per share
(the "Enex Common Stock"), of Enex Resources Corporation, a Delaware corporation
("Enex"), in connection with the solicitation of proxies by Enex's Board of
Directors (the "Enex Board"), for use at a special meeting of stockholders of
Enex (the "Special Meeting") to be held on , 1998 at 10:00 a.m.
Central Daylight Time at 1221 Lamar Street, Suite 1020, Houston, Texas 77010,
and at any postponements or adjournments thereof. This Proxy
Statement/Prospectus and the accompanying Proxy Card are first being mailed to
stockholders of Enex on or about , 1998.
At the Special Meeting, holders of Enex Common Stock will be asked to
consider and vote upon a proposal to approve an Agreement and Plan of Merger
dated as of June 17, 1998 (the "Merger Agreement") between Enex and Middle Bay
Oil Company, Inc., an Alabama corporation ("Middle Bay") pursuant to which Enex
will be merged with and into Middle Bay (the "Merger"), and each share of Enex
Common Stock (other than shares held by Middle Bay and shares as to which
appraisal rights have been perfected and not waived) will be converted into the
right to receive shares of common stock, $0.02 par value per
share, of Middle Bay (the "Middle Bay Common Stock"). The Merger is described
more thoroughly in this Proxy Statement/Prospectus and in the documents attached
hereto which stockholders are urged to read carefully. The stockholders of Enex
will also consider and vote upon such other matters as may properly come before
the Special Meeting and any postponements or adjournments thereof.
See "Risk Factors" on page 7 for a discussion of certain considerations in
evaluating the Merger.
Under Delaware law, stockholders of Enex will have appraisal rights in
connection with the Merger. See "The Merger Appraisal Rights" and Appendix II.
In order to exercise such appraisal rights properly, and in addition to other
requirements of Delaware Law, a dissenting stockholder must refrain from voting
in favor of the Merger.
This Proxy Statement/Prospectus also constitutes a prospectus of Middle Bay
pursuant to the Securities Act of 1933 (the "Securities Act") with respect to
the issuance of up to shares of Middle Bay Common Stock that may
be issued in consideration of the Merger to the holders of Enex Common Stock.
Middle Bay will not issue fractional shares of Middle Bay Common Stock, but
instead will pay cash to any stockholder otherwise entitled to receive a
fractional share. See "Summary -- The Merger," "The Merger -- Procedure for
Exchange of Certificates" and Appendix I.
Middle Bay and Enex are both publicly traded on the NASDAQ Stock Market
("NASDAQ"). On July , 1998 the last reported bid price per share of Middle Bay
Common Stock was $ , and the last reported bid price for Enex Common
Stock was $ . See "Summary -- Market Value of Middle Bay Common Stock."
---------------------
THE SECURITIES OF MIDDLE BAY OFFERED IN CONNECTION WITH THE MERGER HAVE NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROXY
STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
The date of this Proxy Statement/Prospectus is , 1998.
<PAGE> 7
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
AVAILABLE INFORMATION....................................... ii
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. ii
FORWARD-LOOKING STATEMENTS.................................. iii
SUMMARY..................................................... 1
Comparative Per-Share Data................................ 6
RISK FACTORS................................................ 7
Integration of Middle Bay and Enex........................ 7
Competition, Markets and Regulation....................... 7
Dependence on Key Personnel............................... 7
Middle Bay Acquisition Growth Strategy, Integration of
Acquired Companies and Impact of Industry Consolidation
on Growth Strategy..................................... 7
Financial Constraints..................................... 8
Potential Federal Income Tax Consequences................. 8
THE ENEX SPECIAL MEETING.................................... 8
Time, Date and Place...................................... 8
Matters to be Considered at the Special Meeting........... 9
Voting and Record Date.................................... 9
Proxies................................................... 9
THE MERGER.................................................. 10
General................................................... 10
Effects of the Merger..................................... 10
Procedures for Exchange of Certificates................... 10
Background and Reasons for the Merger..................... 11
The Board's Approval of the Merger and Recommendation
Regarding the Merger................................... 12
Interests of Certain Persons in the Merger................ 12
NASDAQ Stock Market Listing............................... 12
Potential Delisting of Enex Common Stock from NASDAQ Stock
Market................................................. 13
Resale of Middle Bay Common Stock by Affiliates........... 13
Material Federal Income Tax Consequences of the Merger.... 13
Regulatory Approvals...................................... 14
Accounting Treatment...................................... 15
Appraisal Rights.......................................... 15
THE MERGER AGREEMENT........................................ 16
General................................................... 16
Closing; Effective Time................................... 16
Merger Consideration...................................... 16
Representations and Warranties............................ 17
Conduct of Business of Enex Prior to the Effective Time... 18
Acquisition Proposals..................................... 18
Conditions to Consummation of the Merger.................. 18
Termination............................................... 19
Amendments and Waivers.................................... 19
Expenses.................................................. 19
BUSINESS OF MIDDLE BAY...................................... 19
Business Development...................................... 19
Business Strategy......................................... 22
Acquisition Policy........................................ 22
Drilling Activities....................................... 23
Acquisitions and Mergers.................................. 24
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Company Financing......................................... 25
Competition, Markets and Regulation....................... 25
Employees................................................. 26
Real Estate Properties.................................... 26
Oil and Gas Properties.................................... 26
Louisiana Fee Mineral Acreage............................. 27
Productive Wells and Acreage.............................. 28
Production, Prices and Costs.............................. 28
Drilling Activities....................................... 29
Reserves.................................................. 29
Legal Proceedings......................................... 30
RECENT DEVELOPMENTS......................................... 31
BUSINESS OF ENEX............................................ 31
General................................................... 31
Competition............................................... 32
Marketing and Prices...................................... 32
Environmental and Conservation Regulation................. 32
Recent Tax Laws........................................... 33
Oil and Gas Properties.................................... 33
Property Acquisitions..................................... 34
Net Oil and Gas Production................................ 35
Oil and Gas Reserves...................................... 36
Drilling Activities....................................... 36
Current Activities........................................ 36
Offices................................................... 36
MANAGEMENT OF ENEX.......................................... 62
Executive Officers and Directors.......................... 62
Executive Compensation.................................... 62
COMPARATIVE RIGHTS OF STOCKHOLDERS OF MIDDLE BAY AND ENEX... 63
Special Vote Required for Certain Combinations............ 63
Vote Required for Corporate Transactions and Other
Matters................................................ 64
Disposition of Assets..................................... 64
Calling of Special Meetings............................... 64
Election of Directors..................................... 64
Quorum Requirements for Directors' Meetings............... 65
Enex Common Stock Purchase Rights......................... 65
SELECTED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
(UNAUDITED)............................................... 66
LEGAL MATTERS............................................... 71
EXPERTS..................................................... 71
ENEX STOCKHOLDERS' PROPOSALS................................ 72
MERGER AGREEMENT........................................Appendix I
DELAWARE DISSENTER'S RIGHTS............................Appendix II
</TABLE>
<PAGE> 9
AVAILABLE INFORMATION
Middle Bay and Enex are subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, file reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by Middle Bay and Enex with the
Commission can be inspected at the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street NW, Washington, D.C. 20549 and the
Regional Offices of the Commission at Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60621 and Seven World Trade Center, 13th Floor,
New York, New York 10048. Copies of such material of Middle Bay and Enex may be
obtained from the Public Reference Section of the Commission at Room 1024,
Judicial Plaza, 450 Fifth Street NW, Washington, D.C. 20549 at prescribed rates.
The Commission maintains an Internet Website at http://www.sec.gov that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. Such reports, proxy
statements and other information filed by Middle Bay and Enex may also be
inspected and copied at the offices of the NASDAQ Stock Market, 1735 K Street
NW, Washington, D.C. 20006 on which the Middle Bay and Enex Common Stock is
listed.
Middle Bay has filed with the Commission a registration statement on Form
S-4 under the Securities Act with respect to the securities offered hereby (the
"Registration Statement"). This Proxy Statement/ Prospectus, which constitutes a
part of the Registration Statement, does not contain all of the information
contained in the Registration Statement, certain portions of which are omitted
as permitted by the rules and regulations of the Commission. For further
information with respect to Middle Bay and the securities offered hereby,
reference is made to the Registration Statement, including the exhibits thereto,
which may be inspected at the Commission's offices, without charge, or copies of
which may be obtained from the Commission upon payment of prescribed fees.
Statements contained in this Proxy Statement/Prospectus as to the contents of
any document filed as an exhibit to the Registration Statement are not
necessarily complete, and in each instance, reference is hereby made to the copy
of such document filed as an exhibit to the Registration Statement for a more
complete description of the matter involved, and each such statement is
qualified in its entirety by such reference. All information herein with respect
to Middle Bay and its affiliates has been furnished by Middle Bay, and all
information herein with respect to Enex and its affiliates has been furnished by
Enex.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by Middle Bay with the SEC
pursuant to the Exchange Act, are hereby incorporated by reference, except as
superseded or modified herein: (i) annual report on Form 10-KSB for the fiscal
year ended December 31, 1997, as amended on Form 10-KSB/A; (ii) quarterly report
on Form 10-QSB for the quarter ended March 31, 1998; (iii) current reports on
Forms 8-K filed on February 11, 1998 and May 6, 1998; (iv) proxy statement on
Schedule 14A for the annual meeting of stockholders held June 18, 1998; and (v)
the description of Common Stock set forth in Middle Bay's Registration Statement
pursuant to the Exchange Act, and any amendment or report filed for the purpose
of updating any such description.
The following documents, heretofore filed by Enex with the SEC pursuant to
the Exchange Act, are hereby incorporated by reference, except as superseded or
modified herein: (i) annual report on Form 10-KSB for the fiscal year ended
December 31, 1997; (ii) quarterly report on Form 10-QSB for the quarter ended
March 31, 1998; (iii) current reports on Forms 8-K dated September 4, 1990 and
April 12, 1994; and (iv) any amendment or report filed for the purpose of
updating any such reports.
All documents and reports filed by Middle Bay or Enex with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Proxy Statement/Prospectus and prior to the date of consummation of the
transaction shall be deemed to be incorporated by reference in this Proxy
Statement/ Prospectus and to be a part hereof from the dates of filing of such
document or reports. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Proxy Statement/Prospectus to the extent that a
statement
ii
<PAGE> 10
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Proxy
Statement/Prospectus.
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. SUCH DOCUMENTS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS, UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED
BY REFERENCE TO SUCH DOCUMENTS) ARE AVAILABLE, WITHOUT CHARGE, TO ANY PERSON TO
WHOM THIS PROXY STATEMENT/PROSPECTUS IS DELIVERED, ON WRITTEN OR ORAL REQUEST
TO: MIDDLE BAY OIL COMPANY, INC., 1221 LAMAR STREET, SUITE 1020, HOUSTON, TEXAS
77010, ATTENTION: CORPORATE SECRETARY; TELEPHONE (713) 759-6808. IN ORDER TO
ENSURE DELIVERY OF THE DOCUMENTS PRIOR TO THE MERGER, REQUESTS MUST BE RECEIVED
BY , 1998.
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given or
made, such information or representations must not be relied upon as having been
authorized by Middle Bay or its affiliates. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to purchase, the securities
offered by this Prospectus or the solicitation of a tender from any person in
any jurisdiction in which it is unlawful to make such offer, solicitation of an
offer or tender solicitation. Neither the delivery of this Prospectus nor any
distribution of the securities made under this Prospectus shall, under any
circumstances, create an implication that there has been no change in the
affairs of Middle Bay or the Partnership since the date of this Prospectus,
other than as set forth in the documents incorporated herein by reference.
FORWARD-LOOKING STATEMENTS
This Proxy Statement/Prospectus contains certain forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995 with
respect to the financial condition, results of operations and businesses of
Middle Bay and Enex. Statements in this document which are not historical facts
are hereby identified as "forward-looking statements" for the purpose of the
safe harbor provided by Section 21E of the Exchange Act and Section 27A of the
Securities Act. Middle Bay cautions the reader that such "forward-looking
statements," including without limitation those relating to Middle Bay's and
Enex's future business prospects, revenues, working capital, liquidity and
capital needs and the possible impact of current and future claims against
either company based on negligence and other theories of liability, and
regarding Middle Bay's cost controls and reductions, resolution of billing
delays and the possibility of making additional acquisitions, wherever they
occur in this document, are necessarily estimates reflecting the best judgment
of Middle Bay's and Enex's senior management and involve a number of risks and
uncertainties that could cause actual results to differ materially from those
suggested by the "forward-looking statements," including the possibilities that
the demand for oil and gas may decline as a result of possible changes in
general and industry specific economic conditions and the effect of competitive
services and pricing, the risk that one or more current or future claims made
against either company could result in substantial liabilities and the risk of
failure of Middle Bay to integrate effectively the businesses of Enex. Such
"forward-looking statements" should, therefore, be considered in light of
various important factors, including those set forth in this Proxy State-
ment/Prospectus.
The words "estimate," "project," "intend," "expect" and similar expressions
are intended to identify forward-looking statements. These "forward-looking
statements" are found at various places throughout this document. The reader is
cautioned not to place undue reliance on forward-looking statements included
herein and to read carefully the discussion of risks set forth under the heading
"Risk Factors" for an understanding of the types of risks that may cause results
to differ from those projected herein.
iii
<PAGE> 11
No person has been authorized to give any information or to make any
representations other than those contained in this Proxy Statement/Prospectus,
and, if given or made, such information or representations must not be relied
upon as having been authorized by Middle Bay, Enex or their respective
affiliates. This Proxy Statement/Prospectus does not constitute an offer to
exchange or sell, or a solicitation of an offer to exchange or purchase, any
securities other than the Middle Bay Common Stock offered hereby, nor does it
constitute an offer to exchange or sell or a solicitation of an offer to
exchange or purchase such securities in any state or other jurisdiction to any
person to whom such an offer or solicitation would be unlawful.
iv
<PAGE> 12
SUMMARY
The following is a brief summary of information contained elsewhere in this
Proxy Statement/ Prospectus. This summary is not a complete statement of all
information, facts or materials relating to a stockholder's decision with
respect to the matters to be voted on at the Special Meeting. This summary
should only be read in conjunction with, and is qualified in its entirety by
reference to, the more detailed information contained in this Proxy
Statement/Prospectus and the Appendices hereto. Unless otherwise defined,
capitalized terms used in this summary have the respective meanings ascribed to
them elsewhere in this Proxy Statement/ Prospectus. Stockholders are urged to
review carefully this Proxy Statement/Prospectus and the Appendices hereto in
their entirety.
The Merger................. This Proxy Statement/Prospectus relates to a
proposal to approve an Agreement and Plan of
Merger dated as of , 1998 (the
"Merger Agreement") between Enex and Middle Bay
pursuant to which Enex will be merged into Middle
Bay. Upon consummation of the Merger, each
outstanding share of Enex Common Stock (other
than shares held by Middle Bay or shares as to
which appraisal rights have been perfected and
not withdrawn) will be converted into the right
to receive shares of Middle Bay
Common Stock. The Merger Agreement is attached to
this Proxy Statement/Prospectus as Appendix I,
and any summary contained herein of the terms of
the Merger Agreement is qualified in its entirety
by reference to the Merger Agreement.
Enex....................... Enex, a Delaware corporation, is engaged in the
business of acquiring interests in producing oil
and gas properties and managing oil and gas
income limited partnerships. Enex operates wells
in several states, with a major emphasis in
Texas. In addition to the wells it operates for
its own account, Enex manages interests in over
12,000 oil and gas wells owned by a partnership
in which Enex is general partner. Enex's
principal executive offices are maintained at 800
Rockmead Drive, Three Kingwood Place, Kingwood,
Texas 77339. The telephone number at this office
is (281) 358-8401.
Middle Bay................. Middle Bay, an Alabama corporation, is an
independent oil and gas company engaged in the
exploration, development and production of oil
and gas in the contiguous United States. Middle
Bay's strategy focuses on increasing its reserves
of crude oil and natural gas by the acquisition
and development of proved oil and gas properties
primarily in the Mid-Continent and Gulf Coast
regions. Middle Bay believes the current period
reflects historically low market prices for oil
and gas and is focusing its efforts on increasing
reserves so that it will be well positioned to
benefit in the event of any future increases in
demand for natural gas and oil. Consistent with
these efforts, Middle Bay is participating on a
limited basis in drilling and development
activities in other geographic regions of the
contiguous United States. Middle Bay's principal
executive offices are located at 1221 Lamar
Street, Suite 1020, Houston, Texas 77010. The
Company's mailing address is P.O. Box 53448,
Houston, Texas 77052-3448. Its telephone number
is (713) 759-6808. Middle Bay maintains a
regional office at 9320 East Central, Wichita,
Kansas 67206, and its telephone number there is
(316) 636-1801.
1
<PAGE> 13
Time, Date and Place of the
Special Meeting.......... The Special Meeting will be held at the offices of
Middle Bay located at 1221 Lamar Street, Suite
1020, Houston, Texas 77010, on ,
1998, commencing at 10:00 a.m. Central Daylight
Time.
Matters to be Considered at
the Special Meeting........ At the Special Meeting, the stockholders of Enex
will be asked to consider and vote upon a
proposal to approve the Merger Agreement and the
transactions contemplated thereby and such other
business as may properly come before the meeting
and any postponements or adjournments thereof.
Record Date................ Holders of record of shares of Enex Common Stock at
the close of business on June 30, 1998 are
entitled to notice of, and to vote at, the
Special Meeting.
Voting..................... Under the laws of the State of Delaware, the
affirmative vote of the holders of a majority of
the shares of Enex Common Stock issued and
outstanding on the Record Date is required to
authorize the Merger Agreement. See "The Enex
Special Meeting -- Voting and Record Date."
Enex is seeking approval of the Merger Agreement
under the laws of the State of Delaware. Under
the laws of the State of Delaware, absent either
failure of Enex to comply with procedural
requirements of such law or its certificate of
incorporation or bylaws or the obtaining of a
vote in favor of the Merger Agreement by fraud or
deceptive means (in which case other remedies are
available), the exclusive remedy of any
stockholder desiring to challenge the Merger
Agreement is the exercise of appraisal rights. A
stockholder may vote in favor of or against the
Merger Agreement or abstain from voting. An
abstention counts as a "no" vote with respect to
approval of the Merger Agreement and does not
prohibit a stockholder who otherwise complies
with the applicable legal requirements from
exercising appraisal rights. Enex intends to use
this exclusive remedy defense against any
challenges to the Merger Agreement or the
corporate action giving rise to it.
Middle Bay holds approximately 79.2% of the issued
and outstanding Enex Common Stock and intends to
vote such stock in favor of the Merger Agreement.
Consequently, approval of the Merger Agreement is
assured. See "The Merger Agreement -- Voting."
Effects of the Merger...... Upon consummation of the Merger, Enex will merge
with and into Middle Bay, and the surviving
corporation of such merger will be Middle Bay.
Each share of Enex Common Stock outstanding
immediately prior to the Effective Time (other
than shares held by Middle Bay or shares as to
which appraisal rights have been perfected and
not withdrawn) will be converted into the right
to receive shares of Middle Bay
Common Stock. See "The Merger -- Effects of the
Merger."
Procedures for Exchange of
Certificates............. Promptly after the Effective Time as defined
herein, a letter of transmittal and instructions
for surrendering stock certificates evidencing
shares of Enex Common Stock will be mailed to
each holder of Enex
2
<PAGE> 14
Common Stock for use in exchanging such holder's
stock certificates for the Middle Bay Common
Stock and cash in lieu of fractional shares (the
"Merger Consideration") to which each holder is
entitled as a result of the Merger. STOCKHOLDERS
SHOULD NOT SEND ANY STOCK CERTIFICATES WITH THEIR
PROXY CARDS. See "The Merger -- Procedures for
Exchange of Certificates."
Background and Reasons for
the Merger................. On February 19, 1998, Middle Bay made a cash tender
offer for all shares of Enex common stock
outstanding at a net price of $15.00 per share
(the "Tender Offer"). The Tender Offer was
successfully closed on March 20, 1998, with
1,064,032 shares of Enex Common Stock (79.2% of
the total outstanding shares of Enex Common
Stock) having been tendered and accepted by
Middle Bay. At the closing of the Tender Offer,
the then members of the Board of Directors of
Enex resigned and were replaced by persons who
also comprise the Board of Directors of Middle
Bay. The primary reasons for the Merger are to
complete the acquisition of Enex by Middle Bay in
order to fully integrate Enex's operations with
Middle Bay's. Middle Bay management also believes
that the Merger will simplify Middle Bay's
corporate structure, promote operating
efficiencies and reduce general and
administrative expenses.
Recommendation of the Board
of Directors............... The Board of Directors of Enex (the "Board") has
unanimously approved the Merger Agreement and
recommends to Enex's stockholders that they vote
FOR its approval. The Board has determined that
the Merger represents an attractive opportunity
for the stockholders to exchange potentially
illiquid shares of Enex Common Stock for freely
tradeable shares of Middle Bay at a fair
conversion value and to participate directly in
the anticipated growth of Middle Bay as Middle
Bay shareholders. See "The Merger -- The Board's
Approval of the Merger and Recommendation
Regarding the Merger."
Regulatory Approvals....... No governmental approvals are required with respect
to the Merger, except for the filing of the
Certificate of Merger with the Delaware Secretary
of State and the Alabama Secretary of State.
Accounting Treatment....... Middle Bay accounted for its acquisition of 79.2%
of the issued and outstanding Enex Common Stock
under the purchase method of accounting. The
Merger constitutes an acquisition of minority
interests and will also be accounted for under
the purchase method of accounting. As a result,
the total consideration paid by Middle Bay for
its interests in Enex will be allocated to the
assets and liabilities of Enex based on the fair
value of the assets and liabilities acquired.
Material Income Tax
Consequences............. If, as expected, the Merger does not qualify for
tax-free reorganization status, Enex stockholders
(other than Middle Bay) will recognize gain or
loss upon the exchange of their Enex Common Stock
for Middle Bay Common Stock. Further, the
transaction may be taxable to Middle Bay and to
Enex. In any case, the Merger is expected to be
fully taxable to Enex stockholders, including
those who exchange their Enex Common Stock for
Middle Bay Common Stock, as well as those
3
<PAGE> 15
who perfect their appraisal rights and receive
cash in exchange for their Enex Common Stock. See
"The Merger -- General" and "Material Federal
Income Tax Consequences of the Merger."
Appraisal Rights........... All stockholders of Enex on the Record Date will be
entitled to exercise appraisal rights in
accordance with Delaware law with respect to the
Merger. A stockholder wishing to exercise
appraisal rights must file a notice with Enex
before the taking of the vote on the approval of
the Merger Agreement, must not vote in favor of
the Merger (i.e., vote "no" or abstain from
voting) and must comply with all other provisions
of Delaware law necessary for the perfection of
appraisal rights. See "The Merger -- Appraisal
Rights."
The Merger Agreement --
General.................. Upon the terms and subject to the conditions of the
Merger Agreement, Enex will merge with and into
Middle Bay as of the Effective Time. The economic
effective date for purposes of the Merger
Agreement is July 1, 1998. Upon consummation of
the Merger, Middle Bay will be the surviving
corporation, and the stockholders of Enex will
receive the Merger Consideration described
herein. See "The Merger -- General" and "Material
Federal Income Tax Consequences of the Merger."
Effective Time............. The effective time of the Merger (the "Effective
Time") will occur upon the filing of a
Certificate of Merger with the Secretary of State
of Delaware and acceptance thereof by such
Secretary of State or such later date as may be
specified in such certificate. It is anticipated
that such certificate will be filed promptly
after the Special Meeting. See "The Merger
Agreement -- Closing; Effective Time."
Merger Consideration....... In consideration for the Merger, Middle Bay will
issue shares of Middle Bay Common
Stock in exchange for each share of Enex Common
Stock (other than shares held by Middle Bay and
shares as to which appraisal rights have been
perfected and not withdrawn). This ratio is
intended by Middle Bay to represent approximately
a $15 value (based on the market value of Middle
Bay Common Stock) for each share of Enex Common
Stock. In lieu of issuing fractional shares of
Middle Bay Common Stock, Middle Bay will pay cash
to any stockholder otherwise entitled to receive
a fractional share, in an amount equal to the
fair market value of such fractional share.
Conditions to and
Termination of the
Merger................... The consummation of the Merger is subject to a
number of conditions and the Merger Agreement may
be terminated by either party upon the occurrence
or failure to occur of certain events. See "The
Merger Agreement -- Conditions to Consummation of
the Merger" and "Termination."
Market Value of Middle Bay
Common Stock............. Middle Bay Common Stock is traded on the NASDAQ
Small Cap Stock Market under the symbol "MBOC."
As of May 31, 1998, a total of 8,530,591 shares
of Middle Bay Common Stock were issued and
outstanding. The following table sets forth the
actual high and low closing sale prices for the
Middle Bay Common Stock for the periods
indicated.
4
<PAGE> 16
<TABLE>
<CAPTION>
MIDDLE BAY
COMMON
STOCK
-----------
PERIOD HIGH LOW
------ ---- ---
<S> <C> <C>
Fiscal Year Ending December 31, 1998:
First Quarter (March 31)....................... $10 $5 3/4
Fiscal Year Ended December 31, 1997:
Fourth Quarter................................. 11 1/8 9 3/4
Third Quarter.................................. 11 1/4 9
Second Quarter................................. 12 7 3/4
First Quarter.................................. 9 5 1/2
Fiscal Year Ended December 31, 1996:
Fourth Quarter................................. 5 3/4 3
Third Quarter.................................. 4 2 1/2
Second Quarter................................. 3 3/8 2 1/2
First Quarter.................................. 3 1/4 2 3/4
</TABLE>
On March 27, 1998, the last trading day prior to
the announcement by Middle Bay that it had
purchased a controlling interest in Enex, the
closing sale price of Middle Bay Common Stock as
reported on the NASDAQ Stock Market was $7.25 per
share. On July , 1998, the closing sale price
of Middle Bay Common Stock as reported on the
NASDAQ Stock Market was $ per share. The
number of recordholders of Middle Bay Common
Stock as of May 31, 1998 was approximately 1,000.
Market for Enex Common
Stock...................... Enex is a reporting company under the Exchange Act,
and its common stock is publicly traded on the
NASDAQ Stock Market National Market System under
the symbol "ENEX." There has not been an active
public trading market for Enex Common Stock since
the closing of the Tender Offer, and trades in
the stock are sporadic, constituting on average
fewer than four trades per week. Holders of
record of Enex Common Stock as of May 31, 1998
was 596. Because of the small number of holders
of record thereof and low numbers of publicly
held shares, Enex Common Stock may no longer be
eligible for trading on the NASDAQ Stock Market.
Dividends.................. No cash dividends have been paid by Middle Bay on
its common stock since it began public trading of
its stock in 1995. The Board of Directors of
Middle Bay presently intends to retain any future
earnings for use in Middle Bay's business and
does not anticipate paying cash dividends in the
foreseeable future. Under the terms of Middle
Bay's revolving line of credit, approval will be
required from Middle Bay's primary bank for the
payment of any dividends. Enex has paid dividends
on its common stock of $.20 per share in 1994 and
1995, $.25 in 1996 and $.40 in 1997. The present
Enex Board of Directors intends to retain any
future earnings and does not anticipate paying
cash dividends in 1998.
Risk Factors............... Ownership of Middle Bay Common Stock involves
certain risks. In considering how to vote with
respect to the Merger Agreement, holders of Enex
Common Stock should carefully examine the "Risk
Factors" section of this Proxy
Statement/Prospectus, as well as other
5
<PAGE> 17
pertinent information set forth in this Proxy
Statement/Prospectus. See "Risk Factors."
COMPARATIVE PER-SHARE DATA
Set forth below are earnings and book value per share data of Middle Bay on
an historical and unaudited pro forma per share basis and of Enex on an
historical per share basis. The Middle Bay unaudited pro forma combined data was
derived by combining financial information of Middle Bay and Enex after giving
effect to the Merger under the purchase method of accounting.
The information set forth below should be read in conjunction with the
respective historical audited and unaudited financial statements of Middle Bay
and Enex and the respective notes thereto and with the unaudited pro forma
consolidated financial information and the related notes thereto, which appear
elsewhere in this Proxy Statement/Prospectus or are incorporated by reference
herein.
The following information is not necessarily indicative of the combined
results of operations or combined financial position that would have resulted
had the Merger been consummated at the beginning of the periods indicated, nor
is it necessarily indicative of the future combined results of operations or
financial position.
<TABLE>
<CAPTION>
FISCAL YEAR THREE MONTHS
ENDED ENDED
DECEMBER 31, 1997 MARCH 31, 1998
----------------- --------------
(UNAUDITED)
<S> <C> <C>
Basic Earnings (Loss) Per Share:
Middle Bay
Historical............................................. $(4.76) $(0.22)
Unaudited Pro-Forma.................................... (3.26) (0.33)
Enex
Historical............................................. 1.45 (0.32)
Book Value Per Common Share:
Middle Bay
Historical............................................. 1.39 1.89
Unaudited Pro-Forma.................................... 2.06 2.26
Enex
Historical............................................. 10.04 9.71
</TABLE>
6
<PAGE> 18
RISK FACTORS
INTEGRATION OF MIDDLE BAY AND ENEX
Although Middle Bay management has not encountered any and does not foresee
future material difficulties in assuming operational control of Enex's business,
there can be no assurance that Middle Bay will be able to integrate fully and
successfully the operations, facilities and management of Enex or realize any
benefits of the Merger. Additionally, there can be no assurance that the Merger
will not have an adverse effect on ongoing business relationships of Enex.
Failure to successfully integrate the businesses of Enex with Middle Bay could
have a material adverse effect on Middle Bay's results and operations and
financial condition.
COMPETITION, MARKETS AND REGULATION
Competition in the oil and gas exploration and property acquisition markets
is intense. In seeking to obtain desirable leases and exploration prospects,
Middle Bay faces competition from both major and independent oil and gas
companies, as well as from numerous individuals. Many of these competitors have
substantial financial resources available to them, which may give such
competitors an advantage.
The ability of Middle Bay to market oil and gas from its wells will depend
upon numerous factors beyond its control, including, but not limited to, the
extent of domestic production and imports of oil and gas, the proximity of
Middle Bay's production to existing pipelines, the availability of capacity in
such pipelines and state and federal regulation of oil and gas production. There
is no assurance that Middle Bay will be able to market all of the oil or gas
produced by it or that favorable prices can be obtained for the oil and gas it
produces. In view of the uncertainties affecting the supply and demand of oil
and gas, Middle Bay is unable to accurately predict future oil and gas prices
and demand, or the overall effect they will have on Middle Bay.
Numerous federal and state laws and regulations affect Middle Bay's
operations. In particular, oil and gas production operations are affected by tax
and other laws relating to the petroleum industry and any changes in such laws
and regulations. Some of the rules and regulations carry substantial penalties
for failing to comply. The regulatory burden on the oil and gas industry
increases Middle Bay's cost of doing business. Middle Bay's activities are also
subject to numerous federal, state and local environmental laws and regulations
governing the discharge of materials. In most cases, the applicable regulatory
requirements relate to water and air pollution control or solid waste management
measures. Management believes the recent trend toward stricter standards in
environmental legislation, regulation and enforcement will continue. To date,
these laws have not had a significant impact on Middle Bay, but no assurance can
be given as to the effect of these laws on Middle Bay in the future.
DEPENDENCE ON KEY PERSONNEL
Middle Bay's business is managed by a small number of management and
operating personnel, the loss of certain of whom could have a material adverse
effect on Middle Bay. Middle Bay believes that its ability to manage its planned
growth successfully will depend in large part on its continued ability to
attract and retain highly skilled and qualified personnel.
MIDDLE BAY ACQUISITION GROWTH STRATEGY, INTEGRATION OF ACQUIRED COMPANIES AND
IMPACT OF INDUSTRY CONSOLIDATION ON GROWTH STRATEGY
A significant component of Middle Bay's growth strategy is the expansion of
Middle Bay through acquisitions, such as the acquisition of Enex described
herein. Middle Bay believes that its current financial resources and the
availability of Middle Bay's Common Stock and the authorized, but unissued
preferred stock of Middle Bay will enable it to consider additional
acquisitions, some of which may be larger than the currently proposed
acquisition. Although additional acquisitions may enhance the opportunity of
Middle Bay to increase cash flow and net income over time, such acquisitions
will present greater administrative burdens, increased exposure to uncertainties
inherent in acquisitions, the financial risks of additional operating costs and
potential additional interest costs. Middle Bay may also need to obtain
additional equity or debt financing in order to complete such acquisitions.
There can be no assurance that Middle Bay will be able to conclude any
7
<PAGE> 19
acquisitions in the future on terms favorable to it or that, once consummated,
such acquisitions will be advantageous to Middle Bay.
Middle Bay's future success is dependent upon its ability to effectively
integrate acquired businesses into Middle Bay, including its ability to
implement potentially available cost-saving opportunities. The financial
performance of Middle Bay is and will be subject to various risks associated
with the acquisition of businesses, if additional acquisitions are completed,
including the financial impact of expenses and potential disruptions associated
with the integration of businesses. In addition, the diversion of senior
management's attention during the integration process could have an adverse
effect on Middle Bay's operations. There can be no assurance that future
acquisitions will not have an adverse effect upon Middle Bay's operating
results, particularly during the periods in which the operations of acquired
businesses are being integrated into Middle Bay's operations.
The oil and gas industry is currently experiencing a trend of
consolidation. As a result, Middle Bay expects to face increasing competition in
bidding for future acquisition targets, including increased competition from
companies with larger resources available to complete such acquisitions than are
available to Middle Bay. As a result, Middle Bay's strategy of growth through
acquisitions may be more difficult to achieve as consolidation continues. As a
result, the diversion of senior management's attention to Middle Bay's
acquisition strategy may increase as competition for additional acquisitions
increases. There can be no assurance that Middle Bay will be successful in
future bids for acquisition targets.
FINANCIAL CONSTRAINTS
In 1998, Middle Bay increased its outstanding debt but currently has
limited additional borrowing capacity under its revolving line of credit with
Compass Bank and Bank of Oklahoma, N.A. due to recent acquisitions. Many of the
companies with which Middle Bay competes for customers and for acquisition
opportunities are larger and have greater resources than Middle Bay and, in
particular, have greater amounts of cash and greater borrowing capacity. Should
Middle Bay be unable to access additional capital, its growth strategy could be
adversely impacted by restrictions in its ability to complete additional
acquisitions.
POTENTIAL FEDERAL INCOME TAX CONSEQUENCES
The Merger is not expected to qualify as a tax-free reorganization. The
Enex stockholders are, therefore, expected to recognize a gain or loss upon the
exchange of their Enex Common Stock for Middle Bay Common Stock for federal
income tax purposes. In addition, as described more fully under "The
Merger -- General" and "Material Federal Income Tax Consequences of the Merger,"
the transaction is expected to be taxable to Middle Bay and to Enex. Further,
regardless of whether the Merger were to qualify for tax-free reorganization
status, Enex stockholders who perfect appraisal rights will recognize gain or
loss for federal income tax purposes upon exchange of their Enex Common Stock
for cash. Enex shareholders are urged to consult with their own respective tax
advisors in light of their particular circumstances regarding the potential
income tax consequences of the Merger.
THE ENEX SPECIAL MEETING
TIME, DATE AND PLACE
This Proxy Statement/Prospectus is being furnished to the holders of Enex
Common Stock as of the Record Date in connection with the solicitation of
proxies by the Enex Board for use at the Special Meeting to be held on
, 1998 at 10:00 a.m. Central Daylight Time and at 1221 Lamar Street,
Suite 1020, Houston, Texas 77010, and at any postponements or adjournments
thereof.
8
<PAGE> 20
MATTERS TO BE CONSIDERED AT THE SPECIAL MEETING
At the Special Meeting, the holders of Enex Common Stock will be asked to
consider and vote upon (i) the Merger Agreement and the transactions
contemplated thereby, and (ii) such other business as may properly come before
the Special Meeting and any postponements or adjournments thereof.
VOTING AND RECORD DATE
The Board has fixed , 1998 (the "Record Date") as the Record
Date for determining holders of Enex Common Stock of record entitled to receive
notice of and to vote at the Special Meeting. Accordingly, only holders of
record of Enex Common Stock who are holders as of the Record Date will be
entitled to notice of and to vote at the Special Meeting. As of the Record Date,
there were 1,343,352 shares of Enex Common Stock outstanding and entitled to
vote.
Each holder of record of Enex Common Stock on the Record Date is entitled
to cast one vote per share, exercisable in person or by a properly executed
proxy, with respect to the approval of the Merger Agreement and any other
matters to be submitted to a vote of stockholders at the Special Meeting. Middle
Bay, as the holder of 1,064,032 shares of Enex Common Stock, is entitled to
1,064,032 votes out of 1,343,352, or 79.2% of the voting power of Enex Common
Stock.
The presence at the Special Meeting, in person or by a proxy, of the
holders of a majority of the shares of Enex Common Stock outstanding on the
Record Date will constitute a quorum at the Special Meeting. Votes cast by proxy
or in person at the Special Meeting will be counted by the persons appointed by
Enex to act as the inspectors for the meeting. Shares represented by proxies
that reflect abstentions or include "broker non-votes" will be treated as shares
that are present and entitled to vote for purposes of determining the presence
of a quorum. Under the laws of the State of Delaware, the affirmative vote of a
majority of the shares of Enex Common Stock issued and outstanding on the Record
Date is required to authorize the Merger. Abstentions and "broker non-votes"
will be included in the calculation for purposes of determining whether the
Merger Agreement has been approved and will be treated as "no" votes.
The Board has unanimously approved the Merger Agreement and recommends a
vote FOR the approval of the Merger Agreement. Enex is seeking stockholder
approval of the Merger Agreement. Middle Bay owns approximately 79.2% of the
outstanding Enex Common Stock and intends to vote such stock in favor of the
Merger Agreement. Therefore, approval of the Merger Agreement by the
stockholders of Enex is assured. See "Principal Stockholders of Enex."
PROXIES
All shares of Enex Common Stock which are represented at the Special
Meeting by properly executed proxies received prior to or at the Special Meeting
and not duly and timely revoked will be voted at the Special Meeting in
accordance with the choices marked thereon by the stockholders. If no choice is
marked, the shares will be voted FOR approval of the Merger Agreement.
At the time this Proxy Statement/Prospectus was filed with the Commission,
the Board was not aware of any other matters not referred to herein that would
be presented for action at the Special Meeting. If any other matters properly
come before the Special Meeting, the persons designated in the proxy will vote
the shares represented thereby in accordance with their best judgment.
Any proxy given pursuant to this solicitation may be revoked by the person
giving it at any time before it is voted. Proxies may be revoked by (i) filing
with the Secretary of Enex at or before the taking of the vote at the Special
Meeting a written notice of revocation bearing a later date than the proxy, (ii)
duly executing a later-dated proxy relating to the same shares and delivering it
to the Secretary of Enex before the taking of the vote at the Special Meeting or
(iii) attending the Special Meeting and voting in person (although attendance at
the Special Meeting will not in and of itself constitute a revocation of a
proxy). Any proxy revoked in writing should be addressed to: Kelly Green,
Assistant Secretary, Enex Resources Corporation, 800 Rockmead Drive, Three
Kingwood Place, Kingwood, Texas 77339.
9
<PAGE> 21
All expenses of this solicitation, including the cost of preparing and
mailing this Proxy Statement/ Prospectus, will be borne by Enex and Middle Bay
jointly. In addition to solicitation by mail, arrangements will be made with
brokers and other custodians, nominees and fiduciaries to forward proxy
solicitation materials to beneficial owners of shares of Enex Common Stock held
of record by such brokers, custodians, nominees and fiduciaries, and Enex may
reimburse such brokers, custodians, nominees and fiduciaries for their
reasonable expenses incurred in connection therewith. Directors and employees of
Enex may also solicit proxies in person or by telephone without receiving any
compensation in addition to their regular compensation as directors and
employees.
THE MERGER
GENERAL
The following information sets forth the material terms of the Merger and
is qualified in its entirety by reference to more detailed information contained
elsewhere in this Proxy Statement/Prospectus, including the Appendices hereto. A
copy of the Merger Agreement is included as Appendix I and is incorporated
herein by reference. The stockholders of Enex are urged to read the Merger
Agreement carefully.
EFFECTS OF THE MERGER
At the Effective Time, Enex will be merged with and into Middle Bay, and
the separate existence of Enex will cease. Middle Bay will be the surviving
corporation (the "Surviving Corporation") in the Merger and will continue to
exist as Middle Bay Oil Company, Inc. At the Effective Time, each share of Enex
Common Stock then issued and outstanding (other than shares held by Middle Bay
and shares as to which the holder perfects appraisal rights in accordance with
Delaware law) will be converted into the right to receive shares of Middle
Bay Common Stock. As of the Record Date, there were 1,343,352 shares of Enex
Common Stock outstanding, of which 1,064,032 shares were held by Middle Bay.
Enex has no other class of stock currently issued or outstanding. See
"Background and Reasons for the Merger." Upon consummation of the Merger,
holders of Enex Common Stock, excluding Middle Bay, would be entitled to
receive, in the aggregate, approximately shares of Middle Bay Common Stock.
Each certificate representing Enex Common Stock prior to the Merger (other
than certificates held by Middle Bay and certificates representing shares as to
which the holder has perfected appraisal rights) will thereafter represent only
the right to receive the Merger Consideration. For a description of the
procedures for exchanging certificates representing Enex Common Stock, see
"Procedures for Exchange of Certificates." Each share of Enex Common Stock held
by Middle Bay prior to the Merger will be canceled, and no payment will be made
with respect thereto in connection with the Merger.
Pursuant to the Merger, at the Effective Time, all the properties, rights,
privileges, powers and franchises of Enex shall vest in Middle Bay, and all
debts, liabilities and duties of Enex shall become the debts, liabilities and
duties of Middle Bay.
PROCEDURES FOR EXCHANGE OF CERTIFICATES
As of the Effective Time, a bank or trust company designated by Middle Bay
shall act as exchange agent (the "Exchange Agent") in effecting the exchange for
the Merger Consideration of certificates that, immediately prior to the
Effective Time, represented shares of Enex Common Stock entitled to payment
pursuant to the Merger Agreement.
Promptly after the Effective Time, the Exchange Agent will mail to each
holder of record (other than Middle Bay and holders of Enex Common Stock who
have properly demanded and perfected appraisal rights under Delaware General
Corporation Law) of a certificate which immediately prior to the Effective Time
represented outstanding Enex Common Stock, a notice advising the holder of the
effectiveness of the Merger accompanied by a letter of transmittal in customary
form (the "Letter of Transmittal"). The Letter of Transmittal will contain
instructions with respect to the surrender of certificates representing Enex
Common
10
<PAGE> 22
Stock for Merger Consideration in connection with the Merger and will specify
that delivery will be effected, and risk of loss and title to such certificates
will pass, only upon delivery of the certificates to the Exchange Agent.
Upon surrender to the Exchange Agent of certificates representing Enex
Common Stock in accordance with the instructions contained in the Letter of
Transmittal, the holder thereof will be entitled to receive in exchange therefor
shares of Middle Bay Common Stock and cash in lieu of fractional shares to which
such holder is entitled pursuant to the Merger Agreement. The stock certificates
so surrendered will forthwith be canceled. In the event of a transfer of
ownership of Enex Common Stock which is not registered in the stock transfer
records of Enex, it shall be a condition to such exchange that a certificate
representing the proper number of shares of Enex Common Stock be presented by
the transferee to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered, each certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive the Merger Consideration upon surrender of the certificate. Enex
stockholders should not submit their certificates evidencing shares of Enex
Common Stock for exchange unless and until the transmittal instructions and a
Letter of Transmittal are received or obtained from the Exchange Agent.
Any Enex stockholder who has lost or misplaced a certificate representing
shares of Enex Common Stock must deliver to the Exchange Agent an affidavit of
that fact and, if required by Middle Bay, post a bond in such reasonable amount
as Middle Bay may direct as indemnity against any claim that may be made against
Enex or Middle Bay with respect to such certificate, in order to receive the
Merger Consideration to which such holder is entitled.
Any portion of the aggregate Merger Consideration remaining undistributed
six months after the Effective Time will be returned to Middle Bay, and any
holders of theretofore unsurrendered Enex Common Stock will thereafter be able
to look only to Middle Bay for any portion of such Merger Consideration to which
they are entitled. Neither Middle Bay nor Enex will be liable to any holder of
Enex Common Stock for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
BACKGROUND AND REASONS FOR THE MERGER
On February 19, 1998, Middle Bay made a cash Tender Offer for all shares of
Enex common stock outstanding at a net price of $15.00 per share. The Tender
Offer was successfully closed on March 20, 1998, with 1,064,032 shares of Enex
Common Stock (79.2% of the total outstanding shares of Enex Common Stock) having
been tendered and accepted by Middle Bay. At the closing of the Tender Offer,
the then members of the Board of Directors of Enex resigned and were replaced by
persons who also comprise the Board of Directors of Middle Bay. The primary
reason for the Merger is to complete the acquisition of Enex by Middle Bay in
order to fully integrate Enex's operations with Middle Bay's.
The terms of the Merger Agreement are the result of representations made by
Middle Bay prior to consummation of the Tender Offer. The following is a brief
discussion of the background of these representations and agreements leading to
the Tender Offer, the Merger and related transactions:
(1) On January 29, 1998, Middle Bay and Enex entered into a letter of
intent (the "Letter of Intent") with respect to a proposed cash tender
offer by Middle Bay for all of the outstanding capital stock of Enex. The
Letter of Intent provided that, subject to satisfactory completion of its
due diligence review of Enex and its properties, Middle Bay would (i)
commence a cash tender offer for all of the outstanding capital stock of
Enex on or before February 20, 1998; (ii) offer Mr. Gerald B. Eckley,
President of Enex, whose employment agreement with Enex had more than four
years left on its term, a severance arrangement under which Middle Bay
would pay an aggregate amount equal to Mr. Eckley's current salary for four
years in exchange for consulting services and a first-right-of-refusal on
all prospects and potential acquisitions that he has the opportunity to
acquire over the four-year period; and (iii) offer to the holders of
outstanding options to purchase Enex Common Stock the difference between
the exercise price and $15.00 per share, with such to be paid in either
cash or shares of Middle Bay Common
11
<PAGE> 23
Stock issued on a private placement basis. The stock price is determined by
taking the previous ten days' average of the means of the closing bid and
asked prices of Middle Bay's shares immediately prior to closing on the
Tender Offer. In consideration of the foregoing agreements of Middle Bay,
Enex agreed it would not directly or indirectly solicit or encourage
inquiries for proposals to enter into an agreement with regards to the sale
of Enex or its assets until February 20, 1998, except for such actions as
may be required to enable Enex and its officers and directors to comply
with their fiduciary duties to the Enex shareholders.
(2) The Enex Board of Directors unanimously approved the Tender Offer
as being in the best interests of the stockholders of Enex and recommended
that the stockholders tender their shares to Middle Bay pursuant to the
Tender Offer. The Enex Board of Directors based its determination to
approve and recommend the Tender Offer on its consideration of the
following factors:
(a) the 30% premium represented by the difference between the
price-per-share offered by Middle Bay and the market price of Enex
Common Stock immediately prior to the execution of the Letter of Intent;
(b) the fact that the consideration offered by Middle Bay was all
cash;
(c) the fact that the Tender Offer was being made for all of the
currently outstanding Enex Common Stock; and
(d) the lack of material contingent conditions to the Tender Offer
(other than due diligence, absence of material adverse change and
certain other conditions typically imposed in tender offer
transactions).
(3) Enex did not seek a fairness opinion from any third party, nor
does it propose to do so in connection with the Merger.
THE BOARD'S APPROVAL OF THE MERGER AND RECOMMENDATION REGARDING THE MERGER
At a meeting held on June 17, 1998, the new Enex Board unanimously approved
the Merger and the Merger Agreement.
For all of the reasons set forth above, the Enex Board believes that the
Merger is fair to, and in the best interests of, Enex and its stockholders. The
Board has determined that the Merger represents an attractive opportunity for
the stockholders to exchange for fair value their potentially illiquid shares of
Enex Common Stock for freely tradeable shares of Middle Bay. Also, by becoming
Middle Bay stockholders, Enex stockholders would have the opportunity to
participate in the ownership of the combined Middle Bay/Enex business as an
integrated operation. The Enex Board, therefore, recommends to Enex's
stockholders that they vote FOR the approval of the Merger Agreement and the
Merger contemplated thereby.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
In considering the recommendation of the Enex Board with respect to the
Merger Agreement, Enex stockholders should be aware that the executive officers
and directors of Enex and Middle Bay are substantially identical and have
interests in the Merger that are in addition to or different from the interests
of stockholders of Enex generally, as described below.
As disclosed under "The Merger and Recommendation to the Board," each
member of the Enex Board of Directors is a director and shareholder of Middle
Bay and, therefore, has an interest in the Merger. In the case of three of the
directors, this interest results also from being an officer of Middle Bay.
NASDAQ STOCK MARKET LISTING
Middle Bay's Common Stock is currently listed for trading on the NASDAQ
Small Cap Stock Market. A subsequent listing application will be filed with the
NASDAQ Stock Market to list the shares of Middle Bay Common Stock to be issued
to Enex stockholders in connection with the Merger. Although no assurance
12
<PAGE> 24
can be given that the shares of Middle Bay Common Stock so issued will be
accepted for listing, Middle Bay anticipates that these shares will qualify for
listing on the NASDAQ Small Cap Stock Market, upon official notice of issuance
thereof.
POTENTIAL DELISTING OF ENEX COMMON STOCK FROM NASDAQ STOCK MARKET
As of May 31, 1998, Enex had 596 shareholders of record and 279,320
publicly-held shares outstanding. The NASDAQ Stock Market criteria for continued
inclusion of a security for trading include the requirements that there be at
least 300 record holders and not less than 500,000 publicly-held shares. Since
Enex does not meet the latter of the two criteria, the delisting of Enex Common
Stock from the NASDAQ Stock Market is likely to occur in 1998.
RESALE OF MIDDLE BAY COMMON STOCK BY AFFILIATES
Middle Bay Common Stock to be issued to Enex stockholders in connection
with the Merger has been registered under the Securities Act and, upon
consummation of the Merger, will be freely transferable under the Securities
Act, except for shares issued to any person who may be deemed an "Affiliate" (as
defined below) of Enex or Middle Bay within the meaning of Rule 145 under the
Securities Act. "Affiliates" are generally defined as persons who control, are
controlled by, or are under common control with Enex or Middle Bay at the time
of the Special Meeting (generally, directors and certain executive officers of
Enex or Middle Bay and major stockholders of Enex or Middle Bay).
Affiliates of Enex or Middle Bay may not sell their shares of Middle Bay
Common Stock acquired in connection with the Merger except pursuant to an
effective registration statement under the Securities Act covering such shares
or in compliance with Rule 145 or another applicable exemption from the
registration requirements of the Securities Act. In general, under Rule 145, for
one year following the Effective Time (the "Restricted Period"), an Affiliate
(together with certain related persons) is entitled to sell shares of Middle Bay
Common Stock acquired in connection with the Merger only through unsolicited
"broker transactions" or in transactions directly with a "market maker," as such
terms are defined in Rule 144 under the Securities Act. Additionally, the number
of shares that may be sold by an Affiliate (together with certain related
persons and certain persons acting in concert) within any three-month period
during the Restricted Period for purposes of Rule 145 may not exceed the greater
of (i) 1% of the outstanding shares of Middle Bay Common Stock or (ii) the
average weekly trading volume of such stock during the four calendar weeks
preceding such sale. Rule 145 is available to Affiliates only if Middle Bay
remains current with its information filings with the Commission under the
Exchange Act. Following the Restricted Period, an Affiliate may sell such Middle
Bay Common Stock free of such manner of sale or volume limitations, provided
that Middle Bay is current with its Exchange Act information filings and such
Affiliate is not then an Affiliate of Middle Bay. At any time following two
years after the Effective Time, an Affiliate may sell such shares of Middle Bay
Common Stock without any restrictions, so long as such Affiliate is not then,
and has not been for at least three months prior thereto, an Affiliate of Middle
Bay.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
Set forth below is Thrasher, Whitley, Hampton & Morgan's opinion regarding
the material federal income tax aspects of the Merger to holders of Enex Common
Stock deemed converted in the Merger into shares of Middle Bay Common Stock
under current law and regulations. Thrasher, Whitley, Hampton & Morgan, counsel
to Middle Bay, has issued to Middle Bay and filed as an exhibit to the
Registration Statement, of which this Proxy Statement/Prospectus is a part, a
tax opinion indicating that discussions of the tax consequences and legal
conclusions set forth herein are accurate and complete in all material respects
and constitute its opinion as stated above. The discussion is based on the
Internal Revenue Code of 1986 (the "Code"), as amended. Neither Enex nor Middle
Bay will seek any rulings from the Internal Revenue Service with respect to the
transactions contemplated hereby.
It is currently expected that the Merger will not qualify either as a
tax-free liquidation of a controlled subsidiary corporation or as a tax-free
reorganization. One of the prerequisites for treatment as a tax-free
13
<PAGE> 25
liquidation, under Code Section 332, is that Middle Bay own at least 80% of the
Enex Common Stock when the plan of liquidation is adopted. Currently, Middle Bay
owns 79.2% of the Enex Common Stock.
In the opinion of counsel to Middle Bay, the Merger is not likely to
qualify as a tax-free reorganization, even as to the Enex stockholders other
than Middle Bay and even as to Enex stockholders who receive only Middle Bay
Common Stock in exchange for their Enex Common Stock, because continuity of
interest is not sufficient. Since the Merger is not expected to be tax-free, all
Enex stockholders (even those who approve the Merger) are expected to recognize
gain or loss for federal income tax purposes as a result of the Merger. Enex
stockholders should consult their own tax advisors, however, in determining
which position to take as they file their income tax returns.
Assuming (as expected) that the Merger does not qualify as a tax-free
reorganization, the amount of gain or loss recognized by an Enex stockholder who
approves the Merger will be calculated by comparing, as of the date of the
Merger, the value of the Middle Bay Common Stock received by the Enex
stockholder with the Enex stockholder's tax basis in the Enex Common Stock
surrendered pursuant to the Merger. Any gain or loss recognized by an Enex
stockholder will generally be long-term capital gain or loss if the Enex
stockholder has held his or her Enex Common Stock as a capital asset for more
than one year as of the Effective Date of the Merger. Under current law, as
amended by the Taxpayer Relief Act of 1997, the federal income tax rate
applicable to long-term capital gains is generally lower if such holding period
exceeds 18 months. An Enex stockholder's tax basis in the Middle Bay Common
Stock received in the exchange will be its fair market value as of the Effective
Date of the Merger, and a new holding period will start as of the Effective Date
of the Merger. Therefore, a former Enex stockholder must hold the Middle Bay
Common Stock for more than one year after the Effective Date to qualify for
long-term capital gain treatment (and more than 18 months to qualify for the
lower rate) on any appreciation in the value of the Middle Bay Common Stock
after the Merger.
Regardless of whether or not the Merger qualifies as a tax-free
reorganization, the amount of gain or loss recognized by an Enex stockholder who
perfects his or her appraisal rights will be calculated by comparing the amount
of cash received by the Enex stockholder with the Enex stockholder's tax basis
in the Enex Common Stock redeemed by Enex. Any gain or loss recognized will
generally be long-term capital gain or loss if the Enex stockholder has held his
or her Enex Common Stock as a capital asset for more than one year as of the
date the stock is redeemed. As explained above, the federal income tax rate
applicable to long-term capital gains is generally lower if such holding period
exceeds 18 months.
The foregoing discussion is limited to the material federal income tax
aspects of the Merger for a holder of Enex Common Stock who is a citizen or
resident of the United States and who, on the date of conversion of such
holder's shares of Enex Common Stock, holds such shares as capital assets. All
holders are urged to consult their own tax advisors regarding the federal,
foreign, state and local tax consequences of disposition of Enex Common Stock in
the Merger. The foregoing discussion does not address potential foreign, state,
local and other nonfederal tax consequences, nor does it address taxpayers
subject to special treatment under the federal income tax laws, such as life
insurance companies, tax-exempt organizations, Subchapter S corporations and
taxpayers subject to alternative minimum tax.
THE FEDERAL INCOME TAX CONSEQUENCES SET FORTH ABOVE ARE FOR GENERAL
INFORMATION ONLY. EACH HOLDER OF ENEX COMMON STOCK IS URGED TO CONSULT HIS OR
HER OWN TAX ADVISOR TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO SUCH
STOCKHOLDER OF THE MERGER (INCLUDING THE APPLICABILITY AND EFFECT OF FOREIGN,
STATE, LOCAL AND OTHER TAX LAWS).
REGULATORY APPROVALS
No governmental approvals or filings, state or federal, are required with
respect to the Merger (other than routine change of operator filings with
respect to certain of Enex's oil and gas properties) except for the filing of
the Certificate of Merger by Enex with the Delaware Secretary of State and the
filing of Articles of Merger by Middle Bay with the Alabama Secretary of State.
14
<PAGE> 26
ACCOUNTING TREATMENT
Middle Bay accounted for its acquisition of 79.2% of the issued and
outstanding Enex Common Stock under the purchase method of accounting. The
Merger constitutes an acquisition of minority interests and will also be
accounted for under the purchase method of accounting. As a result, the total
consideration paid by Middle Bay for its interests in Enex will be allocated to
the assets and liabilities of Enex based on the fair value of the assets and
liabilities acquired.
At the 1998 Annual Meeting of Shareholders held June 18, 1998, directors
nominated and shareholders approved the appointment of KPMG Peat Marwick LLP as
Middle Bay's independent public accountants, replacing Schultz, Watkins &
Company. Representatives of both firms will be present at the Special Meeting,
will be given the opportunity to make a statement if they desire to do so and
will be available to respond to reasonable and appropriate questions.
APPRAISAL RIGHTS
The following discussion is a complete summary in all material respects of
the law pertaining to dissenters' rights under Delaware General Corporation Law
("DGCL"). However, such summary is qualified in its entirety by reference to the
full text of Section 262 of the DGCL setting forth the rights of stockholders
who object to the Merger Agreement and the Merger. Stockholders wishing to
exercise such appraisal rights or to preserve their rights to do so ("Dissenting
Stockholders") should review the following discussion and the provisions of
Section 262 of the DGCL with counsel. A copy of Section 262 of the DGCL is
attached to this Proxy Statement/Prospectus as Appendix II. The failure of
Dissenting Stockholders to comply in a timely and proper manner with the
procedures set forth in the DGCL will result in the loss of appraisal rights
with respect to the Merger.
Section 262 of the DGCL sets forth the rights of stockholders of Enex who
object to the Merger. In general, as described in greater detail below, a
stockholder objecting to the Merger who wishes to dissent must file a written
notice of dissent prior to the vote on the Merger Agreement, and, after such
vote is taken, comply with Section 262 to seek appraisal of the value of Enex
Common Stock.
Any holder of Common Stock who does not vote in favor of the Merger
Agreement (including any such holder who abstains from voting), or who duly
revokes a vote in favor of such transaction, and (in either case) who objects to
the Merger, may, if the Merger is consummated, obtain payment, in cash, for the
appraised fair market value of such stockholder's shares of Enex immediately
prior to the Merger by complying with the requirements of the DGCL. Holders of
Enex Common Stock are ineligible to exercise their appraisal rights unless they
are stockholders on the Record Date, continue to hold such shares through the
Effective Time and have not voted in favor of the Merger Agreement.
Before the taking of the vote on the Merger Agreement at the Special
Meeting, each Dissenting Stockholder must file with Enex a written demand for
appraisal of the value of his/her shares of Enex Common Stock if the Merger is
consummated. A written demand must be filed with Enex by holders of Enex Common
Stock who wish to demand appraisal even if they vote against the Merger. Such
written demand should be addressed to: Corporate Secretary, Enex Resources
Corporation, 800 Rockmead Drive, Three Kingwood Place, Kingwood, Texas 77339.
If the Merger Agreement is approved, within ten days after the Effective
Time, Middle Bay must provide written notice to each Dissenting Stockholder of
the Effective Time and that appraisal rights are available for any or all of the
shares of Enex. If the Dissenting Stockholders and Middle Bay cannot reach
agreement as to the appraisal value of the Enex Common Stock, Middle Bay or any
Dissenting Stockholder, within 120 days after the Effective Time of the Merger,
may file a petition in the Court of Chancery in Delaware demanding a
determination of the value of the Enex Common Stock. Within such 120-day period,
any Dissenting Stockholder is entitled to receive upon request from Middle Bay a
statement setting forth the aggregate number of shares not voted in favor of the
Merger and with respect to which demands for appraisal have been received and
the aggregate number of holders of such shares. This written statement must be
mailed to the Dissenting Stockholder within ten days after written request is
received by Middle Bay. Further, at any time
15
<PAGE> 27
within 60 days after the Effective Time of the Merger, any Dissenting
Stockholder has the right to withdraw his demand for appraisal and accept the
terms offered upon the Merger.
Following the filing of a petition in the Court of Chancery for an
appraisal of the value of the Enex Common Stock, the Court shall determine the
stockholders who have complied with Section 262 and are entitled to appraisal
rights. The Court may demand that Dissenting Stockholders submit their
certificates of stock to the Registry in Chancery for notation thereon of the
pendency of the appraisal proceedings and may dismiss the proceedings as to any
Dissenting Stockholder failing to comply with such request. The Court will then
appraise the Enex Common Stock, determining the fair value thereof immediately
prior to the Merger exclusive of any element of value arising from the
accomplishment or expectation of the Merger, together with a fair rate of
interest, if any, to be paid upon the amount determined to be the fair value.
The Court is authorized by the DGCL to take into account all relevant factors.
Upon determination of the fair value, the Court shall then direct Middle Bay to
pay the Dissenting Stockholders the fair value so determined. Interest may be
simple or compound, as the Court may direct.
Enex will accept a Dissenting Stockholder's objection to the Merger and
demand for payment of its shares by facsimile transmission, provided such
facsimile is confirmed, in writing, sent by certified or registered mail to Enex
at the address specified above within 24 hours after transmission of the
facsimile. The facsimile communication should be addressed to: Corporate
Secretary, Enex Resources Corporation, facsimile number: (713) 650-0352.
A vote against the Merger does not constitute a "written demand" filed by a
Dissenting Stockholder. A Dissenting Stockholder's abstention from voting on the
Merger or failure to specify any vote on the accompanying proxy will not
constitute a waiver of such stockholder's rights under the DGCL, provided that a
written demand has been properly filed. A vote in favor of the Merger will
constitute a waiver of such stockholder's appraisal rights, however, even if a
written demand has been filed.
THE MERGER AGREEMENT
The following discussion of the Merger Agreement is qualified in its
entirety by reference to the complete text of the Merger Agreement, which is
included in this Proxy Statement/Prospectus as Appendix I (exclusive of certain
exhibits) and is incorporated herein by reference.
GENERAL
The Merger Agreement provides for the merger of Enex into Middle Bay.
Middle Bay will be the Surviving Corporation of the Merger and shall succeed to
and assume all rights and obligations of Enex. In connection with the Merger,
the stockholders of Enex (other than Middle Bay and those stockholders who
perfect appraisal rights in accordance with the DGCL) will receive the Merger
Consideration described below.
CLOSING; EFFECTIVE TIME
The closing of the Merger will take place as soon as practicable after the
day upon which all conditions to consummation of the Merger are satisfied or
waived. The Effective Time of the Merger will occur upon the filing of a
Certificate of Merger with the Secretary of State of the State of Delaware and
acceptance thereof by such Secretary of State as required by the DGCL or at such
later date as may be specified in the Certificate of Merger and the filing with
and acceptance of Articles of Merger by the Alabama Secretary of State. It is
anticipated that such Certificates will be filed promptly after the approval and
adoption of the Merger Agreement by the stockholders of Enex at the Special
Meeting. Such filings will be made, however, only upon satisfaction or waiver of
all conditions to the Merger contained in the Merger Agreement. The economic
effective date for purposes of the Merger Agreement is July 1, 1998.
16
<PAGE> 28
MERGER CONSIDERATION
In connection with the Merger, each outstanding share of Enex Common Stock
at the Effective Time (except those shares held by Middle Bay and shares for
which appraisal rights have been perfected and not withdrawn) will be converted
into the right to receive shares of Middle Bay Common Stock (the
"Conversion Ratio"), it being Middle Bay's intention that the Middle Bay shares
into which each share of Enex Common Stock is converted would have a total
market value per Enex share of $15. Each share of Enex Common Stock owned by
Middle Bay or held by Enex as treasury shares will be canceled without
consideration. Instructions with regard to the surrender of certificates
formerly representing shares of Enex Common Stock will be delivered to the
holders thereof as described under the heading "The Merger -- Procedures for
Exchange of Certificates."
No fractional share of Middle Bay Common Stock will be issued to any holder
of Enex Common Stock, but in lieu thereof, each such stockholder who otherwise
would be entitled to receive a fraction of a share of Middle Bay Common Stock
(after aggregating all fractional shares of Middle Bay Common Stock which would
be received by such stockholder) shall receive cash from Middle Bay in an amount
equal to $15.00 divided by the Conversion Ratio and multiplied by such fraction.
After the Effective Time, the holder of a certificate formerly representing
shares of Enex Common Stock shall cease to have any rights as a stockholder of
Enex, and such holder's sole right will be to receive the Merger Consideration
with respect to such shares. No transfer of shares outstanding immediately prior
to the Effective Time will be made on the stock transfer books of Middle Bay
after the Effective Time. Certificates formerly representing shares of Enex
Common Stock presented to Middle Bay after the Effective Time will be canceled
in exchange for the aggregate Merger Consideration to which the holder of such
certificates is entitled.
In no event will holders of Enex Common Stock be entitled to receive any
interest on the aggregate Merger Consideration to be distributed to them in
connection with the Merger.
REPRESENTATIONS AND WARRANTIES
The Merger Agreement contains various customary representations and
warranties of Enex relating to, among other things: (i) Enex's organization and
similar corporate matters; (ii) the execution, delivery and performance of the
Merger Agreement by Enex, the legality, validity and enforceability thereof
against Enex, and the noncontravention of, and lack of conflict with, the
Certificate of Incorporation or Bylaws of Enex, the terms of any note, bond,
mortgage, deed of trust, security interest, indenture, license, contract,
agreement, plan or other obligation of Enex, or any provision of any statute,
law, ordinance or administrative or arbitration order, award, judgment, writ,
injunction or decree applicable to Enex or any of its properties or assets;
(iii) the financial statements of Enex and the accuracy of the information
contained therein; (iv) subject to certain exceptions, absence of certain
specified material changes or events; (v) the absence of undisclosed litigation
and other legal proceedings; (vi) the absence of undisclosed liabilities; (vii)
the absence of defaults under or breaches of Enex's Certificate of Incorporation
and Bylaws, agreements and obligations to which Enex is subject, or orders,
writs, injunctions, decrees, statutes, rules or regulations applicable to Enex
or its properties or assets; (viii) the absence of any violations of applicable
law; and (ix) entitlement to brokers and finders fees.
The Merger Agreement also contains certain customary representations and
warranties of Middle Bay relating to, among other things: (i) its organization
and similar corporate matters; (ii) the execution, delivery and performance of
the Merger Agreement by Middle Bay, the legality, validity and enforceability
thereof against Middle Bay, and the noncontravention of, and lack of conflict
with, the Certificate of Incorporation and Bylaws of Middle Bay, the terms of
any note, bond, mortgage, deed of trust, security interest, indenture, license,
contract, agreement, plan or other obligation of Middle Bay, or any provision of
any statute, law, ordinance or administrative or arbitration order, award,
judgment, writ, injunction or decree applicable to Middle Bay or any of its
properties or assets; (iii) documents filed by Middle Bay with the Commission
and the accuracy of the information contained therein; (iv) subject to certain
exceptions, absence of certain
17
<PAGE> 29
specified material changes or events; (v) the absence of undisclosed
liabilities; and (vi) entitlement to brokers and finders fees.
None of the representations and warranties described above or contained in
the Merger Agreement survive the Effective Time of the Merger.
CONDUCT OF BUSINESS OF ENEX PRIOR TO THE EFFECTIVE TIME
Pursuant to the Merger Agreement, Enex has agreed that, among other things,
prior to the Effective Time, it will conduct its business in the ordinary course
consistent with past practice and it will not, without the prior written consent
of Middle Bay: (i) amend its Certificate of Incorporation or Bylaws; (ii) issue
or otherwise dispose of any securities of Enex; (iii) split, combine or
reclassify any shares of its capital stock, declare, set aside or pay any
dividend or other distribution in respect of its capital stock or redeem or
otherwise acquire any of its securities or authorize, adopt or otherwise
participate in a plan of liquidation or other corporate reorganization; (iv)
except for borrowings under Enex's existing credit facilities, incur any
indebtedness other than routine trade payables, make any loans or investments in
any other person, or pledge or otherwise encumber any of its shares of capital
stock or assets; (v) enter into, amend or terminate any employee benefit
agreement, trust or other arrangement for the benefit or welfare of any
director, officer or employee, or increase the compensation or fringe benefits
of any director, officer or employee or pay any benefit not required by any
current plan or arrangement; (vi) acquire, sell, lease or dispose of any assets
other than in the ordinary course of business consistent with past practices;
(vii) except as required by generally accepted accounting principles, change any
accounting principle or practice used by it; (viii) make any tax selection or
settle or compromise any tax liability; (ix) pay or discharge any claims,
obligations or liabilities, other than those reflected or reserved against in
the financial statements of Enex or incurred in the ordinary course of business
consistent with past practices; (x) acquire any corporation, partnership or
other business organization or division thereof, enter into any contract or
agreement other than in the ordinary course of business consistent with past
practice with executory obligations not to exceed $50,000 in each case or
authorize any capital expenditures in excess of $20,000; or (xi) commit or agree
in writing or otherwise to take any of the actions described above.
ACQUISITION PROPOSALS
From the date of the Merger Agreement until termination thereof, Enex has
agreed and has agreed to cause its officers, directors, employees or other
agents not to, directly or indirectly, (i) take any action to solicit, initiate
or encourage any Acquisition Proposal, as defined below, or (ii) engage in
negotiations with or disclose any nonpublic information relating to Enex or
afford access to its properties, books or records to any person that may be
considering making or has made, an Acquisition Proposal. An "Acquisition
Proposal" is defined as any offer or proposal for, or any indication of interest
in, a merger or other business combination involving Enex or the acquisition of
any equity interest in, or a substantial portion of the assets of Enex other
than the transactions contemplated by the Merger Agreement.
CONDITIONS TO CONSUMMATION OF THE MERGER
The respective obligations of Enex and Middle Bay to consummate the Merger
are subject to the satisfaction (or waiver) at or prior to the Effective Time of
the following conditions: (i) no statute, rule, regulation, executive order,
decree, ruling or preliminary or permanent injunction existing which prohibits,
restrains, enjoins or restricts the consummation of the Merger; (ii) the
effectiveness of this Registration Statement, no stop order suspending the
effectiveness of this Registration Statement being in effect and no proceedings
for such purpose being threatened by the Commission or initiated by the
Commission and not concluded or withdrawn; (iii) the approval for listing on the
NASDAQ Stock Market of the Middle Bay Common Stock to be issued in connection
with the Merger; and (iv) the approval by the stockholders of Enex of the Merger
Agreement and the transactions contemplated thereby.
The obligation of Enex to consummate the Merger is subject to the
satisfaction (or waiver) of the following conditions: (i) Middle Bay shall have
performed in all material respects its obligations under the
18
<PAGE> 30
Merger Agreement; and (ii) the representations and warranties of Middle Bay
contained in the Merger Agreement shall be true and correct in all material
respects.
The obligations of Middle Bay to consummate the Merger are subject to the
satisfaction (or waiver) of the following conditions: (i) Enex shall have
performed in all material respects its obligations under the Merger Agreement;
(ii) the representations and warranties of Enex shall be true and correct in all
material respects; and (iii) Enex shall have secured all consents required for
its consummation of the Merger.
TERMINATION
The Merger Agreement may be terminated (i) at any time prior to the
Effective Time by mutual consent of the parties; (ii) by Middle Bay or Enex if
the Merger has not been consummated on or before September 30, 1998, or a United
States federal or state court or federal or state governmental, regulatory or
administrative agency or commission issues an order, decree or ruling or takes
other action permanently restraining, enjoining or otherwise prohibiting the
Merger and such order, decree, ruling or other action is final and
nonappealable; (iii) by Enex prior to the Effective Time if there has been a
material breach by Middle Bay of any obligation or any representation or
warranty, which is not cured within 20 days of notice thereof; or (iv) by Middle
Bay prior to the Effective Time if there has been a material breach by Enex of
any obligation or any representation or warranty contained in the Agreement,
which is not cured within 20 days of notice thereof.
AMENDMENTS AND WAIVERS
The Merger Agreement may not be amended except by an instrument in writing
signed on behalf of the parties thereto. The Merger Agreement provides that at
any time before the closing of the Merger, either Enex or Middle Bay may waive
any inaccuracies in the representations and warranties of any other party
contained in the Merger Agreement and waive compliance by any other party with
any of the agreements or conditions contained in the Merger Agreement.
EXPENSES
If the Merger is consummated, all costs and expenses incurred in connection
with the Merger Agreement and the transactions contemplated thereby shall be
paid by Middle Bay; however, if the Merger is not consummated, all expenses of
this solicitation, including the cost of preparing and mailing this Proxy
Statement/Prospectus, will be shared equally by Enex and Middle Bay.
BUSINESS OF MIDDLE BAY
BUSINESS DEVELOPMENT
Middle Bay is an independent oil and gas company engaged in the
exploration, development and production of oil and gas in the contiguous United
States. Middle Bay's strategy focuses on increasing its reserves of crude oil
and natural gas by the acquisition and development of proved oil and gas
properties primarily in the Mid-Continent and Gulf Coast regions. Middle Bay
believes the current period reflects historically low market prices for oil and
gas and is focusing its efforts on increasing reserves so that it will be well
positioned to benefit in the event of any future increases in demand for natural
gas and oil. Consistent with these efforts, Middle Bay is participating on a
limited basis in drilling and development activities in other geographic regions
of the contiguous United States. In November, 1997, Middle Bay relocated its
principal executive offices to 1221 Lamar Street, Suite 1020, Houston, Texas
77010. Middle Bay's mailing address is P.O. Box 53448, Houston, Texas
77052-3448. Its telephone number is (713) 759-6808.
Middle Bay was incorporated under the Alabama Business Corporation Code on
November 30, 1992. Effective December 31, 1992, all of the assets of Bay City
Consolidated Partners, L.P., an Alabama limited partnership, were transferred to
Middle Bay in exchange for common stock of Middle Bay. The limited partnership
was then dissolved under the Alabama Uniform Limited Partnership Act. The shares
of common
19
<PAGE> 31
stock of Middle Bay then owned by the limited partnership were distributed to
the general partner and the limited partners prorata in accordance with their
respective interests in the limited partnership.
On April 3, 1996, Middle Bay entered into a Joint Expense and Participation
Agreement (the "Brigham Agreement") with Brigham Oil and Gas, L.P., now Brigham
Exploration Company ("Brigham"). The Brigham Agreement allowed Middle Bay to
participate in all of the wells that Brigham drilled over the 12-month period
beginning April 1, 1996. Middle Bay advanced Brigham a total of $1,945,000 to
drill 61 wells, of which 43 were successfully completed.
On September 4, 1996, Middle Bay entered into a stock purchase agreement
(the "Preferred Stock Agreement") with Kaiser Francis Oil Company
("Kaiser-Francis") whereby Kaiser-Francis agreed to purchase 1,666,667 shares of
Series A Preferred Stock (the "Series A") at $6.00 per share, for a total
investment of $10,000,000. The Series A shares had all been issued as of
December 31, 1997. On January 31, 1998, Kaiser-Francis converted 100% of the
Series A shares into 3,333,334 common shares of Middle Bay. Prior to their
conversion to common stock, the Series A were nonvoting and accrued dividends at
8% per annum, payable quarterly in cash, and were convertible at any time into
two shares of common stock for each Series A share held prior to January 1,
1998. Gary R. Christopher, a director of Middle Bay, serves as Acquisitions
Coordinator for Kaiser-Francis.
On December 17, 1996, Middle Bay entered into an Agreement and Plan of
Merger (the "NPC Merger") with NPC Energy Corporation ("NPC"), whereby NPC would
be merged into Middle Bay in exchange for Company common stock and cash. The NPC
Merger was approved by NPC's shareholders and closed on December 31, 1996. NPC
was a privately-owned domestic exploration and production company with assets
located in Kansas, Michigan, Oklahoma, Texas and Wyoming. Pursuant to the NPC
Merger, Middle Bay issued 562,000 shares of its common stock and paid $1,226,400
to NPC in exchange for all of the stock of NPC. The cash funding for the NPC
Merger was financed through the issuance of 166,667 shares of Series A for $1.0
million. The NPC Merger added approximately 503 thousand barrels of oil and
3,139 million cubic feet of gas, for a total proved reserve value of $6.0
million (PV 10%) as of December 31, 1996, using December 31, 1996 prices.
On February 10, 1997, Middle Bay entered into an Agreement and Plan of
Merger (the "Bison Merger") with Bison Energy Corporation ("Bison"), whereby
Bison was merged with a wholly-owned subsidiary of Middle Bay in exchange for
Company common stock and cash. The Bison Merger was approved by Bison's sole
shareholder and closed on February 28, 1997. Bison was a privately-held,
domestic exploration and production company with assets located in Kansas and
Oklahoma. Pursuant to the Bison Merger, Middle Bay issued 1,167,556 shares of
its common stock and net cash consideration of $5,900,000 to Bison in exchange
for all of the stock of Bison. 562,000 shares of Company common stock owned by
Bison (as a result of the NPC Merger) were canceled at closing. The cash portion
of the Bison Merger was financed through the issuance of 1,000,000 shares of
Series A for $6.0 million. The Bison Merger added approximately 951 thousand
barrels of oil and 7,791 million cubic feet of gas, for a total proved reserve
value of $8.94 million (PV 10%) as of February 28, 1997, using December 31, 1997
prices.
On June 20, 1997, Middle Bay entered into an Agreement and Plan of Merger
(the "Shore Merger") with Shore Oil Company ("Shore"), whereby Shore was merged
with a wholly-owned subsidiary of Middle Bay in exchange for Company common
stock, Series B preferred stock (the "Series B"), cash and the assumption of
Shore bank debt. The Shore Merger was approved by Shore's shareholders and
closed on June 30, 1997. Shore was a privately-held, domestic exploration and
production company with oil and gas properties located primarily in Alabama,
Louisiana, Mississippi and Texas, as well as approximately 42,000 net mineral
acres in LaFourche, Terrebonne and St. Mary Parishes, Louisiana. Pursuant to the
Shore Merger, Middle Bay issued 1,883,333 shares of its common stock, paid
Shore's indebtedness to its shareholders of $2,333,303 and assumed bank debt of
$2,105,000. In addition, Middle Bay paid $200,000 in cash and issued 266,667
shares of Series B which are convertible into as many as 1,333,333 shares of
common stock over the next five years, contingent upon the results of drilling
and leasing activity on Shore's Louisiana mineral acreage. The cash funding for
the Shore Merger was financed through the issuance of 500,000 shares of Series A
for $3.0 million. The Shore Merger added approximately 965 thousand barrels of
oil and 1,364
20
<PAGE> 32
million cubic feet of gas, for a total proved reserve value of $6.0 million (PV
10%) as of July 1, 1997, using December 31, 1997 prices. The Shore Merger also
added approximately 42,000 net acres of fee minerals situated in Lafourche,
Terrebonne and St. Mary Parishes in Louisiana that were valued at approximately
$3.6 million at June 30, 1997. In connection with the Shore Merger, Alvin V.
Shoemaker and Stephen W. Herod were appointed directors of Middle Bay, replacing
Frank C. Turner, II and C. Noell Rather.
Middle Bay acquired on March 27, 1998 1,064,032 shares of the common stock
of Enex for $15 cash per share pursuant to the Tender Offer which began on
February 19, 1998. The Enex shares acquired by Middle Bay represent 79.2% of the
total outstanding Enex Common Stock. The purchase price per share was derived by
Middle Bay by estimating the discounted reserve value of Enex's properties and
through negotiation with Enex management, who recommended acceptance of the
Tender Offer to Enex shareholders. The purchase price of $15,960,480 was
financed through Middle Bay's new credit facility with Compass Bank and Bank of
Oklahoma, as described under "Company Financing," below. Concurrent with the
completion of the Tender Offer, Middle Bay negotiated the immediate termination
of all outstanding Enex stock option rights held by certain former officers and
employees of Enex so that none of such options are currently outstanding. The
options, in the aggregate, represented rights to purchase up to 143,000 shares
of Enex Common Stock at an average price of $9.22 per share. The total amount
paid by Middle Bay to holders of such options was $826,250. In addition, Middle
Bay entered into a consulting agreement with Gerald B. Eckley, former President,
Chief Executive Officer and a director of Enex, whereby Mr. Eckley shall be paid
on a monthly basis an aggregate of $960,000 over a four-year period beginning
, 1998 in consideration of his services as consultant and
acquisitions advisor and the termination of his employment contract with Enex.
Concurrent with the closing of the Tender Offer, the Enex Board of Directors and
executive officers resigned and were replaced by the persons who constitute
Middle Bay's Board of Directors and corresponding executive officers.
On April 16, 1998, Middle Bay entered into and closed an Asset Purchase
Agreement (the "Agreement") with Service Drilling Co., L.L.C. ("Service
Drilling") and certain of its affiliates whereby Middle Bay acquired
substantially all of the assets of Service Drilling and its affiliates in
exchange for Middle Bay Common Stock and cash. Service Drilling and its
affiliates are privately-owned domestic oil and gas development and production
companies with assets located primarily in Oklahoma and the Texas Panhandle.
Pursuant to the Agreement, Middle Bay issued 666,000 shares of its common stock
and paid an aggregate cash consideration of $6,500,000, subject to post-closing
adjustments, in exchange for the assets. The economic effective date of this
transaction was March 1, 1998. Asset values were determined by estimating the
discounted reserve value of the acquired properties and through negotiation. The
cash portion of the consideration was financed through Middle Bay's bank credit
facility and cash on hand.
Middle Bay has financed the cash requirements of its acquisitions through a
convertible credit facility, initially with Bank of Oklahoma, N.A. and, since
March, 1998, with Compass Bank as lead lender and Bank of Oklahoma, N.A. as a
participating lender (the "Banks"). The $100 million facility has a present
borrowing base of $32.6 million. The borrowing base is required to be reduced by
$330,000 per month beginning May 1, 1998 and ending October 1, 1998. The
borrowing base and the scheduled reduction amount shall be redetermined
semi-annually by unanimous consent of the lenders beginning October 1, 1998. The
principal is due at maturity -- April 1, 2001. Monthly principal payments are
made as required in order that the outstanding principal balance does not exceed
the borrowing base. Interest is payable monthly and is calculated at the prime
rate. Middle Bay may also elect to calculate interest under the Libor rate, as
defined in the loan agreement. The Libor rate increases by (a) 2.00% if the
outstanding loan balance and letters of credit are equal to or greater than 75%
of the borrowing base, (b) 1.75% if the outstanding loan balance and letters of
credit are less than 75% or greater than 50% of the borrowing base, and (c)
1.50% if the outstanding loan balance and letters of credit are equal to or less
than 50% of the borrowing base. Libor interest is payable at maturity of the
Libor loan, which cannot be less than thirty days.
At May 31, 1998, Middle Bay had borrowed approximately $30.9 million and
had approximately $1.4 million of outstanding letters of credit. As of May 31,
1998, Middle Bay is paying Libor plus 2.00% on a thirty-day Libor loan for
$ and prime on $ .
21
<PAGE> 33
Middle Bay paid a facility fee equal to 3/8% of the initial borrowing base
and is required to pay 3/8% on any future increase in the borrowing base within
five days of written notice. Middle Bay is required to pay a quarterly
commitment fee on the unused portion of the borrowing base of one-half percent
if the outstanding loan balance plus letters of credit are greater than 50% of
the borrowing base or three-eighths percent if the outstanding loan balance plus
letters of credit are less than or equal to 50% of the borrowing base. Middle
Bay is required to pay a letter of credit fee on the date of issuance or renewal
of each letter of credit equal to the greater of $500 or one and one-half
percent of the face amount of the letter of credit.
Middle Bay has granted to the Banks liens on substantially all of Middle
Bay's oil and natural gas properties, whether currently owned or hereafter
acquired, and a negative pledge on all other oil and gas properties. The $100
million facility requires, among other things, a cash flow coverage ratio of
1.25 to 1.00 and a current ratio of 0.9 to 1.00, determined on a quarterly
basis.
BUSINESS STRATEGY
Middle Bay's oil and gas reserves are principally in long-lived fields with
well-established production histories. Middle Bay's net Proved Reserves,
estimated as of December 31, 1997 by applying S.E.C. assumptions, consisted of
approximately 18,419 million cubic feet of gas and 2.9 million barrels of oil,
with an aggregate present value before income taxes, at a 10% discount, of
$30,179,000. Approximately 80% of the reserves are classified as proved
developed producing, 7% are proved developed non-producing and 13% are proved
undeveloped. On an equivalent barrel basis, the proved reserves are 55% gas.
Recoverable volumes of gas increased 105% and recoverable volumes of oil
increased 111% over 1996 volumes. The PV 10% of the oil and gas reserves
increased 34% over the 1996 amount of $22,465,000. The reserves are located
primarily in Alabama, Kansas, Louisiana, Oklahoma and Texas. A substantial
portion of Middle Bay's natural gas production and Proved Reserves consist of
high BTU gas which, because of its rich liquid content and its proximity to
processing and transmission facilities, is generally sold at a premium to Gulf
Coast and Mid-Continent spot market prices. Substantially all of Middle Bay's
oil production is sold at market responsive prices. All of Middle Bay's gas
production, except for the gas sold in the Spivey Field, is sold at market
responsive prices.
Middle Bay's present business strategy is to concentrate on expanding its
asset base and cash flow primarily through emphasis on the following activities:
- Increasing production, cash flow and asset value by acquiring Producing
Properties with stable production rates, long reserve lives and potential
for exploitation and development;
- Building on Middle Bay's existing base of operations by concentrating its
development activities in its primary operating areas in the Gulf Coast
and the Mid-continent Regions;
- Acquiring additional properties with potential for developmental drilling
to maintain a significant inventory of undeveloped Prospects and to
enhance Middle Bay's foundation for future growth;
- Serving as operator of its wells to ensure technical performance and
reduce costs;
- Expanding its relationships with major and large independent oil and gas
companies to access their undeveloped properties, seismic data and
financial resources;
- Managing financial risk and mitigating technical risk by:
- drilling in known productive trends with multi-horizon geologic
potential;
- diversifying investment over a large number of wells in Middle Bay's
primary operating areas;
- developing properties that provide a balance between short and long
reserve lives; and
- keeping a balanced reserve profile between oil and gas; and
- Maintaining low general and administrative expenses and increasing
economies of scale to reduce per unit operating costs and reserve
acquisition costs.
22
<PAGE> 34
ACQUISITION POLICY
Middle Bay continues to pursue a program of actively acquiring producing
oil and gas properties, with the goal of increasing cash flow, reserves and
value for the long-term benefit of its stockholders.
Middle Bay utilizes an acquisitions' screening approach with its
experienced management and technical staff which reviews potential property
against multiple criteria, both quantitative and subjective. Middle Bay
generally seeks Producing Properties with established production histories.
Middle Bay may operate the property acquired; however, Middle Bay also considers
nonoperated property acquisitions.
In evaluating Producing Properties for potential acquisition, production
history, reservoir characteristics and available geologic data and
interpretations are analyzed to determine estimates of proved and other reserves
and cash flows expected to be recovered. Also evaluated are specific risks and
economic considerations associated with the property, including environmental
liabilities, risks of curtailment, condition of equipment and potential for
additional development opportunities. Sales contracts, operating agreements and
other contractual commitments, including take-or-pay clauses, market-out
clauses, gas balancing agreements, transportation agreements and reversionary
interests that may affect the cash flows from the property are also reviewed.
DRILLING ACTIVITIES
Middle Bay has participated in drilling operations primarily in Texas,
Louisiana and Kansas. Middle Bay's drilling activity increased significantly in
1996 when Middle Bay executed the Brigham Agreement. The Company's drilling is
funded principally from cash flow and is highly dependent on the price of oil
and gas. If the price of oil continues to remain at or near the June 1998
levels, the amount of funds available for drilling could be reduced.
For the twelve months ended December 31, 1997, Middle Bay drilled 42 gross
wells; 23 Development Wells and 19 Exploratory Wells. Seventeen of the
Development Wells and 8 of the Exploratory Wells were successful. Middle Bay's
drilling was concentrated in Kansas, Louisiana and Texas, where 14, 12 and 7
wells were drilled, respectively. The majority of the Kansas wells were
Development Wells drilled in the Spivey Field (the "Spivey Field"). Two
unsuccessful Exploratory Wells were drilled in the Reflection Ridge Prospect in
Stanton County, Kansas. No further exploration is anticipated on the Reflection
Ridge Prospect. For the three months ended March 31, 1997, Middle Bay
participated in the drilling of 12 Exploratory Wells through the Brigham
Agreement. The Brigham Agreement ended March 31, 1997.
Shore Oil Company #1, an Exploratory Well being drilled as of December 31,
1997, was found to be unsuccessful in February, 1998. This Exploratory Well was
drilled on the Raceland Prospect in Lafourche Parish, Louisiana which is located
on the fee mineral acreage acquired in the Shore Merger. Middle Bay had prepaid
approximately $300,000 in drilling cost as of December 31, 1997 and expensed the
costs in the fourth quarter when it was determined that the well was abandoned.
For the twelve months ended December 31, 1996, Middle Bay drilled 54 wells,
5 Developmental Wells and 49 Exploratory Wells. Four of the Developmental Wells
and 31 of the Exploratory Wells were successful. For the nine months ended
December 31, 1996, Middle Bay participated in the drilling of 49 Exploratory
Wells through the Brigham Agreement. Forty wells were drilled in Texas, seven in
Oklahoma, one in Kansas and one in New Mexico. Middle Bay also participated in
the drilling of four Developmental Wells in the Frymire Waterflood Unit in Nolan
County, Texas, three of which were successful and one of which was a dry hole.
One successful Developmental Well was drilled in the Campbell Field in Major
County, Oklahoma.
Drilling activities during 1997 added 22 thousand barrels of oil and 705
million cubic feet of gas with estimated future net revenues, discounted at 10%,
of $851,000. Drilling activities during 1996 added 76 thousand barrels of oil
and 392 million cubic feet of gas with estimated future net revenues, discounted
at 10%, of $1,966,000. For the years 1996 and 1997, oil and gas reserves
discovered through current year drilling accounted for 11% and 3%, respectively,
of the year-end reserve value.
23
<PAGE> 35
In 1995, Middle Bay entered into a joint development agreement, the Quarry
Prospect, with Chesapeake Operating, Inc. ("COI"). The agreement covers a
600-acre block of leases in Lea County, New Mexico assembled by Middle Bay and
COI. The Quarry Prospect is believed to be a large strawn algal mound that was
initially identified through 2-D seismic and further defined using 3-D seismic
testing. In 1997, Middle Bay acquired additional leases in the prospect and sold
50% of the Quarry Prospect. Middle Bay and COI together retained 50% of the
Quarry Prospect. If COI elects not to participate, Middle Bay's interest will be
increased to 50%. The first well on the Quarry Prospect is expected to spud in
the second quarter of 1998 and will cost Middle Bay approximately $141,000 to
drill and $66,000 to complete (assuming a 25% working interest).
In July 1997, Middle Bay executed an exploration agreement with Brigham
Exploration Company ("Brigham") for a 3-D seismic exploration project on the
Hawkins Ranch (the "Ranch") in Matagorda County, Texas. The Ranch has been lease
optioned for a 54 square mile 3-D seismic survey. Middle Bay purchased a 25%
working interest through the lease selection phase of the project for $225,000.
Middle Bay purchased a 12.5% working interest in the Sherburne Prospect in
Point Coupee Parish, Louisiana, in October, 1997 (the "Sherburne Prospect"). The
Sherburne Prospect consists of approximately 10,000 acres that are prospective
in the Frio, Cockfield, Sparta and Wilcox formations. The acreage is located in
Southwest Point Coupee Parish between Krotz Springs Field and the Fordoche
Field. Production is at depths from 6,500' to 15,500'. Swift Energy Company has
a 62.5% working interest and will be the operator. A private company holds the
remaining 25%. The exploratory well reached total depth on April 20, 1998 and
was completed in the Sparta Formation during June, 1998.
During May, 1998, two developmental wells and one exploratory well were
drilled. The developmental wells are in the Frymire Waterflood in the Lake
Trammel Field in Nolan County, Texas and were successfully completed as
producers. The exploratory well was the Shore Oil Co. #1 in Terrebonne Parish,
Louisiana which was abandoned as a dry hole. All three wells were spudded in
April, 1998.
In the foreseeable future, Middle Bay's primary drilling focus will be its
participation in the Sherburne Prospect, the Ranch Prospect, the Quarry Prospect
and the development of the Spivey Field. Middle Bay expects to drill several
Development Wells in the Spivey Field in Kansas in 1998. Middle Bay also expects
several wells to be drilled on the Shore mineral acreage in South Louisiana in
1998. In addition, Middle Bay is continually evaluating Prospects originated by
its staff, other independent geologists or other oil and gas companies. If
review of a certain Prospect indicates that it may be geologically and
economically attractive, then Middle Bay will attempt to obtain a Lease on the
applicable acreage or commit to a Working Interest in the drilling Prospect.
When Middle Bay does participate in a Prospect, it will typically acquire a
fractional Working Interest in the Prospect, which may range from small
percentage interests in more expensive exploratory Prospects to a majority
interest in a lower cost or development Prospect. Middle Bay believes that such
participation, which is common practice in the oil and gas industry, allows for
further diversification and reduction of risk.
ACQUISITIONS AND MERGERS
Since its formation, Middle Bay has grown primarily through acquisitions of
proven oil and gas reserves. For the years 1993 through 1997, acquisitions of
reserves accounted for 64%, 5%, 35%, 34% and 80% of the year-end discounted
reserve value, respectively. Middle Bay has financed its acquisitions primarily
by utilizing its credit facility with the Bank and issuing common and preferred
stock. See "Company Financing," below.
In August 1997, Middle Bay acquired a 5.74% working interest in proved
reserves in the Riceville Field in Vermilion Parish, Louisiana for approximately
$3.5 million. The acquisition was financed with $3 million in loan proceeds and
the remainder from cash on hand. The Riceville Acquisition added approximately
63 thousand barrels of oil and 2,955 million cubic feet of gas to Middle Bay's
proved reserves. A portion of the reserves are proved undeveloped. The Riceville
Acquisition had a PV 10% of approximately $5.3 million, using December 31, 1997
prices.
The Shore Merger in June, 1997 added approximately 965 thousand barrels of
oil and 1,364 million cubic feet of gas to Middle Bay's proved reserves. A
portion of the reserves consists of proven behind pipe and
24
<PAGE> 36
proven undeveloped reserves. The Shore Merger had a PV 10% of approximately $6.0
million, using December 31, 1997 prices. The Shore Merger also added
approximately 42,000 net acres of minerals located in South Louisiana, which
were valued at $3.6 million at June 30, 1997.
The Bison Merger in February, 1997 added approximately 951 thousand barrels
of oil and 7,791 million cubic feet of gas to Middle Bay's proved reserves. A
portion of the reserves consists of proven behind pipe and proven undeveloped
reserves. The Bison Merger had a PV 10% of approximately $8.9 million, using
December 31, 1997 prices.
The NPC Merger in December, 1996 added approximately 503 thousand barrels
of oil and 3,139 million cubic feet of gas to Middle Bay's proved reserves. A
portion of the reserves consists of proven behind pipe and proven undeveloped
reserves. The NPC Merger had a PV 10% of approximately $6.0 million, using
December 31, 1996 prices.
Middle Bay is currently in the process of evaluating various corporate
acquisitions and potential mergers in exchange for common stock of Middle Bay.
Management believes that corporate acquisitions and mergers are the fastest way
to achieve Middle Bay's growth goals. In addition to achieving what management
perceives to be a proper critical mass, potential corporate acquisitions or
mergers are also considered as opportunities to build a more diverse oil and gas
property base for further development and exploration.
The price of oil has declined significantly since December 31, 1997 and, in
June, 1998, reached the lowest level in ten years. The posted price of WTI crude
declined from approximately $15 per barrel on December 31, 1997 to approximately
$9 per barrel on June 15, 1998. If oil prices remain at or near these levels,
the funds available for acquisitions could be reduced.
COMPANY FINANCING
Middle Bay has financed its acquisitions with debt proceeds from the Banks,
issuance of convertible preferred stock and issuance of common stock. Middle Bay
currently has approximately $30.6 million borrowed and 1.4 million of
outstanding letters of credit under its current credit facility with the Banks
described under "Business Development," above. In 1997, Middle Bay issued the
remaining $9.0 million in Series A Preferred Stock through its $10.0 million
Preferred Stock Agreement to finance portions of the Bison and Shore mergers.
This completed the funding of the $10.0 million Preferred Stock Agreement with
Kaiser-Francis, which was signed in September, 1996. In 1997, Middle Bay issued
$3.627 million of Series B Preferred Stock to finance a portion of the Shore
Merger. Middle Bay also issued its common stock in connection with the Bison and
Shore Mergers. On January 31, 1998, Kaiser-Francis converted 100% of the Series
A shares into 3,333,334 shares of Middle Bay Common Stock. Middle Bay's drilling
activities have been financed primarily through Middle Bay's cash flow.
Subject to availability of bank financing, Middle Bay will continue to
consider debt-financed acquisition opportunities presented to it. Middle Bay
intends to finance acquisitions by issuing common stock and/or preferred stock
when possible.
COMPETITION, MARKETS AND REGULATION
Competition in the exploration and property acquisition markets is intense.
In seeking to obtain desirable Leases and exploration Prospects, Middle Bay
faces competition from both major and independent oil and gas companies, as well
as from numerous individuals. Many of these competitors have substantial
financial resources available to them, which makes for increased competition.
The ability of Middle Bay to market oil and gas from its wells will depend
upon numerous factors beyond its control, including, but not limited to, the
extent of domestic production and imports of oil and gas, the proximity of
Middle Bay's production to existing pipelines, the availability of capacity in
such pipelines and state and federal regulation of oil and gas production. There
is no assurance that Middle Bay will be able to market all of the oil or gas
produced by it or that favorable prices can be obtained for the oil and gas it
produces. In view of the uncertainties affecting the supply and demand of oil
and gas, Middle Bay is unable to accurately predict future oil and gas prices
and demand, or the overall effect they will have on Middle Bay.
25
<PAGE> 37
Numerous federal and state laws and regulations affect Middle Bay's
operations. In particular, oil and gas production operations are affected by tax
and other laws relating to the petroleum industry and any changes in such laws
and regulations. Some of the rules and regulations carry substantial penalties
for failing to comply. The regulatory burden on the oil and gas industry
increases Middle Bay's cost of doing business. Middle Bay's activities are also
subject to numerous federal, state and local environmental laws and regulations
governing the discharge of materials. In most cases, the applicable regulatory
requirements relate to water and air pollution control or solid waste management
measures. Middle Bay believes the recent trend toward stricter standards in
environmental legislation, regulation and enforcement will continue. To date,
these laws have not had a significant impact on Middle Bay but no assurance can
be given as to the effect of these laws on Middle Bay in the future.
EMPLOYEES
As of May 31, 1998, Middle Bay employed 21 full-time persons. Middle Bay
employs 14 full-time persons in its Houston, Texas office, including four
executive officers, whose functions are associated with management, engineering,
geology, land and legal, accounting, financial planning and administration.
Middle Bay employs five full-time persons in its Wichita, Kansas office,
including one executive officer, a geologist, an engineer and an administrative
assistant. Middle Bay also employs one full-time supervisor for well operations
in Oklahoma and one full-time accountant in Mobile, Alabama.
REAL ESTATE PROPERTIES
Middle Bay owns a historic home in Mobile, Alabama which previously served
as its corporate office before Middle Bay's relocation to Houston, Texas in
November, 1997. Middle Bay has listed the property for sale.
OIL AND GAS PROPERTIES
All of Middle Bay's oil and gas properties, reserves and activities are
located onshore in the continental United States, primarily in Alabama, Kansas,
Louisiana, Oklahoma and Texas. Estimates of total proved net oil or gas reserves
have not been filed with or included in reports to any federal authority or
agency. There are no quantities of oil or gas subject to long-term supply or
similar agreements with foreign governmental authorities.
Middle Bay's largest oil and gas property, in terms of dollar value, is the
Spivey Field acquired in the Bison Merger. The Spivey Field, located in Kingman
and Harper Counties, South Central Kansas, was discovered in 1949. Development
of oil and gas reserves from the Mississippian Chert Formation, at an average
drilling depth of 4,250 feet, has been continual since discovery. Currently,
approximately 585 active wells produce in the field. Great lateral extent, thick
pay sections and long-lived production characterize the reservoir.
The Spivey Field has cumulative gas production of over 75,000 million cubic
feet. Gas is marketed to spot markets and to the Spivey Gas Plant (the "Plant").
Over 95% of Company gas is sold to the Plant under a life of the lease
casinghead tailgate gas contract. Middle Bay owns approximately 11.5% ownership
in the Plant and related gathering system. Warren Petroleum Company, L.P. and
NGC Corporation jointly operate the Plant. Ownership in the Plant is
redetermined annually, based on owner's throughput relative to total throughput.
Plant liquids (propane, butane and natural gas) are marketed from the Plant to
Murphy Energy. Residue gas is sold to KGE (f/k/a Kansas Power and Light) for a
tailgate price of $2.91 per Mcf. The tailgate contract calls for an annual
escalation of $0.02 per Mcf. The Btu factor for residue gas is 1.042. Plant
owners also receive the benefit of buying, stripping and reselling "non-owner"
field gas. The Spivey Field has cumulative oil production of over 66.6 million
barrels of oil. Lease oil is marketed to Koch Oil Company, via truck, and a
bonus above posted prices is received.
Middle Bay operates approximately 80 wells in the Spivey Field from a field
office in Attica, Kansas, staffed by one foreman and two Company pumpers. All
oilfield services are present in the field. Exploration,
26
<PAGE> 38
engineering and land functions are directed from the division office located in
Wichita, Kansas. Middle Bay is continually developing its acreage position of
approximately 8,500 gross acres.
As of December 31, 1997, Middle Bay has identified and independent
engineers have evaluated 22 proven undeveloped locations in the Spivey Field
with a PV 10% value of approximately $2.4 million. At December 31, 1997, the
Plant was valued by independent engineers at $2.9 million PV 10%.
The following table shows proved oil and gas reserves by major field for
Middle Bay's largest producing fields at December 31, 1997. The values represent
the present value of estimated future net cash flows before income taxes,
discounted at 10%, assuming unescalated expenses and prices of $16.18/Bbl and
$2.54/MMBtu attributable to proved reserves at December 31, 1997, as determined
by several independent reserve engineers:
<TABLE>
<CAPTION>
DISCOUNTED PERCENTAGE OIL GAS
PRIMARY PRESENT OF TOTAL RESERVES RESERVES
FIELD NAME/COUNTY/STATE OPERATOR VALUE PRESENT VALUE (BBLS) (MCF)
- ----------------------- ------------ ---------- ------------- -------- --------
(DOLLARS/QUANTITIES IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Spivey
Harper/Kingman, KS.............. Company $ 9,329 30.9% 993 11,415
Riceville Field
Vermillion, LA.................. Murphy 4,958 16.4 50 2,244
Hatters Pond
Mobile, AL...................... Texaco 1,019 3.4 71 187
Wright Field
Vermilion, LA................... Hilcorp 735 2.4 96 150
Murphy Lake
St. Martin, LA.................. Amerada Hess 587 1.9 99 --
Lockhart Crossing
Livingston, LA.................. Amoco 488 1.6 10 270
Polo Field
Noble, OK....................... Lu-Ray 481 1.6 141 5
Abbeville
Vermilion, LA................... Company 473 1.6% 3 279
Okeene N.W.
Major, OK....................... Ricks Expl. 443 1.5 11 507
N. Frisco City
Monroe, AL...................... Torch Energy 443 1.5 33 32
Others.......................... Various 11,223 37.2 1,426 3,330
------- ----- ----- ------
Total................. $30,179 100.0% 2,933 18,419
======= ===== ===== ======
</TABLE>
December 31, 1997, the Banks held a first mortgage on all of the fields
listed in the above table. The Banks also have a first mortgage on additional
fields not individually listed above which in total gives the Banks a first
mortgage on substantially all of Middle Bay's and Enex's total Proved Reserves.
LOUISIANA FEE MINERAL ACREAGE
In the Shore Merger, Middle Bay acquired approximately 42,000 net mineral
acres, situated in Terrebonne, Lafourche and St. Mary Parishes in Louisiana. Of
the total acreage, 39,769 acres are non-producing and the remainder is held by
production under existing leases. The nonproducing acreage is located in the
following parishes: 20,587 in Terrebonne (Montegut and Houma areas), 11,128
acres in Lafourche (Raceland and Valentine areas) and 8,054 acres in St. Mary
Parish (Charenton area). The nonproducing acreage currently under lease and/or
option has expiration dates as follows: 17,835 acres in 1998 and 5,722 acres in
2000. As of December 31, 1997, 16,212 acres were not under lease. Royalty
interest in the leases covering the nonproducing minerals ranges from 20% to
25%. The mineral servitude prescription dates are
27
<PAGE> 39
estimated by Middle Bay to be as follows: 620 acres prescribed in 1997, 6,226
acres in 1999, 5,286 acres in 2002, 4,145 acres in 2004, 1,121 acres in 2005,
1,145 acres held in perpetuity and the remaining acreage has prescription
interrupted by production. Effective April 1, 1992, Shore Oil Company sold the
production rights under tracts producing at that time and does not receive
royalty income from the sale of oil or gas on those tracts. Over 80% of the
nonproducing minerals have been covered by 3-D seismic shot by third parties and
provided to Middle Bay at no cost. During the period July 1, 1997 through
December 31, 1997, Middle Bay received approximately $975,000 in lease bonus,
delay rental and seismic option income on the acreage. An independent oil and
gas engineering firm valued the acreage as of June 30, 1997 at $3,627,000. One
unsuccessful exploratory well in Lafourche Parish, the Shore Oil Company #1, was
drilled on the fee mineral acreage in 1997 and abandoned in February, 1998. In
Terrebonne Parish, two unsuccessful exploratory wells, the Middle Bay Oil Co. #1
and Shore Oil Co. #1, were abandoned in February and May, 1998, respectively.
PRODUCTIVE WELLS AND ACREAGE
The following table depicts the number of gross and net producing wells and
related Developed and Undeveloped Acreage in which Middle Bay owned an interest
for the period ended December 31, 1997 Undeveloped Acreage is oil and gas
acreage (including, in certain instances, rights in one or more horizons which
may be penetrated by existing well bores, but which have not been tested) to
which Proved Reserves have not been assigned by independent petroleum engineers.
Middle Bay's net Developed Acreage is located primarily in Oklahoma, Texas,
Alabama, New Mexico and Kansas. Middle Bay's net Undeveloped Acreage is located
primarily in Kansas.
<TABLE>
<CAPTION>
ACREAGE
-----------------------
DEVELOPED UNDEVELOPED
--------- -----------
<S> <C> <C>
Gross Acres................................................. 239,646 9,758
Net Acres................................................... 20,337 8,643
PRODUCTIVE WELLS
-----------------------
OIL GAS
--------- -----------
Gross Wells................................................. 797.00 184.00
Net Wells................................................... 68.67 30.13
</TABLE>
Excluded from the acreage data are approximately 44,041 net mineral acres
owned by Middle Bay, all of which are considered to have potential for oil and
gas exploration.
28
<PAGE> 40
PRODUCTION, PRICES AND COSTS
Below is a summary of the net production of oil and gas, average sales
prices and average production costs during each of the last three fiscal years.
Middle Bay is not obligated to provide a fixed and determined quantity of oil
and gas in the future under existing contracts or agreements. During the last
three fiscal years, Middle Bay has not had, nor does it now have, any long-term
supply or similar agreements with governments or authorities.
<TABLE>
<CAPTION>
FISCAL YEARS ENDED DECEMBER 31,
--------------------------------
1995 1996 1997
-------- -------- ----------
<S> <C> <C> <C>
Crude Oil and Natural Gas Production:
Oil (Bbls)................................................ 107,025 108,626 253,849
Gas (Mcf)................................................. 916,954 982,709 1,929,298
Average Sales Prices:
Oil (per Bbl)............................................. $ 16.17 $ 20.26 $ 18.38
Gas (per Mcf)............................................. $ 1.52 $ 2.28 $ 2.39
Average Production Costs Per BOE(1)......................... $ 5.25 $ 5.36 $ 6.69
</TABLE>
- ---------------
(1) The components of production costs may vary substantially among wells,
depending on the methods of recovery employed and other factors, but
generally include severance taxes, administrative overhead, maintenance and
repair, labor and utilities.
DRILLING ACTIVITIES
During the periods indicated, Middle Bay drilled or participated in the
drilling of the following productive and nonproductive Exploratory and
Development Wells. All of Middle Bay's drilling and production activities are
conducted with independent contractors.
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-----------------------
1995 1996 1997
----- ------ ------
<S> <C> <C> <C>
Exploratory Wells:
Productive
Gross.................................................. 0 31 8
Net.................................................... 0 0.987 0.452
Dry
Gross.................................................. 0 18 11
Net.................................................... 0 0.675 1.280
Development Wells:
Productive
Gross.................................................. 0 4 17
Net.................................................... 0 0.866 5.627
Dry
Gross.................................................. 2 1 6
Net.................................................... 0.418 0.250 4.150
Total Wells:
Productive
Gross.................................................. 0 35 25
Net.................................................... 0 1.853 6.079
Dry
Gross.................................................. 2 19 17
Net.................................................... 0.418 0.925 5.430
</TABLE>
During May, 1998, two developmental wells and one exploratory well were
drilled. The developmental wells are in the Frymire Waterflood in the Lake
Trammel Field in Nolan County, Texas and were successfully
29
<PAGE> 41
completed as producers. The exploratory well was the Shore Oil Co. #1 in
Terrebonne Parish, Louisiana which was abandoned as a dry hole. All three wells
were spudded in April, 1998.
The exploratory well (PMMI #1) on the Sherburne Prospect, Point Coupee
Parish, Louisiana, reached total depth on April 20, 1998 and was completed in
the Sparta formation in June, 1998. Middle Bay has a 12.5% working interest in
the well.
RESERVES
Note 11 to Middle Bay's financial statements presents, among other
disclosures prepared pursuant to Statement of Financial Accounting Standards No.
69, the estimated net quantities of Middle Bay's proved oil and gas reserves and
the standardized measure of discounted future net cash flows attributable to
such reserves as of December 31, 1997. At December 31, 1997, Middle Bay's net
Proved Reserves consisted of 2,933 thousand barrels of oil and 18,419 million
cubic feet of gas, and net Proved Developed Reserves consisted of 2,580 thousand
barrels of oil and 14,251 million cubic feet of gas. At December 31, 1997, the
present value discounted at 10% for Middle Bay's Proved oil and gas reserves,
before income taxes, was approximately $30,179,000. (See Note 11 to Middle Bay's
financial statements for additional detail on Middle Bay's oil and gas
reserves.) Management of Middle Bay, however, cautions against using this data
to determine the fair value of Middle Bay's oil and gas properties or for any
other purpose because the price of oil and gas can be volatile. The present
value was computed using December 31, 1997 base oil prices of $16.18 per Bbl and
base gas prices of $2.54 per MMBtu. Base prices were adjusted for certain
properties that either received a price above or below the base price. There
were no estimates or reserve reports of Middle Bay's proved oil and gas reserves
filed with any governmental authority or agency during the year ended December
31, 1997.
The following table sets forth the standardized measure (in thousands of
dollars) of future net cash flows of Proved Reserves and total recoverable
volumes of oil and gas from Proved Reserves attributable to Middle Bay's
interest in oil and gas wells for the years ended December 31, 1997 through
1995:
<TABLE>
<CAPTION>
RECOVERABLE
VOLUMES
----------------
STANDARDIZED OIL GAS
YEAR ENDED MEASURE (MBBLS) (MMCF)
- ---------- ------------ ------- ------
<S> <C> <C> <C>
December 31, 1997....................................... $24,493 2,933 18,419
December 31, 1996....................................... $17,863 1,389 8,964
December 31, 1995....................................... $ 9,250 778 6,371
</TABLE>
The increases in the standardized measure from 1995 to 1996 and 1996 to
1997 are due primarily to the NPC Merger in 1996 and the Bison and Shore Mergers
and Riceville Acquisition in 1997. For a detail of changes in oil and gas
reserves for the year, refer to Note 11 to Middle Bay's financial statements.
The reserve data set forth in this Proxy Statement/Prospectus represents
only estimates. Reserve engineering is a subjective process of estimating
underground accumulations of crude oil and natural gas that cannot be measured
in an exact manner. The accuracy of any reserve estimate is a function of the
quality of available data and of engineering and geological interpretation and
adjustment. As a result, estimates of different engineers often vary. In
addition, results of drilling, testing and production subsequent to the date of
an estimate may justify revisions of such estimates. Accordingly, reserve
estimates often differ from the quantities of crude oil and natural gas that are
ultimately recovered. Estimates of economically recoverable oil and natural gas
reserves and of future net revenues are based upon a number of variables and
assumptions, including future prices of oil and gas, all of which may vary
considerably from actual results. The reliability of such estimates is highly
dependent upon the accuracy of the assumptions from which they were based.
LEGAL PROCEEDINGS
Middle Bay is a defendant in various legal proceedings which are considered
routine litigation incidental to Middle Bay's business, the disposition of which
management believes will not have a material effect on the financial position or
result of operations of Middle Bay.
30
<PAGE> 42
RECENT DEVELOPMENTS
On March 27, 1998, in connection with the closing of the Tender Offer,
Middle Bay and Enex entered into a Credit Agreement with Compass Bank and Bank
of Oklahoma, N.A. for a new revolving line of credit. The $100 million facility
has a present borrowing base of $32.6 million. The borrowing base is required to
be reduced by $330,000 per month beginning May 1, 1998 and ending October 1,
1998. The borrowing base and the scheduled reduction amount shall be
redetermined semi-annually by unanimous consent of the lenders beginning October
1, 1998. The principal is due at maturity -- April 1, 2001. Monthly principal
payments are made as required in order that the outstanding principal balance
does not exceed the borrowing base. Interest is payable monthly and is
calculated at the prime rate. Middle Bay may also elect to calculate interest
under the Libor rate, as defined in the loan agreement. The Libor rate increases
by (a) 2.00% if the outstanding loan balance and letters of credit are equal to
or greater than 75% of the borrowing base, (b) 1.75% if the outstanding loan
balance and letters of credit are less than 75% or greater than 50% of the
borrowing base, and (c) 1.50% if the outstanding loan balance and letters of
credit are equal to or less than 50% of the borrowing base. Libor interest is
payable at maturity of the Libor loan, which cannot be less than thirty days.
At May 31, 1998, Middle Bay had borrowed $30,918,605 and had $1,350,432 of
outstanding letters of credit. As of May 31, 1998, Middle Bay is paying Libor
plus 2.00% on a sixty-day Libor loan for $29,969,605 and prime on $949,000.
On April 16, 1998, Middle Bay closed an Asset Purchase Agreement with
Service Drilling Company, L.L.C. ("Service Drilling") and certain of its
affiliates whereby Middle Bay acquired substantially all of the assets of
Service Drilling and its affiliates in exchange for Middle Bay Common Stock and
cash. Service Drilling and its affiliates are privately-owned domestic oil and
gas development and production companies with oil and gas properties located
primarily in Oklahoma and the Texas Panhandle. Pursuant to the Asset Purchase
Agreement, Middle Bay issued 666,000 shares of its common stock and paid an
aggregate cash consideration of $6,500,000, subject to post-closing adjustments,
in exchange for the assets. The economic effective date of this transaction was
March 1, 1998. Asset values were determined by estimating the discounted reserve
value of the acquired properties and through negotiation. The cash portion of
the consideration was financed through Middle Bay's bank credit facility and
cash on hand.
BUSINESS OF ENEX
GENERAL
Enex was incorporated on August 17, 1979 in Colorado. On June 30, 1992,
Enex reincorporated in Delaware. Enex is engaged in the business of acquiring
interests in producing oil and gas properties and managing oil and gas income
limited partnerships. Enex's operations are concentrated in a single industry
segment.
Enex's principal executive offices are maintained at 800 Rockmead Drive,
Three Kingwood Place, Kingwood, Texas 77339. The telephone number at these
offices is (281) 358-8401. Enex has no regional offices.
As of March 1, 1998, Enex and one of its subsidiaries, Enex Securities
Corporation, employed 18 persons. All employees are engaged on a full-time
basis.
Since 1982, Enex has financed most of its oil and gas activities through
the public sale of interests in limited partnerships formed to purchase and hold
working interests and other operating and nonoperating interests in producing
oil and gas properties (the "Partnerships"). Until 1986, most of Enex's
ownership of proved reserves was derived through the purchase of producing
properties by the Partnerships. Effective June 30, 1997, thirty-four of the
limited partnerships ("Predecessor Partnerships") were consolidated to form the
Enex Consolidated Partners, L.P. (the "Consolidated Partnership"). Enex acts as
general partner in and contributed capital to Enex Consolidated Partners, L.P.
As general partner, Enex has a 4.1% interest in the net revenues and gains
generated by properties owned by Enex Consolidated Partners, L.P. As general
partner,
31
<PAGE> 43
Enex is obligated to periodically offer to repurchase the interests of those
limited partners electing to present their interests to Enex.
Prior to 1995, fifty-six Partnerships commenced operations with aggregate
investor subscriptions of $223.5 million received from 69,139 investors,
including reinvestors. Producing property acquisitions for those Partnerships
totaled approximately $200.7 million.
During 1995, four partnerships, with aggregate investor subscriptions
totaling $33.0 million, were liquidated. During 1996, two additional
partnerships, with aggregate investor subscriptions totaling $11.8 million, were
liquidated. And during 1997, five additional partnerships were liquidated with
investor subscriptions totaling $9.3 million. Effective June 30, 1997, the
remaining thirty-four partnerships were consolidated into Enex Consolidated
Partners, L.P. Enex's receivables from the Predecessor Partnerships and its
general partner capital balances in the Predecessor Partnerships were converted
into limited partnership interests in the Consolidated Partnership. These
interests, combined with Enex's limited partnership interests in the Predecessor
Partnerships, gave Enex a 55.5% limited partner interest in the new Consolidated
Partnership, together with a 4.1% carried revenue interest as the general
partner of the Consolidated Partnership.
Approximately 73% of Enex's estimated future net revenues from proved
reserves at December 31, 1997 is attributable to its interests in the
Consolidated Partnership, and approximately 27% is attributable to the
properties owned directly by Enex after deducting the minority interest share of
the Consolidated Partnership.
In acquiring properties for its own account, Enex is required to avoid
conflicts of interest with the Partnerships for which it acts as general
partner. Such requirements may restrict Enex's operations for its own account.
Enex is also contingently liable for partnership obligations.
Due to the consolidation of the thirty-four Predecessor Partnerships, which
resulted in Enex obtaining a 56.2% limited partnership interest in the
Consolidated Partnership, the results of operations and financial condition of
the Consolidated Partnership are reflected in the accompanying financial
statements on a fully consolidated basis with Enex subsequent to June 30, 1997.
COMPETITION
The business of exploring for, developing and producing oil and gas is
intensely competitive. Enex competes with companies which have greater financial
resources, larger staffs and labor forces, more equipment for exploration and
longer operating experience than Enex. The oil and gas industry is dominated by
a number of companies with greater assets and resources than Enex.
MARKETING AND PRICES
The marketing and prices of oil and gas found and produced by Enex are
affected by a number of factors which are beyond Enex's control, the exact
nature of which cannot be accurately predicted. These factors include the
quantity and price of crude oil imports, fluctuating supply and demand, the
availability of adequate pipeline and other transportation facilities, the
marketing of competitive fuels, state and federal regulation of oil and gas
production, and distribution and other matters affecting the availability of a
ready market. All of these factors are extremely volatile. In addition, in
recent years there have been surpluses in crude oil and natural gas supplies
which have caused a decline in oil and gas prices.
ENVIRONMENTAL AND CONSERVATION REGULATION
State regulatory authorities in the states in which Enex owns producing
properties are empowered to make and enforce regulations to prevent waste of oil
and gas and to protect correlative rights and opportunities to produce oil and
gas between owners of a common reservoir. Each of such regulatory authorities
also regulates the amount of oil and gas produced by assigning allowable rates
of production, which may be increased or decreased in accordance with supply and
demand. Requirements regarding the prevention and clean-up of pollution and
similar environmental matters are also generally applicable.
32
<PAGE> 44
The existence of such regulations has had no material adverse effect on
Enex's operations to date, and the cost of compliance has not yet been material.
There are no material administrative or judicial proceedings arising under such
laws or regulations pending against Enex. Enex is unable to assess or predict
the impact that compliance with environmental and pollution control laws and
regulations may have on its future operation, capital expenditures, earnings or
competitive position.
RECENT TAX LAWS
The operations of Enex are affected by federal income tax laws,
particularly those provisions of the Internal Revenue Code of 1986, as amended,
which provide certain tax benefits to owners of economic interests in oil and
gas properties. In general, the major sources of federal income tax deduction
available to Enex are the deductions for the greater of cost depletion or
percentage depletion, if available, depreciation of tangible lease and well
equipment and the deduction for intangible drilling and development costs.
Enex is subject to regular income tax at graduated rates up to a maximum
34% rate. Additionally, Enex may also be subject to the corporate alternative
minimum tax which is imposed at a rate of 20%. Tax preference items which may
cause Enex to incur the alternative minimum tax include the following:
(1) excess of accelerated depreciation over depreciation using the
alternative minimum tax lives and method;
(2) the limitation on the deduction of net operating losses to 90% of
Enex's alternative minimum taxable income (with the disallowed portion of
the net operating loss carried over to other years); and
(3) 75% of the excess of Enex's adjusted current earnings over its
alternative minimum taxable income (determined without regard to such
adjustment and prior to reduction by operating losses).
OIL AND GAS PROPERTIES
Until 1986, Enex had acquired most of its interests in producing oil and
gas properties through purchases made by the Partnerships. Prior to 1995, the
Partnerships acquired approximately $200.7 million of producing oil and gas
properties. Effective June 30, 1997, thirty-four limited partnerships
consolidated to form Enex Consolidated Partners, L.P. in which Enex, as general
partner, owns a 4.1% interest in net revenues and gains generated by properties
owned by the Consolidated Partnership in addition to a 56.2% limited partnership
interest.
In addition to Partnership activities, Enex owns interests in 220 oil and
gas productive properties for its own account and is the operator of 98
properties. The total properties for its own account and the Consolidated
Partnership include interests in more than 11,000 producing wells in 15 states.
As general partner, Enex has a 4.1% interest in the net revenues and gains
generated by the Partnerships' properties in addition to its 56.2% limited
partnership interest in the Consolidated Partnership. Unless otherwise
indicated, quantitative information contained in this report regarding Enex's
oil and gas properties, the production therefrom and related data includes
Enex's indirect interest in the properties owned by the Partnership.
The producing oil and gas properties in which Enex owns interests are all
located within the United States. Enex's interests in these properties
(including properties in which Enex's interest is derived through the
Consolidated Partnership for which it acts as general partner) at December 31,
1997 are summarized below.
<TABLE>
<CAPTION>
UNDEVELOPED
DEVELOPED ACRES ACRES
---------------- --------------
GROSS NET GROSS NET
------- ------ ------ -----
<S> <C> <C> <C> <C>
Working Interests........................................... 350,685 15,028 6,329 3,607
Royalty Interests........................................... 553,988 2,594 11,949 2,423
</TABLE>
"Developed acres" are acres spaced or assigned to productive wells.
33
<PAGE> 45
"Undeveloped acres" are those leased acres on which wells have not been
drilled or completed to a point that permits the production of commercial
quantities of oil and gas, regardless of whether such acreage contains proved
reserves.
A "gross acre" is an acre in which an interest is owned. The number of
gross acres is the total number of acres in which such interest is owned.
A "net working interest acre" is deemed to exist when the sum of fractional
working interests owned in gross acres equals one. The number of net working
interest acres is the sum of fractional working interests owned in gross acres
expressed as a whole number.
A "net royalty acre" is deemed to exist when the sum of fractional royalty
interests owned in gross acres equals one. The number of net royalty acres is
the sum of fractional royalty interests owned in gross acres expressed as a
whole number.
PROPERTY ACQUISITIONS
The following acquisitions were made by Enex during 1995:
East Seven Sisters
Acquisition: Royalty interests in the Gorman Gas Unit in Duval
County, Texas were purchased from four managed
limited partnerships effective December 1, 1995
for $660,290.
Blair Acquisition: Working interests in nine wells located in WWW
Field, Ward County, Texas were purchased from two
managed limited partnerships effective December
1, 1995 for $18,450. This acquisition was sold in
1996.
Comite Acquisition: Overriding royalty interests in four gas wells
located in East Baton Rouge Parish, Louisiana,
were purchased from four managed limited
partnerships for $89,880 effective December 1,
1995. This acquisition was sold in 1996.
No acquisitions were made by Enex during 1996. The following acquisitions
were made by Enex during 1997.
Corinne Acquisition: Royalty and mineral interest in 16 wells in Corinne
Field, Monroe County, Mississippi, were purchased
from one managed limited partnership for $78,750,
effective December 1, 1997.
Byrum B Acquisition: An overriding royalty interest in the Byrum 1-28
well located in Ononadago Field, Ingham County,
Michigan was purchased for $15,000 from one of
the managed limited partnerships, effective
December 1, 1997.
Brighton Acquisition: Working interests in two oil wells located in
Brighton Field, Livingston County, Michigan were
purchased for $23,520 from one of the managed
limited partnerships.
Elmac Acquisition: A working interest in three wells in Otsego County,
Michigan was purchased from three managed limited
partnerships for $67,314, effective December 1,
1997.
Speary Acquisition: A working interest in seven wells located in Karnes
County, Texas were purchased from one of the
managed limited partnerships for $55,000,
effective December 1,1997.
34
<PAGE> 46
NET OIL AND GAS PRODUCTION
The following table shows for the years ended December 31, 1997, 1996 and
1995, the approximate production attributable to Enex's oil and gas interests,
including interests derived through Enex's interests in the Partnerships. The
figures in the table represent "net production"; i.e., production owned by Enex
or the Partnerships and produced to Enex's interest after deducting royalty and
other similar interests. All production occurred in the United States.
<TABLE>
<CAPTION>
1995 1996 1997(3)
--------- --------- ---------
<S> <C> <C> <C>
Crude oil and condensate (Bbls)............................. 200,778 177,793 277,229
Natural gas -- leasehold or royalty (Mcf)................... 1,671,517 1,649,530 1,735,704
Natural gas liquids (Bbls)(1)............................... 35,388 34,316 33,019
Natural gas -- gas plant sales (Mcf)(1)..................... 30,899 232,778 220,193
</TABLE>
The following table sets forth Enex's average sales price per barrel of
oil, per Mcf of gas, per barrel of natural gas liquids ("NGL"), per Mcf of gas
plant gas sales and average production cost per unit produced for the years
ended December 31, 1997, 1996 and 1995:
<TABLE>
<CAPTION>
1995 1996 1997
------ ------ ------
<S> <C> <C> <C>
Average sales price per Bbl of crude oil and condensate..... $15.82 $19.42 $17.20
Average sales price per Mcf of natural gas.................. 1.64 2.32 2.49
Average production cost per equivalent barrel of
production................................................ 5.49 6.19 6.93
Average sales price per Bbl of NGL(1)....................... 9.07 13.34 12.16
Average sales price per Mcf of gas plant gas(1)............. 1.51 1.96 2.73
Average production cost per equivalent Bbl of NGL
production(1)(2).......................................... 6.89 9.10 11.35
</TABLE>
- ---------------
(1) Natural gas liquids production and gas plant gas sales were obtained through
gas processing plant ownership rather than through leasehold ownership.
(2) Includes cost of gas purchased at plants for processing.
(3) The 1997 results include the recognition of minority interest in Enex
Consolidated Partners, L.P. on a fully consolidated basis after June 30,
1997.
The following table shows, as of December 31, 1997, the approximate number
of gross and net producing oil and gas wells in which Enex own interests,
including wells in which Enex's interest is derived through its interests in the
Consolidated Partnership:
<TABLE>
<CAPTION>
PRODUCTIVE OIL WELLS PRODUCTIVE GAS WELLS
- ------------------------------ -----------------------------
NET WORKING NET NET WORKING NET
GROSS INTEREST ROYALTY GROSS INTEREST ROYALTY
WELLS WELLS WELLS WELLS WELLS WELLS
- ------ ----------- ------- ----- ----------- -------
<S> <C> <C> <C> <C> <C>
11,145.. 80.180 4.723 1,147 53.657 15.573
</TABLE>
"Productive wells" are producing wells and wells capable of production,
including shut-in wells.
A "gross well" is a well in which an interest is held. The number of gross
wells is the total number of wells in which an interest is owned.
A "net working interest ('W.I.') well" is deemed to exist when the sum of
fractional interests owned in gross W.I. wells equals one. The number of net
W.I. wells is the sum of the fractional interests owned in gross W.I. wells,
expressed as whole numbers and fractions thereof.
A "net royalty well" is deemed to exist when the sum of fractional
interests owned in gross royalty wells equals one. The number of net royalty
wells is the sum of the fractional interests owned in gross royalty wells,
expressed as whole numbers and fractions thereof.
35
<PAGE> 47
OIL AND GAS RESERVES
Proved oil and gas reserves reported herein for Enex are based primarily on
engineering studies performed by Enex's engineering staff. Proved oil and gas
reserves reported herein for the Partnerships and for Enex's share of such
Partnership reserves are based primarily on engineering studies performed by the
petroleum engineering consulting firm of H. J. Gruy and Associates, Inc. The
reserves included in this report are estimates only and should not be construed
as exact quantities. Future conditions may affect recovery of estimated reserves
and revenues, and all reserves may be subject to revision as more performance
data becomes available. The proved reserves used in this report conform to the
applicable definitions promulgated by the Securities and Exchange Commission. No
major discovery or other favorable or adverse event that is believed to have
caused a significant change in the estimated proved reserves has occurred since
December 31, 1997.
DRILLING ACTIVITIES
In 1997, Enex did not participate in any significant developmental drilling
for its own account or as an operator of Partnership properties.
In 1996, Enex and its affiliated Limited Partnerships participated in the
drilling of twelve oil wells and six gas wells, all of which were successful.
Enex owns a direct interest in two of the oil wells drilled -- at SW Muldoon
field, Fayette County, Texas and North Buck Draw field, Campbell County,
Wyoming. In conjunction with the Partnerships, three gas wells and one oil well
were drilled at Sibley field, Webster Parish, Louisiana. Two oil wells were
drilled in Oklahoma, and the remainder of the wells drilled were located in
various fields in Texas.
In 1995, Enex did not participate in any significant developmental drilling
for its own account or as an operator of Partnership properties.
CURRENT ACTIVITIES
Enex is continuing to acquire interests in producing oil and gas properties
and to operate properties, both for its own account and for its managed limited
partnerships. In February 1998, Enex received a tender offer from Middle Bay for
all of Enex's outstanding shares at $15 cash per share. This tender offer
expired on March 20, 1998 and was accepted by approximately 79% of the common
shareholders. As such, the control of Enex was assumed by Middle Bay at the
closing of the tender offer on March 27, 1998.
OFFICES
Enex's corporate headquarters are at 800 Rockmead Drive, Three Kingwood
Place, Kingwood, Texas, where it leases 10,219 square feet of office space.
LEGAL PROCEEDINGS
Enex and one of its managed limited predecessor partnerships in which Enex
owned general and limited partnership interests were named as parties to a
lawsuit filed by Texas Crude, Inc. ("Texas Crude"). Texas Crude sought to
recover legal and other fees totaling $600,000. In August 1993, a judgement was
granted in favor of Texas Crude for $414,203, plus interest by the 101st
Judicial District Court of Texas. Enex appealed the verdict and filed a
counterclaim for funds that were wrongfully withheld by Texas Crude. In December
1994, the Fifth District Court of Appeals reversed the judgement of the trial
court and rendered judgement in favor of Enex and the Partnership. Accordingly,
a receivable was established. In 1997, Enex recognized $58,810 of interest from
the outstanding judgement which totaled $338,860 at December 31, 1997.
There are no other material pending legal proceedings to which Enex or any
of its subsidiaries are a party or to which any of their properties are subject.
36
<PAGE> 48
SELECTED FINANCIAL DATA
The following selected financial data for Middle Bay for the years ended
December 31, 1996 and 1997 and the three months ended March 31, 1997 and 1998
are derived from Middle Bay's audited and unaudited Financial Statements,
respectively. Operating results for the three months ended March 31, 1997 and
1998 are not necessarily indicative of the results that may be expected for the
entire fiscal year ended December 31, 1998. The selected financial data below
should be read in conjunction with Middle Bay's audited and unaudited Financial
Statements and related Notes thereto and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" contained elsewhere in this
Proxy Statement/Prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEARS ENDED DECEMBER 31, MARCH 31,
-------------------------- -------------------------
1997 1996 1998 1997
------------ ----------- ----------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C>
Revenue
Oil and gas sales........................ $ 10,213,047 $ 4,474,786 $ 2,632,248 $ 1,875,847
Delay rental and lease bonus income...... 975,347 -- -- --
Other.................................... 244,601 411,635 124,642 25,531
------------ ----------- ----------- -----------
Total Revenue............................ 11,432,995 4,886,421 2,756,890 1,901,378
Costs and Expenses
Operating expenses, including production
taxes................................. 3,848,627 1,516,011 1,184,048 642,847
Exploration costs........................ 222,608 -- 745,713 --
Impairment expense....................... 21,147,823 277,483 -- --
Dryhole costs............................ 1,118,838 428,598 468,951 181,338
Depletion, depreciation and
amortization.......................... 4,567,063 1,184,713 1,118,136 479,045
Interest................................. 671,081 504,945 255,453 135,875
Stock compensation expense............... 202,500 -- 33,750 --
General and administrative............... 2,361,124 662,288 1,093,403 421,854
Other.................................... 317,469 32,012 -- --
------------ ----------- ----------- -----------
Total Expenses........................... 34,457,133 4,606,050 4,899,454 1,860,959
Income (loss) before income taxes.......... (23,024,138) 280,371 (2,142,564) 40,419
Income tax expense (credit)................ (7,444,798) 74,871 (728,472) --
------------ ----------- ----------- -----------
Net income (loss).......................... (15,579,340) 205,500 (1,414,092) 40,419
Dividends to preferred stockholders........ 604,712 -- 67,945 62,889
------------ ----------- ----------- -----------
Net income (loss) available to
stockholders............................. $(16,184,052) $ 205,500 $(1,482,037) $ (22,470)
============ =========== =========== ===========
Net income (loss) per common share
Basic.................................... (4.76) 0.15 (0.22) (0.01)
Diluted.................................. (4.76) 0.14 (0.22) (0.01)
Total assets............................... 37,252,572 13,184,980 61,737,748 25,355,156
Long-term debt............................. 9,714,713 5,158,477 24,499,568 5,289,586
Redeemable common stock.................... -- 421,179 -- 421,179
Dividends per share........................ -- -- -- --
</TABLE>
37
<PAGE> 49
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEARS ENDED DECEMBER 31, MARCH 31,
-------------------------- -------------------------
1997 1996 1998 1997
------------ ----------- ----------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C>
Pro-Forma Operating Statement Information
(Reflecting the Merger)
Pro-forma income (loss) before income
taxes.................................... $(21,703,337) $(2,770,302)
Pro-forma minority interest................ $ (1,012,449) $ (348,190)
Pro-forma provision for income taxes....... $ (7,339,958) $ (823,518)
Pro-forma net income (loss)................ $(15,375,828) $(2,294,974)
============ ===========
Pro-forma preferred dividends.............. $ 778,044 $ 67,945
Pro-forma net income (loss) available to
stockholders............................. $(16,153,872) $(2,362,919)
Pro-forma net income (loss) per common
share
Basic.................................... $ (3.26) $ (0.32)
============ ===========
Diluted.................................. $ (3.26) $ (0.32)
============ ===========
Pro-forma average common shares
Basic.................................... 4,959,664 7,274,936
============ ===========
Diluted.................................. 4,959,664 7,274,936
============ ===========
</TABLE>
38
<PAGE> 50
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with Middle Bay's
Financial Statements and Notes thereto set forth herein.
RESULTS OF OPERATIONS
The factors that most significantly affect Middle Bay's results of
operations are (i) the sales price of crude oil and natural gas, (ii) the level
of production volumes, (iii) the level of lease operating expenses, and (iv) the
level of interest rates. Sales of production and level of borrowing are
significantly impacted by Middle Bay's ability to maintain or increase its
production from existing oil and gas properties or through its exploration and
development activities. Sales prices received by Middle Bay for oil and gas have
fluctuated significantly from period to period. The fluctuations in oil prices
during these periods reflect market uncertainty regarding the inability of OPEC
to control the production of its member countries, production from Iraq, as well
as concerns related to the global supply and demand for crude oil. Gas prices
received by Middle Bay fluctuate generally with changes in the spot market price
for gas. Relatively modest changes in either oil or gas prices significantly
impact Middle Bay's results of operations and cash flow and could significantly
impact Middle Bay's borrowing capacity.
The table below details the changes in oil and gas revenues, excluding
plant and other revenues, caused by price and volume changes for the years
ending December 31, 1997, 1996 and 1995.
<TABLE>
<CAPTION>
1997 1996 1995
---------- -------- ---------
<S> <C> <C> <C>
Oil Revenues
Change due to volume...................................... $2,942,138 $ 32,436 $ 576,865
Change due to price....................................... (478,122) 437,285 102,558
Total change.............................................. 2,464,016 469,271 679,423
Gas Revenues
Change due to volume...................................... $2,161,383 $149,921 $ 277,755
Change due to price....................................... 201,483 708,386 (182,391)
Total change.............................................. 2,362,866 858,307 95,364
</TABLE>
FISCAL 1997
Total revenues for the twelve months ended December 31, 1997, of
$11,433,000, were $6,546,000 higher than the same period in 1996. The increase
in total revenues was due primarily to higher oil and gas revenues of
$4,827,000, consisting primarily of a $2,464,000 increase in oil revenues and a
$2,363,000 increase in gas revenues. Also contributing to the revenue increase
was $920,000 in revenue from gas processing at the gas plant located at the
Spivey Field and $975,000 in lease bonus and delay rental income on the fee
mineral acreage in Louisiana. The gas processing plant was acquired in the
February 28, 1997 Bison Merger. The increase in oil and gas revenues from 1996
to 1997 was primarily the result of increases in production which resulted from
the Bison and Shore Mergers. Production from the Bison and Shore Mergers is
included from March 1 and July 1, 1997, respectively. Production of oil and gas
for the twelve months ended December 31, 1997, increased 133% and 96%,
respectively, over the comparable period. During the twelve-month period ended
December 31, 1997, Middle Bay sold 254,000 barrels of oil and 1,929,000 Mcf of
gas, as compared to 109,000 barrels of oil and 983,000 Mcf of gas for the
comparable period. Oil production for 1997 was 145,000 barrels higher due
primarily to a 58,000 barrel increase from the Bison Merger and a 76,000 barrel
increase from the Shore Merger. Gas production in 1997 was 946,000 Mcf higher
due primarily to a 521,000 Mcf increase from the Bison Merger, a 335,000 Mcf
increase from the Shore Merger and a 188,000 Mcf increase from the Riceville
Acquisition. The price received on the gas sold in 1997 of $2.39 per Mcf was
slightly higher than the $2.28 per Mcf received in the comparable period. Oil
prices in 1997 of $18.38 per barrel were 9% lower than the $20.26 per barrel
received in the comparable period.
39
<PAGE> 51
Middle Bay received approximately $975,000 in lease bonus and delay rental
income on the fee mineral acreage acquired in the Shore Merger over the
six-month period ending December 31, 1997.
The increase in total revenues of $6,546,000 was less than the increase in
total expenses, before income taxes, of $29,851,000. The principal reasons for
the increase in the overall level of expenses are (1) increased oil and gas
property impairment charge of $20,870,000; (2) increased lease operating and
depletion expenses of $5,715,000 from properties acquired in the Bison and Shore
Mergers which are included with Middle Bay's expenses from March 1 and July 1,
respectively; and (3) increased G&A expenses of $1,699,000 due to increased
number of employees from the Bison and Shore Mergers and higher overall
administrative expenses due to the increased level of activity.
In the fourth quarter of 1997, Middle Bay charged to impairment expense
$21,148,000 versus $278,000 in the comparable period. The impairment expense was
computed applying the guidelines of FAS #121 "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed of." This statement
requires that long-lived assets be reviewed for impairment when events or
changes in circumstances indicate that the carrying value of such assets may not
be recoverable. This review consists of a comparison of the carrying value of
the asset with the asset's expected future undiscounted cash flows without
interest costs. Expected undiscounted future cash flow is defined as "the future
cash inflows expected to be generated by an asset less the future cash outflows
expected to be necessary to obtain those inflows (undiscounted and without
interest charges)." Independent oil and gas engineers determine the expected
future undiscounted cash flows. To determine the expected future undiscounted
cash flows of each property, the engineers estimated each property's oil and gas
reserves, relied on certain information supplied by Middle Bay regarding the oil
and gas reserves, applied certain assumptions regarding price and cost
escalations, and applied certain discount factors for risk, location, type of
ownership interest, category of reserves, operational characteristics and other
factors. Estimates of expected future undiscounted cash flows are to represent
management's best estimate based on reasonable and supportable assumptions and
projections. If the expected future undiscounted cash flows exceed the carrying
value of the asset, no impairment is recognized. If the carrying value of the
asset exceeds the expected future undiscounted cash flows, impairment exists and
is measured by the excess of the carrying value over the estimated fair value of
the asset. Fair value is defined in the statement as the "amount at which the
asset could be bought or sold in a current transaction between willing parties."
The impairment expense in the current period of $21,148,000 was primarily
attributable to impairments on three fields -- the Esther Field, Spivey Field
and Wellman Field -- amounting to $8,394,000, $6,127,000 and $2,257,000,
respectively. The Esther and Wellman Fields were acquired in the Shore Merger,
and the Spivey Field was acquired in the Bison Merger. The impairment on the
Esther Field in Vermilion Parish, Louisiana was due primarily to a change in the
category of reserves from Proved Undeveloped to Probable Undeveloped and changes
in the economics of the development of the reserves. The category of the
reserves was changed due to an abandoned sidetrack attempt in February, 1998 by
the operator on the Proved Undeveloped Reserves. The impairment on the Spivey
Field was due primarily to a decrease in the level of oil prices and changes in
the economics of the Proved Undeveloped Reserves due to information obtained
from the wells drilled in 1997. The impairment on the Wellman Field in Terry
County, Texas was due primarily to decreases in oil prices. Since July 1, 1997,
the posted price of WTI crude oil has fallen from approximately $18.00 per
barrel to $15.00 per barrel at December 31, 1997 or 17%. The total oil
equivalent reserves of the Wellman Field are 95% oil. The remaining impairment
expense of approximately $4,370,000 is attributable to several fields. The
principal reasons for the impairment on these fields are the decrease in oil
prices and the decrease or cessation of oil and gas production.
Lease operating expenses of $3,849,000 increased by $2,333,000. The
increase was due primarily to the Bison and Shore Mergers which increased lease
operating expenses $1,067,000 and $915,000, respectively. Depletion expense of
$4,567,000 increased by $3,382,000. Depletion increased primarily due to the
Bison and Shore Mergers which increased depletion by $1,279,000 and $1,270,000,
respectively. Interest expense of $671,000 increased by $166,000 due to a higher
loan balance. Dry-hole expense of $1,119,000 increased by $690,000 due primarily
to abandonment costs on three unsuccessful Exploratory Wells drilled in
Louisiana -- the Shore Oil Company #1, the Sabine #1 and the Middle Bay Oil
Company #1 -- with dry-hole costs of $311,000, $177,000 and $168,000,
respectively. General and administrative expense of $2,361,000 increased by
40
<PAGE> 52
$1,699,000, due primarily to higher salary expense of $724,000, higher
professional fees of $347,000, higher office expenses of $128,000, and higher
IRA/SEP/Other Bonus expenses of $123,000. The remaining increase in general and
administrative expenses was over several expense categories and was due
primarily to an increase in the overall level of activity at Middle Bay as a
result of the Bison and Shore Mergers. The increase in salary expense is due to
increases in salaries of existing employees and salaries associated with
employees added in the Bison and Shore Mergers. At the time of the Bison Merger,
seven employees occupied the Wichita, Kansas office. Effective August 1, 1997,
only four employees will be occupying the Wichita, Kansas office -- the
President of Bison, an engineer, geologist and secretary. The President of
Shore, an engineer and a secretary were added in the Shore Merger. In addition,
Middle Bay hired a land manager in July to manage Middle Bay's land and mineral
records and an accounting supervisor in October to assist with the increased
accounting workload. Stock compensation expense of $202,000 increased by
$202,000 due to the vesting of 50% of the restricted stock granted to certain
Company employees in February, 1997. The remaining 50% will fully vest on June
30, 1998. Other expenses of $317,000 increased $285,000 over the comparable
period. The primary reason for the increase was expenses associated with the
Bison and Shore Mergers.
Middle Bay reported an operating loss of $23,024,000 for the year ended
December 31, 1997, as compared to an operating profit of $280,000 in the
comparable period.
Middle Bay reported a deferred tax benefit of $7,451,249 for the year ended
1997 versus a deferred tax expense of $70,000 in the comparable period. The
primary reason for the deferred tax benefit in 1997 was the oil and gas reserve
impairment on the properties acquired in the Bison and Shore Mergers in 1997 and
the NPC Merger in 1996. These three mergers were tax-free mergers, and the tax
basis of the oil and gas properties acquired were carried over on Middle Bay's
books at the merger dates. For accounting purposes, the three mergers were
purchases and the oil and gas properties were recorded on Middle Bay's books at
fair market value on the merger dates. The fair market value was much higher
than the carryover tax basis and a deferred tax liability at the prevailing tax
rate was recorded for the difference. The total deferred tax liability that was
recorded on Middle Bay's books for the Bison, Shore and NPC Mergers was
approximately $12 million. When the impairment reduced the carrying amount of
the oil and gas properties for accounting purposes but not for tax purposes, the
difference between the accounting and tax basis of the properties was reduced
and the deferred tax liability was reduced accordingly, resulting in a deferred
tax benefit.
Middle Bay reported a net loss of $15,579,340 versus net income of $205,500
for the comparable period. Middle Bay paid preferred dividends of $605,000 in
the current period and reported a net loss to common stockholders of $16,184,052
versus net income available to common stockholders of $205,000 for the
comparable period. No preferred dividends were paid in 1996.
FISCAL 1996
Total revenues for the twelve months ended December 31, 1996, of
$4,886,000, were $1,348,000 higher than the comparable period. The increase in
total revenues was due primarily to higher oil and gas revenues of $1,236,000,
consisting primarily of a $469,000 increase in oil revenues and a $858,000
increase in gas revenues. Total revenues also increased due to higher other
income of $199,000, due primarily to a gas contract settlement of $263,000. The
increase in oil and gas revenues from 1996 to 1995 was primarily the result of
higher oil and gas prices. Production of oil and gas for the twelve months ended
December 31, 1996, increased 1% and 7%, respectively, over the comparable
period. During the twelve-month period ended December 31, 1996, Middle Bay sold
109,000 barrels of oil and 983,000 Mcf of gas, as compared to 107,000 barrels of
oil and 917,000 Mcf of gas for the comparable period. Oil production for 1996
was 1,600 barrels higher due to a 4,300 barrel increase from the successful
wells in the Brigham Agreement, a 500 barrel increase in existing properties,
and a decrease of 3,200 barrels from properties sold in 1996. Gas production in
1996 was 66,000 Mcf higher due to a 25,000 Mcf increase from the successful
wells in the Brigham Agreement and a 78,000 Mcf increase in existing properties
offset by a decrease of 37,000 Mcf from properties sold in 1996. The price
received on the gas sold in 1996 of $2.28 per Mcf was higher than the $1.52 per
Mcf received in the comparable period. Oil prices in 1996 of $20.26 per barrel
were 25% higher than the $16.17 per barrel received in the comparable period.
41
<PAGE> 53
The increase in total revenues of $1,348,000 was more than the increase in
total expenses of $646,000. Increases in dry-hole costs and depreciation and
depletion expense accounted for approximately 91% of the total expense increase.
Lease operating expenses of $1,516,000 increased by $79,000 as a result of
higher expenses on existing properties of $138,000 and expenses on successful
wells in the Brigham Agreement of $4,300 offset by reductions due to properties
sold in 1996 of $63,000. Interest expense of $505,000 decreased by $15,000 due
to lower interest rates and payments on principal in 1996. Dry-hole expense
increased by $346,000 due primarily to abandonment costs of $421,000 associated
with the unsuccessful wells drilled in the Brigham Agreement. Depletion expense
of $1,397,000 increased by $256,000. Regular depletion of $1,119,000 increased
by $134,000 due primarily to higher depletion on existing properties. Write-offs
of proven properties in accordance with SFAS #121 of $277,000 increased by
$121,000. Of the total writedown, 75% is from three single well fields in
Louisiana. One of the fields was the Lake Decade Field which was a major
property in 1995. It contributed $91,000 to cash flow in 1996 before it ceased
producing in December 1996, resulting in an impairment expense of $59,000. The
other two fields, which produced very little in 1996, were minor properties
contributing less than $20,000 to cash flow in 1995, and producing impairment
losses of $95,000 and $55,000. The remaining impairment expense resulted from
several properties, none of which were significant properties in terms of
discounted present value and were primarily mature, small properties that did
not contribute significantly to Middle Bay's cash flow in 1996 and 1995.
Depreciation expense of $60,000 decreased $15,000 due to lower depreciation on
lease and well equipment and corporate office furniture and fixtures which are
depreciated on an accelerated method which declines over the useful life of the
asset. General and administrative expenses decreased by $3,900, due primarily to
Middle Bay's lower 1996 SEP/IRA and 1% NPI contributions of $12,000 compared to
the $60,000 in contributions in 1995, lower accounting expenses of $14,000 and
lower miscellaneous expenses of $18,000 which were partially offset by higher
travel and entertainment expenses of $47,000 and higher legal expenses of
$12,000.
Middle Bay reported an operating profit of $280,000 for the year ended
December 31, 1996 as compared to an operating loss of $421,000 in 1995. If the
1996 nonrecurring credits of $303,000 consisting of the gas contract settlement
of $263,00 and lease operating expense credit of $40,000, were offset against
the 1995 nonrecurring expenses of $62,000, the operating loss would have
decreased by $336,000.
Middle Bay reported net income of $205,000 for the year ended December 31,
1996, versus a net loss of $331,000 for the comparable period.
THREE MONTHS ENDED MARCH 31, 1997 AND 1998
Total revenues for the three months ended March 31, 1998 of $2,757,000 were
$856,000 higher than the comparable period. The increase in total revenues was
due principally to higher oil and gas revenues of $756,000.
The increase in oil and gas revenues consisted primarily of a $364,000
increase in oil revenues and a $349,000 increase in gas revenues. The increase
in oil and gas revenues was the result of higher oil and gas production.
Production of oil increased 116% and production of gas increased 72%, over the
comparable period. The oil production increase of 50,141 barrels and the gas
production increase of 219,034 Mcf, were due primarily to the Shore Merger and
the Riceville Acquisition. During the three month period ended March 31, 1998,
the Company sold 93,260 barrels of oil and 521,556 Mcf of gas, as compared to
43,119 barrels and 302,522 Mcf for the comparable period. The average price
received on the gas sold in 1998 of $2.28 per Mcf was 18% lower than the $2.77
per Mcf received in the comparable period. The average price received on the oil
sold in 1998 of $13.94 per barrel was 36% lower than the $21.71 per barrel
received in the comparable period.
Total expenses increased by $3,038,000 over the comparable period. Due to
the growth of the Company over the last twelve months, all categories of
expenses increased.
Lease operating expenses increased $541,000. The increase was due
principally to the additional expenses on the properties acquired in the Bison
and Shore Mergers.
42
<PAGE> 54
Depletion and depreciation expense increased by $639,000. Depletion was
higher due to depletion on properties acquired in the Bison and Shore Mergers
and the Riceville Acquisition.
General and administrative expenses ("G&A") increased by $671,000. The
increase in G&A consists primarily of a $236,000 increase in salaries, $132,000
in performance bonuses for the previous year and an increase of $247,000 in
engineering, accounting and legal expenses. The increase in salary expense was
due to increases in salaries of existing employees, salaries of new employees
and salaries associated with employees added in the Bison and Shore Mergers. For
the current period, the Company had seventeen full-time employees; eight
employees were added through the Bison and Shore mergers and the Company hired a
land manager and accountant and lost one employee. In addition, during the
comparable period before the Bison Merger, the Company had eight full-time
employees. The performance bonus was paid to certain key employees upon
recommendation by the Compensation Committee after an appraisal of the Company's
performance for the year ended 1997.
Dryhole expenses increased by $288,000. In the current period the dryhole
expense of $469,000 consisted principally of $199,000 for the dryhole on the
South Highbaugh Prospect. Additional dryhole expenses of $102,000 on two
dryholes on the Reflection Ridge Prospect and $130,000 on the Middle Bay Oil Co.
#1 were expensed in the current period. The Reflection Ridge wells and the
Middle Bay Oil Co. #1 were drilled and abandoned in the fourth quarter of 1997.
Dryhole expenses in the comparable period consisted principally of costs through
the Brigham Agreement.
Geological and geophysical expenses ("G&G expenses") increased by $746,000.
In the current period, the Company spent approximately $740,000 in G&G expenses
on the Hawkins Ranch Prospect in Matagorda County, Texas. No G&G expenses were
incurred in the comparable period.
Stock compensation expense increased by $33,700 due to the vesting of the
restricted stock granted to certain Company employees in February 1997. All of
the stock will be vested by June 30, 1998.
Interest expense increased by $120,000, due primarily to a higher loan
balance.
The Company reported an operating loss of $2,143,000 for the three months
ended March 31, 1998 versus operating income of $40,000 for the comparable
period.
The Company reported a deferred income tax benefit of $728,000 in the
current period. No deferred taxes were recorded in the comparable period.
The Company reported a net loss of $1,414,000 for the three months ended
March 31, 1998 versus net income of $40,000 for the comparable period. After
considering the preferred stock dividend requirement of $68,000 in the current
period and $63,000 in the comparable period, the Company reported a net loss
available to common stockholders in the current and comparable periods of
$1,482,000 and $22,000, respectively.
EFFECTS OF OIL AND GAS PRICE FLUCTUATIONS
Fluctuations in the price of crude oil and natural gas significantly affect
Middle Bay's operations and the value of its assets. As a result of the
instability and volatility of crude oil and natural gas prices, financial
institutions have become more selective in the energy lending area and have
reduced the percentage of existing reserves that may qualify for the borrowing
base to support energy loans.
Middle Bay's principal source of cash flow is the production and sale of
its crude oil and natural gas reserves which are depleting assets. Cash flow
from oil and gas production sales depends upon the quantity of production and
the price obtained for that production. An increase in prices permits Middle Bay
to finance its operations to a greater extent with internally-generated funds,
allow Middle Bay to obtain equity financing more easily and lessens the
difficulty of attracting financing alternatives available to Middle Bay from
industry partners and nonindustry investors. However, price increases heighten
the competition for Leases and Prospects, increase the costs of exploration and
development activities and increase the risks associated with the purchase of
Producing Properties.
43
<PAGE> 55
A decline in oil and gas prices (i) reduces the cash flow internally
generated by Middle Bay, which in turn reduces the funds available for servicing
debt and exploring for and replacing oil and gas reserves, (ii) increases the
difficulty of obtaining equity financing, (iii) reduces the number of Leases and
Prospects available to Middle Bay on reasonable economic terms and (iv)
increases the difficulty of attracting financing alternatives available to
Middle Bay from industry partners and nonindustry investors. However, price
declines reduce the competition for Leases and Prospects and correspondingly
reduce the prices paid for Leases and Prospects. Furthermore, exploration and
production costs generally decline, although the decline may not be at the same
rate of decline of oil and gas prices.
Since September, 1997, the price of oil has declined dramatically. The
posted price of WTI crude oil has declined from a high of approximately $20.00
per barrel in October 1997 to lows in March 1998 of approximately $9 per barrel.
The average posted price of WTI crude oil for the year 1997 was approximately
$18 per barrel. As of May 31, 1998, Approximately 40% of Middle Bay's proved
developed producing oil and gas reserves, on a BOE basis, are oil. If oil prices
remain at or near the June 1998 levels, Middle Bay's revenue and cash flow will
decrease relative to the year ended 1997. Gas prices peaked in November 1997,
but decreased and have declined approximately 20% since December, 1997.
SEASONALITY
The results of operations of Middle Bay are somewhat seasonal due to
seasonal fluctuations in the price for natural gas. Generally, natural gas
prices are higher in the first and fourth quarter of the year due to colder
winter weather and resulting higher demand for natural gas during these months.
Due to these seasonal fluctuations, results of operations for individual
quarterly periods may not be indicative of results on an annual basis.
INFLATION AND CHANGING PRICES
Inflation principally affects the costs required to drill, complete and
operate oil and gas wells. In recent years, inflation has had a minimal effect
on the operations of Middle Bay. Costs have generally declined over the near
future due to the decrease in drilling activity in the United States. Unless
increasing oil and gas prices spur large increases in industry activities,
management believes costs will remain relatively stable over the next year.
CAPITAL RESOURCES AND LIQUIDITY -- FISCAL 1997 AND FISCAL 1996
Cash flow from operations before working capital changes of $2,925,000
increased $1,225,000 over the comparable period. This increase was due a to
$3,184,000 increase in oil and gas cash flow, an increase of $554,000 in other
income offset by increases in general and administrative costs of $1,654,000,
dry-hole costs of $691,000, interest expense of $166,000 and $1,000 in current
income taxes. Increased oil and gas operations cash flow before working capital
changes was principally the result of increases in oil and gas production. The
other income increase was due primarily to lease bonus and delay rental income
on the minerals acquired in the Shore Merger.
Cash flow from operating activities for the year ending December 31, 1997,
of $2,582,000 increased $1,193,000 over the comparable period. Changes in
working capital reduced cash flow by $32,000 over the comparable period.
Differences in the amount and timing of accrual and payment of payables and the
accrual and receipt of revenues account for the changes in working capital.
Additions to oil and gas properties were higher than the comparable period
due to the Bison and Shore Mergers and increased acquisitions and drilling in
the current period. The increase in the amount of cash used for debt payments
was due primarily to the $2,105,000 refinancing of the term note assumed in the
Shore Merger and the $385,000 of payments and refinancing on the note assumed in
the NPC Merger. No principal payments have been required over the period April
1, 1996 to December 31, 1997 on Middle Bay's $6 million, $15 million and $50
million convertible loans. The increase in the proceeds from debt issued was due
to the refinancing of the notes assumed in the Shore and NPC Mergers, $3,000,000
issued in the Riceville Acquisition and the financing of the leasehold and
seismic costs in the amount of $385,000 associated with the
44
<PAGE> 56
Reflection Ridge Prospect. The increase in proceeds from issuance of preferred
stock was due to the preferred stock issued to finance portions of the Bison and
Shore Mergers.
Middle Bay's operating activities provided net cash of $2,582,000 for the
year ending December 31, 1997. During this period, net cash from operations and
cash on hand was used principally for exploratory and developmental drilling of
$2,004,000, workovers of $431,000, exploration prospects of $415,000 and proved
property acquisitions of $921,000. Debt proceeds were used to finance $3,000,000
of proved property acquisition and $285,000 of prospects. Common stock was
issued for $260,000 of proved property acquisitions, excluding mergers. Of the
$2,004,000 spent on exploratory and developmental drilling, approximately
$420,000 was spent in the Brigham Agreement, $880,000 in the Spivey Field in
Kansas, $100,000 in the Wellman Unit in Texas, and the remainder was spent on
several wells in Louisiana, Mississippi and Oklahoma. Of the $431,000 spent on
workovers, approximately $80,000 was spent at Wild Fork Creek Field in Alabama,
$44,000 at the Wright Field in Louisiana, $30,000 at Magnolia in Arkansas and
$25,000 at Lake Trammel Field in Texas. The remaining amount was spent on
several different properties. The $700,000 total amount spent on prospects
consisted primarily of $286,000 on Reflection Ridge in Kansas, $232,000 on
Hawkins Ranch in Texas, $67,000 on the Sherburne Prospect in Louisiana, $31,000
on the Quarry Prospect in New Mexico and $55,000 on S. Highbaugh in Texas.
Middle Bay spent $7,140,000 on the Bison Merger. This includes the $1,446,000 in
non-oil and gas assets, which were subsequently sold for the amount paid. Middle
Bay spent $514,000 on the Shore Merger. Amounts spent on debt retirement
consisted principally of the payment in full of the note assumed in the Shore
Merger of $2,105,000, monthly principal payments on the $385,000 term note
assumed in the NPC Merger and the refinancing of the NPC term note of $274,000.
The principal payments on the $6 million convertible loan were suspended when
Middle Bay converted the $5.6 million term note to a $6 million convertible loan
on April 3, 1996.
Middle Bay incurred $1,119,000 in dry hole costs consisting principally of
three wells drilled in Louisiana and one well drilled in Oklahoma. The Louisiana
wells were the Shore Oil Company #1, the Sabine #1 and the Middle Bay Oil
Company #1 with dry-hole costs of $311,000, $177,000 and $168,000, respectively.
The Oklahoma well was the Hannah #1 with a dry hole cost of $301,000.
Middle Bay incurred $223,000 in geological and geophysical costs ("G&G
Costs") which consisted primarily of $130,000 in geological and geophysical
costs on the Reflection Ridge Prospect and $62,000 on the Hawkins Ranch
Prospect. The above discussion of capital costs does not include amounts
expensed as dry hole and geological and geophysical costs.
Middle Bay had current assets of $4,223,000 and current liabilities of
$2,891,000, which resulted in working capital of $1,332,000 at December 31,
1997. This was an increase of $546,000 from working capital of $786,000 at
December 31, 1996. Working capital increased primarily due to increased cash
flow from operations, cash proceeds from stock option exercises, and no monthly
principal payments on the Convertible Loan, offset partially by increased
amounts spent on exploratory and developmental drilling and working capital
changes. The current maturity of long-term debt was higher in 1997 because of
the larger principal balance requiring payment in the following year. In 1997,
the $50 million Convertible Loan requires principal payments beginning April 1,
1998 versus the $6 million Convertible Loan requiring principal payments
beginning October 1, 1997 in the comparable period. Middle Bay's current ratio
of 2.78, calculated under the terms of the Convertible Loan which excludes
stockholder receivables and debt due under the $50 million Convertible Loan, is
in excess of the 0.90 to 1.00 required.
THREE MONTHS ENDED MARCH 31, 1997 AND 1998
Cash flow from operating activities for the three months ended March 31,
1998 of $1,564,000 increased $868,000 over the comparable period. The increase
was due primarily to working capital changes offset by a decrease in cash flow
from higher geological and geophysical expenses, higher dry-hole expenses and
higher general and administrative expenses. Cash flow from oil and gas
properties increased $216,000 over the comparable period. Oil and gas prices
decreased 36% and 18%, respectively, while oil and gas production increased 116%
and 72%, respectively. The change in working capital increased cash flow by
$2,091,000 over the comparable period. The change in working capital was caused
principally by timing differences in the
45
<PAGE> 57
payment of expenses and receipt of revenues. The cash flow to debt coverage
ratio of 203.62 is greater than the 1.25 required under the $100 million credit
facility. There were no required principal payments under the $100 million
credit facility in the current period.
Additions to oil and gas properties were higher than the comparable period
due primarily to the increased drilling activity. The amount spent on
acquisitions is higher due to the Enex acquisition (the "Enex Acquisition")
which closed March 27, 1998. Middle Bay acquired approximately 79% of Enex
common stock for cash in a tender offer that expired March 27, 1998. The
increase in the amount of cash used for debt payments was due to replacement of
the $50 million Convertible Loan, with a principal balance of $10,956,000, with
the $100 million credit facility. No monthly principal payments have been
required over the period April 1, 1997 to March 31, 1998 on Middle Bay's $6
million, $15 million and $50 million Convertible Loans. The increase in the
proceeds from debt issued was due to the proceeds from the $100 million credit
facility which were used to replace the $50 million Convertible Loan and to
finance the Enex Acquisition. No preferred stock was issued in the current
period versus the $6 million issued under the Preferred Stock Agreement with
Kaiser-Francis in the comparable period. Kaiser-Francis converted all of the
Series A Preferred Stock on January 31, 1998.
Middle Bay's operating activities provided net cash of $1,564,000 for the
three-month period ended March 31, 1998. During this period, net cash from
operations and cash on hand was used principally for acquisitions and
exploratory and developmental drilling. Approximately $149,000 was spent to
acquire a well in the Spivey Field. Approximately $650,000 was spent on
exploratory drilling. The principal exploratory wells in the current period were
the S. Highbaugh Prospect well ($199,000), the Sherburne Prospect well
($219,000) and the Middle Bay Oil Co. #1 well ($130,000). Approximately $900,000
was spent on developmental drilling. The principal developmental well drilled in
the current period was the Kuehling #1 sidetrack ($529,000) which was
unsuccessful. Additional developmental drilling was done in the Convis, Custer
City, Lake Trammel, Spivey and Wellman Fields. Middle Bay spent approximately
$15,966,000 on the Enex Acquisition which was financed entirely with debt
proceeds from the $100 million credit facility. Amounts spent on debt retirement
consisted principally of the replacement of the $50 million convertible loan.
Middle Bay had current assets of $9,575,000 and current liabilities of
$7,100,000, which resulted in working capital of $2,475,000 as of March 31,
1998. This was an increase of $1,162,000 from the working capital of $1,313,000
as of December 31, 1997. Working capital increased primarily due to working
capital acquired in the Enex Acquisition. Middle Bay's working capital at March
31, 1998, before the Enex transaction, was $132,000. Middle Bay's current ratio
of 2.07, calculated under the terms of the $100 million credit facility, which
excludes stockholder receivables and debt due under the $100 million credit
facility, was in excess of the 0.90 to 1.00 required.
In general, because natural gas and oil reserves are depleted by
production, Middle Bay's success is dependent upon the results of its
acquisition, development and exploration activities. Middle Bay's strategy is to
acquire and develop proved producing and proved undeveloped properties, enhance
and exploit its existing properties for reserves and to invest in a limited
amount of exploratory and developmental drilling projects. Middle Bay expects to
incur a minimum of $2,300,000 in capital expenditures over the next twelve
months for exploratory and developmental activities. The capital expenditures
for drilling are expected to be allocated to recomplete a well in the Esther
Field for $400,000, drill a well on the Sherburne Prospect for $288,000, on the
S. Highbaugh Prospect for $150,000, on the Quarry Prospect for $140,000 and
shoot, process and interpret seismic and acquire leases on the Hawkins Ranch
Prospect for $1,300,000. The developmental and exploratory drilling activities
will be funded by internally generated cash flows. Capital expenditures above
$2.3 million will be contingent on a number of factors including current and
expected prices of oil and gas, timing of completion of 3-D seismic data
acquisition on the Hawkins Ranch Prospect, results of exploration and
development drilling and potential additional mergers and acquisitions Middle
Bay is currently evaluating.
As of March 16, 1998, Middle Bay had funded the sidetracking of the
Kuehling #1 well in the Esther Field for $400,000 and a well in the S. Highbaugh
Prospect in Tyler County, Texas for $150,000. The operator abandoned the
recompletion attempt after encountering a split casing, and the well in S.
Highbaugh was a dry
46
<PAGE> 58
hole. In addition, Middle Bay purchased additional interest and seismic on the
Hawkins Ranch Prospect for approximately $250,000.
Under the terms of the Janex Acquisition, Middle Bay has a contingent
obligation to repurchase 142,107 common shares issued in the Janex Acquisition,
upon written notice delivered to Middle Bay, beginning five years after the
closing date and continuing for thirty days thereafter, at a price of $6.00 per
share. This obligation shall terminate if Middle Bay's stock trades at a share
price of $8.00 or greater for twenty consecutive trading days during the
thirty-six month period ending November 1, 1998. At the close of trading on
April 7, 1997, Middle Bay's common stock had traded at an ask price that was
equal to, or exceeded, $8.00 per share for twenty consecutive trading days.
Therefore, the contingent obligation represented by the redeemable common stock
balance on Middle Bay's balance sheet in the amount of $421,179 was reclassified
to additional paid-in capital effective April 7, 1997.
On April 3, 1996, the Bank converted its $5.6 million term note into a $6.0
million, one-year, revolving line-of-credit (the "$6 million Convertible Loan"),
effective April 1, 1996. The $6 million Convertible Loan required monthly
payments of interest only at prime plus 1.5% and converted into a term note
payable in seventy-one consecutive equal monthly principal and interest payments
at prime plus 1.5%, with the remaining principal and interest payment due on
March 31, 2003. Effective, March 31, 1997, Middle Bay refinanced the $6 million
Convertible Loan at its current principal balance of $5,186,596 with a $15
million Convertible Loan. The $15 million Convertible Loan required monthly
payments of interest only at prime for one year and converts into a term note
payable in seventy-one consecutive equal monthly principal and interest payments
at prime, with the remaining principal and interest payment due on March 31,
2004. The $15 million Convertible Loan also required payment of a commitment fee
equal to an annual rate of three-eighths percent of the excess of the borrowing
base over the principal balance of the convertible note. Effective September 1,
1997, Middle Bay refinanced the $15 million Convertible Loan at its current
principal balance of $5,851,298 with a $50 million Convertible Loan. The $50
million Convertible Loan requires monthly payments of interest only at a fixed
rate of Libor plus 1.75% as long as the principal amount of the loan is less
than 75% of the current borrowing base of $15 million. If the principal amount
of the loan is greater than or equal to 75% of the borrowing base, the rate
increases to Libor plus 2.75%. Middle Bay has the option of switching to a
floating prime rate. The $50 million Convertible Loan converts into a term note
payable in seventy-one consecutive equal monthly principal and interest payments
at prime, with the remaining principal and interest payment due on March 31,
2004. The $50 million Convertible Loan also requires payment of a commitment fee
equal to an annual rate of three-eighths percent of the excess of the borrowing
base over the principal balance of the convertible note. The principal balance
of the $50 million Convertible Loan at December 31, 1997 was $10,956,298. The
$50 million Convertible Loan was refinanced with the previously discussed $100
million credit facility.
On September 4, 1996, Middle Bay signed a Preferred Stock Agreement with
Kaiser-Francis. The Preferred Stock Agreement provides for the purchase of
1,666,667 shares of Series A by Kaiser-Francis over a five-year period,
beginning September 4, 1996, with minimum incremental investments of $500,000
each. Each issuance is subject to approval by Kaiser-Francis of the use of
proceeds. The Series A was nonvoting and accrued dividends at 8% per annum,
payable quarterly in cash. At December 31, 1997, 100% of the Series A had been
issued to partially finance the NPC, Bison and Shore Mergers, and in January,
1998, Kaiser-Francis converted 100% of the Series A into 3,333,334 shares of
Middle Bay Common Stock.
In connection with the merger with Shore Oil Company, effective June 30,
1997, the Company issued 266,667 shares of Series B Preferred Stock ("Series
B"). The Series B is nonvoting and pays no dividends. The Series B has a
liquidation value of $7.50 per share and is junior to the Series A Preferred.
For a period of sixty-six months subsequent to June 30, 1997 any holder of the
Series B may convert all or any portion of Series B shares into Company Common
Stock ("Common") at a ratio of one share of Common for each Series B share, or
at any time on or after January 1, 1998, the holders may convert a portion of
their Series B shares based on a conversion method whereby a number of
convertible Series B shares are exchanged using the Alternative Conversion
Factor, which is calculated as the increase in value of approximately 40,000 net
mineral acres in South Louisiana owned by the Company at the end of the year
divided by $8 million.
47
<PAGE> 59
The Alternative Conversion Factor is then multiplied by 1,066,000 to arrive
at the potential converted number of common shares received. Upon expiration of
the conversion period, unless the Company has given notice to redeem the Series
B, all of the shares of Series B shall be automatically converted. In no event
shall the aggregate total number of shares of Common into which the Series B are
converted be less than 266,667 shares or exceed 1,333,333 shares, unless further
increased for any anti-dilution provisions.
Middle Bay's liquidity position and current and anticipated cash flows from
operations remain adequate for its general requirements. However, because future
cash flows and the availability of financing are subject to a number of
variables, such as the level of production and prices received for gas and oil,
there can be no assurance that Middle Bay's capital resources will be sufficient
to maintain planned levels of capital expenditures.
CAPITAL EXPENDITURES -- FISCAL 1997 AND FISCAL 1996
Total capital expenditures, excluding mergers, for oil and gas properties
in fiscal 1997 and 1996 were $7,316,000 and $1,597,000, respectively. Total
capital expenditures for mergers in 1997 and 1996 were $27,586,000 and
$2,618,000, respectively. Total capital expenditures for dry holes and G&G in
1997 and 1996 were $1,341,000 and $429,000, respectively.
FUTURE CAPITAL REQUIREMENTS
The Company has made and will continue to make, substantial capital
expenditures for acquisition, development and exploration of oil and natural gas
reserves. In fact, because the Company's principal natural gas and oil reserves
are depleted by production, its success is dependent upon the results of its
acquisition, development and exploration activities.
The Company, excluding Enex and Service Drilling, expects to incur a
minimum of approximately $1,400,000 in capital expenditures over the next twelve
months. The Company expects that available cash, cash flows from operations and
cash proceeds from asset sales of certain non-core properties will be sufficient
to fund the planned capital expenditures through 1998 in addition to funding
interest and principal requirements on the $100 million Revolver. However, the
Company may require additional borrowings under the $100 million Revolver or
additional equity funding to raise additional capital to fund any acquisitions.
Because future cash flows and the availability of financing are subject to
a number of variables, such as the level of production and prices received for
gas and oil, there can be no assurance that the Company's capital resources will
be sufficient to maintain planned levels of capital expenditures.
Middle Bay does not anticipate that it will incur any significant
expenditures to address year 2000 issues, nor do year 2000 issues represent a
known material event or uncertainty to Middle Bay. To the extent that Middle Bay
may be adversely affected by year 2000 issues of its suppliers, customers and
other entities, Middle Bay does not believe it will be more adversely affected
than other companies in its industry with similar operations.
48
<PAGE> 60
SELECTED FINANCIAL DATA
The following selected financial data for Enex for the years ended December
31, 1996 and 1997 and the three months ended March 31, 1997 and 1998 are derived
from Enex's audited and unaudited Financial Statements. Operating results for
the three months ended March 31, 1997 and 1998 are not necessarily indicative of
the results that may be expected for the entire fiscal year ended December 31,
1998. The selected financial data below should be read in conjunction with
Enex's audited and unaudited Financial Statements and related Notes thereto and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained elsewhere in this Proxy Statement/Prospectus.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31,
--------------------------- ----------------------------
1997 1996 1998 1997
------------ ------------ ------------- ------------
(UNAUDITED)
<S> <C> <C> <C> <C>
Revenue
Oil and gas sales...................... $ 9,093,316 $ 7,286,738 $ 2,104,602 $ 1,699,330
Gas plant sales........................ 1,002,326 915,593 17,733 347,786
Gain on sale of property............... 923,654 258,786 671,923 237,518
Other.................................. 444,303 135,727 9,999 25,508
------------ ------------ ------------ -----------
Total Revenue.................. 11,463,599 8,596,844 2,804,257 2,310,142
Costs and Expenses
Operating expenses, including
production taxes.................... 4,774,532 3,582,422 1,002,651 953,652
Impairment expense..................... -- 3,908,370 -- --
Depletion, depreciation and
amortization........................ 1,633,771 1,338,602 548,028 235,893
Interest............................... -- 12,429 -- --
General and administrative............. 2,061,090 1,826,762 1,416,407 416,780
------------ ------------ ------------ -----------
Total Expenses................. 8,469,393 10,668,585 2,967,086 1,606,325
Income (loss) before minority interest
and income taxes....................... 2,994,206 (2,071,741) (162,829) 703,817
Minority interest........................ (1,012,449) (342,761) (348,190) (184,144)
------------ ------------ ------------ -----------
Income (loss) before income tax.......... 1,981,757 (2,414,502) (511,019) 519,673
Income tax expense (credit).............. 16,082 (92,981) (86,700) 18,021
------------ ------------ ------------ -----------
Net Income (Loss)........................ $ 1,965,675 $ (2,321,521) $ (424,319) $ 501,652
============ ============ ============ ===========
Net income (loss) per Common Share
Basic.................................. 1.45 (1.70) (0.32) 0.37
============ ============ ============ ===========
Diluted................................ 1.37 (1.70) (0.32) 0.35
============ ============ ============ ===========
Total Assets................... 20,001,802 15,075,378 19,282,544 15,284,086
Long-term debt........................... -- -- -- --
Dividends per share...................... 0.40 0.25 -- --
</TABLE>
49
<PAGE> 61
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The forward-looking statements contained herein are based on various
assumptions, many of which are based, in turn, upon further assumptions. Enex's
expectations, beliefs and projections are expressed in good faith and are
believed by Enex to have a reasonable basis, including without limitation
management's examination of historical operating trends, data contained in
Enex's records and other data available from third parties, but there can be no
assurance that management's expectations, beliefs or projections will result or
be achieved or accomplished.
In 1997, Enex recognized an increase in revenues and cash flows mainly due
to increased interest in Enex Consolidated Partners L.P. Net gains from the
sales of properties, together with relatively lower operating expenses, allowed
Enex to increase net income by 24% from 1996, absent a $3.9 million impairment
in 1996. Effective June 30, 1997, thirty-four of Enex's managed limited
partnerships (the "Predecessor Partnerships") were consolidated to form Enex
Consolidated Partners, L.P. (the "Consolidated Partnership"). In conjunction
with the Consolidation, Enex converted its receivables from the limited
partnerships and its capital interests in the Predecessor Partnerships into
limited partner units in the Consolidated Partnership. As a result, Enex owns a
55.5% limited partnership interest in the Consolidated Partnership. As such, the
results of operations and financial condition subsequent to June 30, 1997 have
been fully consolidated in the attached financial statements and minority
interest recognized. At December 31, 1997, Enex had a current ratio of 7.37 with
no long-term debt.
LIQUIDITY AND CAPITAL RESOURCES
Operating activities provided cash flow of $2,519,016 in 1997, as compared
to $3,020,581 in 1996 and $2,541,845 in 1995. The lower cash flow in 1997, as
compared to 1996, was primarily the result of an $860,422 decrease in accounts
receivable in 1996, as compared to a similar decrease of $180,213 in 1995. The
higher cash flows in 1996 as compared to 1995 were primarily the result of
higher revenues.
In 1997, Enex had no long-term debt. In May 1996, Enex fully repaid its
long-term debt with repayments of $850,000 in the first five months of 1996.
Enex repaid a net of $1,074,000 of its long-term debt in 1995.
In 1997, proceeds from the sales of property added $1,639,855 to Enex's
cash flow. In 1996 and 1995, proceeds from the sale of property added $555,557
and $991,632, respectively. Receipts collected on notes receivable from managed
limited partnerships added $16,902 and $49,816 in 1996 and 1995, respectively.
A significant portion of Enex's cash flow has continued to be reinvested in
oil and gas properties. A total of $758,585, $1,333,111 and $1,927,925 was used
for the acquisition and development of oil and gas properties during 1997, 1996
and 1995, respectively. In 1997, $466,188 was used for the acquisition of oil
and gas properties through the purchase of additional interests in the
partnership. In 1997, Enex purchased royalty interests in 16 wells in Corinne
Field, Monroe County, Mississippi for $78,750, an overriding royalty interest
for $15,000 in the Byrum 1-28 well in Ononadago Field, Ingham County, Michigan
and working interests in 2 wells in Brighton Field, Livingston County, Michigan
for $23,520, 3 wells in Otsego County, Michigan for $67,314, and 7 wells in
Karnes County, Texas for $55,000, all from managed limited partnerships. In
1996, Enex drilled eighteen developmental oil and gas wells, including, wells in
the Sibley Field, Webster Parish, Louisiana, which added 750,000 MCF of gas
equivalent to reserves. In 1995, Enex acquired royalty interests in the Gorman
gas unit in Duval County, Texas, overriding royalty interests in four gas wells
located in East Baton Rouge Parish, Louisiana and working interests in nine
wells located in WWW Field, Ward County, Texas from managed limited partnerships
for $660,290, $89,880 and $18,450, respectively.
Enex increased its semi-annual dividend to its shareholders in December
1997 from $.15 per share to $.25 per share with the payment of a $.10 per-share
special dividend. Enex utilized $530,652 of cash flow to pay $.40 per share of
dividends in 1997. In 1996 and 1995, Enex utilized $345,542 and $268,200,
respectively, to pay dividends of $.25 and $.20 per share, respectively.
In 1997, Enex continued its stock repurchase program, utilizing $1,375,637
to purchase 131,500 shares of its common stock. In 1996, Enex utilized $333,250
to purchase 34,494 shares of its common stock.
50
<PAGE> 62
As a result of the higher net income in 1997 and the recognition of
minority interest in the Consolidated Partnership, working capital increased to
$5,595,347 at December 31, 1997, from $3,969,402 at December 31, 1996. At
December 31, 1997, Enex's current ratio was 7.37, and it had no long-term debt.
RESULTS OF OPERATIONS
In 1997, Enex recorded net income of $1,965,675 or $1.45 per share. This
compares to a loss of $2,321,521 or $1.70 per share in 1996, and net income of
$1,269,400 or $.96 in 1995. The loss in 1996 was a result of a $3,908,370
nonrecurring impairment of property. Absent this impairment, Enex earned
$1,586,849 in 1996. The increase in net income from 1996 to 1997 was primarily
the result of increased revenues resulting form the conversion of receivable and
capital balances into limited partnership interest in the Consolidated
Partnership, coupled with relatively lower operating costs. Revenues and
expenses shown in the accompanying financial statements record Enex and Enex
Consolidated Partners, L.P. on a fully Consolidated basis subsequent to June 30,
1997.
Oil, natural gas and gas plant sales were $10,095,642 in 1997, $8,202,331
in 1996 and $6,594,438 in 1995. Sales increased by $1,893,311 or 23% in 1997
from 1996. Oil sales increased by $1,316,289 or 38% in 1997 from 1996. A 56%
increase in oil production increased oil sales by $1,931,047. This increase was
partially offset by a 12% decrease the average oil sales price. Gas sales
increased by $490,289 or 13%. A 5% increase in gas production increased sales by
$199,924. A 7% increase in the average gas sales price increased gas sales an
additional $290,365. Gas plant sales increased by $86,733 or 9%. A 15% increase
in the average sales price of gas plant products increased sales by $128,976.
This increase was partially offset by a 5% decrease in the production of gas
plant products. The increases in oil and gas production were primarily the
result of the recognition of the Consolidated Partnership on a fully
Consolidated basis after June 30, 1997. The decrease in gas plant production was
primarily due to natural production decline. The decrease in average oil sales
prices corresponds with lower prices in the overall market for the sale of oil.
The increases in the average gas and gas plant products sales prices correspond
with higher prices in the overall markets for the sale of gas and gas plant
products.
Oil, natural gas and gas plant gas sales increased by $1,607,893 or 24%
from 1995 to 1996. Oil sales increased $277,366 or 9% in 1996 from 1995. A 23%
increase in the average oil sales price increased oil sales by $640,966. This
increase was partially offset by an 11% decrease in oil production. Gas sales
increased by $1,084,708 or 39% in 1996 from 1995. A 41% increase in the average
gas sales price increased sales by $1,120,862. This increase was partially
offset by a 1% decrease in gas production. Gas plant sales increased by 37% or
$245,819. A 38% increase in the average sales price of gas plant products
increased sales by $252,701. This increase was partially offset by a 1% decrease
in the production of gas plant products. The decreases in production were
primarily the result of natural production declines, partially offset by the
development of eighteen oil and gas wells in 1996. The increases in average
sales prices corresponded with higher prices in the overall market for the sale
of oil, gas and gas plant products.
Other revenues were a net $226,658 in 1997 as compared with $88,259 in 1996
and $687,401 in 1995. Such revenues included rig rental revenues of $83,239,
$153,346 and $106,144 in 1997, 1996 and 1995, respectively. Also included in the
1997 amount were $50,000 for the sale of a drilling rig, and $20,000 from a
lawsuit settlement on the Dover Hennessey gas plant. Also included in 1996 and
1995 amounts were a net loss of $125,015 on the liquidation of managed
partnerships and a $393,980 gain recognized from the early receipt of notes
receivable in 1996 and 1995, respectively. The increase in other revenues in
1997 was primarily the result of the sale of the drilling rig. The decrease in
other revenues in 1996 from 1995 was primarily due to the loss arising from the
liquidation of managed limited partnerships in 1996 and the $393,390 gain
recognized in 1995 on the collection of notes receivable. The receipt of
unrecognized noted receivable was accelerated in 1995 as a result of the
liquidation of four managed limited partnerships.
General and administrative expenses increased to $2,061,090 in 1997 from
$1,826,762 in 1996. In 1995, such expenses were $1,689,742. This represents an
increase of $234,328 from 1996 to 1997. This increase was primarily the result
of the recognition of minority interest in the Consolidated Partnership. The
increase of
51
<PAGE> 63
$137,020 from 1995 to 1996 was primarily the result of the additional interests
acquired in managed limited partnerships in 1996.
Lease operating expenses were $3,455,717 in 1997 as compared to $2,490,701
in 1996 and $2,322,509 in 1995. Lease operating expenses increased by $965,016
or 39% from 1996 to 1997. The increase was primarily a result of the increased
production, as noted above, resulting from the recognition of minority interest
in the Consolidated Partnership. The increase of $168,192 or 7% from 1995 to
1996 was primarily the result of the increased production noted above.
Depletion, depreciation and amortization expense ("DD&A") was $1,633,771 in
1997, $1,338,602 in 1996 and $1,909,857 in 1995. DD&A increased by $295,169 or
22% from 1996 to 1997. The changes in production noted above increased DD&A by
$281,530. A 1% increase in the depletion rate increased DD&A by an additional
$13,639. The increase in the DD&A rate in 1997 was primarily the result of a
downward revision of the gas reserves during December 1997, partially offset by
an upward revision of the oil reserves. DD&A decreased by $571,255 or 30% from
1995 to 1996. A 26% decrease in the depletion rate reduced DD&A by $476,636. The
changes in production noted above reduced DD&A by an additional $94,619. The
decrease in the depletion rate was primarily the result of the recognition of a
nonrecurring impairment of $3,908,370 in the first quarter of 1996, coupled with
upward revisions of the oil and gas reserves during December 1996.
In 1997, Enex earned $217,645 of net interest income as compared to $35,039
in 1996. Enex incurred $117,062 of net interest expense in 1995. Net interest
income increased in 1997 from 1996 due to the return on investment of excess
cash during 1997. The higher interest expense in 1995 was due to the outstanding
debt during 1995.
Enex recognized deferred income tax expense of $16,082 in 1997. This
compares to the recognition of deferred income tax credits of $92,981 and
$399,658 in 1996 and 1995, respectively. The income tax expense represents the
utilization of Enex's deferred tax asset in 1997. The income tax credits
represent the recognition of a portion of Enex's deferred tax asset that is
expected to be realized in future years. At December 31, 1997, Enex had a
substantial deferred tax asset of $6,105,148. Due to uncertainties inherent in
the oil and gas market, a valuation allowance reserved all but $725,328 of the
asset.
FUTURE OUTLOOK
Enex does not anticipate that it will incur any significant expenditures to
address year 2000 issues, nor do year 2000 issues represent a known material
event or uncertainty to Enex. To the extent that Enex may be adversely affected
by year 2000 issues of its suppliers, customers and other entities, Enex does
not believe that it will be more adversely affected than other companies in its
industry with similar operations.
In 1997, Enex generated higher revenues and cash flows as result of
obtaining a greater interest in the Consolidated Partnership. This allowed Enex
to increase its cash position and working capital. During 1997, five
partnerships were liquidated and the remaining thirty-four managed limited
partnerships were combined to form one partnership, Enex Consolidated Partners,
L.P. This restructuring allowed a revamping of administrative processes,
yielding further reductions in general and administrative expenses.
In February 1998, Middle Bay, an independent oil and gas producer, issued a
tender offer to purchase all of Enex's outstanding common stock at $15 cash per
share. The tender offer expired on March 20, 1998, with approximately 79.2% of
the outstanding shares of common stock of Enex tendered to Middle Bay. The
aggregate amount to be paid by Middle Bay was $15,960,480 in cash, plus payments
totalling $826,250 to holders of options to purchase 143,000 shares of Enex
stock. As a result, Enex became a subsidiary of Middle Bay upon the closing of
the tender offer on March 27, 1998.
On March 17, 1998, the Enex Board of Directors took the following steps in
order to facilitate Middle Bay's tender offer:
(1) Added three (3) Middle Bay nominees to the Enex Board of Directors
to facilitate the transfer of control of Enex to Middle Bay. The three new
directors, whose appointment increased total board
52
<PAGE> 64
membership from six to nine members, are Middle Bay's President, John J.
Bassett, its Vice President for Corporate Development, Stephen W. Herod,
and one of its nonemployee directors, Gary R. Christopher.
(2) Approved the acquisition of the tendered shares of Enex common
stock by Middle Bay pursuant to Section 203 of the Delaware General
Corporation Law; and
(3) Amended the Rights Agreement between Enex and its transfer agent,
American Stock Transfer, Incorporated, dated September 4, 1990, as amended
through April 12, 1994, to make the stock purchase rights created by the
agreement inapplicable to transactions which are approved by Enex's Board
of Directors and to increase the rights exercise price to $33.00 to
reinstate the approximate ratio between the exercise price and the market
price of Enex common stock, prior to Middle Bay's tender offer, to that
which was in effect (approximately 3 to 1) when the rights were created.
In addition, Gerald B. Eckley and the five other Enex directors elected by
Enex's stockholders -- Robert D. Carl, III, William C. Hooper, Jr., Martin J.
Freedman, James T. Shorney and Stuart Strasner (collectively, the "Incumbent
Enex Directors") -- tendered their resignations effective upon the successful
completion of the tender offer. The Incumbent Enex Directors were replaced by
the four persons constituting Middle Bay's Board of Directors in addition to
Messrs. Bassett, Herod and Christopher.
Reference is made to Middle Bay's Offer to Purchase dated February 19, 1998
(the "Offer to Purchase") and the related Letter of Transmittal, which was
provided to all Enex stockholders in February for additional information
concerning Middle Bay, an oil and gas company engaged in the exploration for oil
and gas in the United States, its tender offer, the letter of intent entered
into between Enex and Middle Bay on January 29, 1998, and the "Board Action
Condition," the steps taken by the Enex Board of Directors on March 17, 1998 was
intended to satisfy.
53
<PAGE> 65
PRINCIPAL STOCKHOLDERS OF MIDDLE BAY
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth the shares of Middle Bay's common and
preferred stock beneficially owned by those persons known by Middle Bay to be
the beneficial owner of more than five percent of Middle Bay's issued and
outstanding common and preferred stock as of December 31, 1997:
<TABLE>
<CAPTION>
TITLE OF AMOUNT AND NATURE OF PERCENT OF
CLASS(6) NAME AND ADDRESS OF BENEFICIAL OWNER BENEFICIAL OWNERSHIP CLASS
- ---------- ------------------------------------ -------------------- ----------
<S> <C> <C> <C>
Common C. J. Lett, III(1)(4) 1,197,556 13.8%
9320 East Central
Wichita, Kansas 67206
Common Kaiser-Francis Oil Company(4) 3,333,334 38.3
6733 South Yale
Tulsa, Oklahoma 74136
Common Weskids, L.P.(2)(5) 843,687 10.0
310 South Street
Morristown, NJ 07960
Common Weskids, Inc. 843,687 10.0
310 South Street
Morristown, NJ 07960
Common Alvin V. Shoemaker(3)(4) 661,222 8.9
8800 First Avenue
Stone Harbor, NJ 08247
Preferred Weskids, L.P.(5) 117,467 44.1
Series B 310 South Street
Morristown, NJ 07960
Preferred Weskids, Inc. 117,467 44.1
Series B 310 South Street
Morristown, NJ 07960
Preferred Alvin V. Shoemaker(4) 117,466 44.1
Series B 8800 First Avenue
Stone Harbor, NJ 08247
Preferred Stephen W. Herod(4) 15,867 5.9
Series B 1110 Briar Ridge Drive
Houston, TX 77057
Preferred W. Tim Sexton(4) 15,867 5.9
Series B 12010 Winwood
Houston, TX 77024
</TABLE>
- ---------------
(1) Mr. Lett has agreed that, for a period of one year from February 28, 1997,
his voting power will be restricted to not more than votes representing 20%
of the total number of shares of Middle Bay's common stock issued and
outstanding and eligible to vote at the time in connection with any vote
taken or consent, waiver or ratification given in connection with the
election or removal of directors of Middle Bay.
(2) Weskids, L.P. has agreed that, for a period of one year from June 30, 1997,
its voting power will be restricted to not more than votes representing 20%
of the total number of shares of Middle Bay's common stock issued and
outstanding and eligible to vote at the time in connection with any vote
taken or consent, waiver or ratification given in connection with the
election or removal of directors of Middle Bay.
(3) Mr. Shoemaker has agreed that, for a period of one year from June 30, 1997,
his voting power will be restricted to not more than votes representing 20%
of the total number of shares of Middle Bay's common
54
<PAGE> 66
stock issued and outstanding and eligible to vote at the time in connection
with any vote taken or consent, waiver or ratification given in connection
with the election or removal of directors of Middle Bay.
(4) The nature of the beneficial ownership is sole voting and investment power.
(5) Weskids, L.P. is presently the beneficial owner and has sole voting and
disposition power of 843,687 shares of common stock and 117,467 shares of
Series B preferred stock immediately convertible into not less than 117,467
shares of Middle Bay's common stock. The exact conversion ratio is
determined by the terms of the merger. Weskids, Inc. is the general partner
of Weskids, L.P. and effectively controls Weskids, L.P. The officers and
directors of Weskids, Inc. are as follows: J. Peter Simon, director; William
Edward Simon, Jr., director; Michael B. Lenard, President; Mark J. Butler,
Vice President/Treasurer; and Christine W. Jenkins, Secretary.
(6) Series B preferred stock is convertible into common stock at a variable
ratio of not less than one-to-one.
SECURITY OWNERSHIP OF MANAGEMENT
The following table sets forth the shares of Middle Bay's common stock
beneficially owned by each director and executive officer and all directors and
executive officers as a group, all as of February 28, 1998:
<TABLE>
<CAPTION>
CONV. PREFERRED NAME AND ADDRESS OF AMOUNT AND NATURE OF PERCENT OF
& OPTIONS STOCK BENEFICIAL OWNER BENEFICIAL OWNERSHIP(6) CLASS
- --------------- --------- ------------------------ ----------------------- ----------
<C> <C> <S> <C> <C>
152,000 24,711 John J. Bassett 176,711 2.0%
4326 Noble Oak Trail
Houston, TX 77059
94,500 25,796 Frank C. Turner, II 120,296 1.4
1406 Tallow Court
Seabrook, TX 77586
114,500 6,996 Robert W. Hammons 121,496 1.4
915 Kentbury Court
Katy, TX 77450
8,000 5,000 Lynn M. Davis 13,000 0.1
121 Donna Circle
Daphne, AL 36526
34,734 376,241 Edward P. Turner, Jr.(1) 410,975 4.7
100 Central Avenue
Chatom, AL 36518
15,000 1,182,556 C. J. Lett, III(2) 1,197,556 13.8
9320 East Central
Wichita, KS 67206
34,734 -- Frank E. Bolling, Jr. 34,734 0.4
3830 Kendale Drive
Gautier, MS 39553
-- 12,000 Gary R Christopher(3) 12,000 0.1
6733 South Yale
Tulsa, OK 74136
117,466 661,222 Alvin V. Shoemaker(4) 778,688 8.9
8800 First Avenue
Stone Harbor, NJ 08247
</TABLE>
55
<PAGE> 67
<TABLE>
<CAPTION>
CONV. PREFERRED NAME AND ADDRESS OF AMOUNT AND NATURE OF PERCENT OF
& OPTIONS STOCK BENEFICIAL OWNER BENEFICIAL OWNERSHIP(6) CLASS
- --------------- --------- ------------------------ ----------------------- ----------
<C> <C> <S> <C> <C>
15,867 109,816 Stephen W. Herod(5) 125,683 1.4%
1110 Briar Ridge Drive
Houston, TX 77057
All executive officers 2,991,139 34.3
and directors as a group
(10 persons)
</TABLE>
- ---------------
(1) Includes 362,803 shares owned by Bay City Energy Group, Inc. in which Mr.
Turner has indirect voting control but not a direct beneficial interest, and
13,438 shares over which Mr. Turner has sole voting and dispositive power.
(2) Mr. Lett was named Executive Vice President of Middle Bay on February 28,
1997 in connection with the Bison Merger (see "Business Development"). Mr.
Lett's voting rights are restricted until February 28, 1998.
(3) Mr. Christopher is an officer of Kaiser-Francis Oil Company which is the
beneficial owner of 3,333,334 of Middle Bay's common shares.
(4) Consists of 117,466 shares of Series B preferred stock convertible into
117,466 common shares of Middle Bay. Mr. Shoemaker's voting rights are
restricted until June 30, 1998.
(5) Consists of 15,867 shares of Series B preferred stock convertible into
15,867 common shares of Middle Bay. Mr. Herod's voting rights are restricted
in the same manner as Weskids, L.P. and Mr. Shoemaker.
(6) The nature of beneficial ownership for all shares is sole voting and
investment power.
PRINCIPAL STOCKHOLDERS OF ENEX
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth the shares of Enex's common beneficially
owned by those persons known by Enex to be the beneficial owner of more than
five percent of Enex's issued and outstanding common as of March 31, 1998:
<TABLE>
<CAPTION>
NAME AND ADDRESS OF AMOUNT AND NATURE OF PERCENT OF
TITLE OF CLASS BENEFICIAL OWNER BENEFICIAL OWNERSHIP CLASS
- -------------- -------------------- -------------------- ----------
<S> <C> <C> <C>
Common Middle Bay Oil 1,064,032 79.2%
Company, Inc.
1221 Lamar, Suite
1020
Houston, Texas 77010
</TABLE>
SECURITY OWNERSHIP OF MANAGEMENT
No director or officer of Enex is the beneficial owner of any securities of
Enex.
56
<PAGE> 68
MANAGEMENT OF MIDDLE BAY
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth the executive officers and directors of
Middle Bay as of March 31, 1998. All directors serve for a one-year term or
until the next Annual Meeting of Shareholders of Middle Bay. The Board of
Directors held three meetings during the fiscal year ended December 31, 1997.
Each director attended all meetings of the Board. Executive officers serve at
the pleasure of the Board of Directors.
<TABLE>
<CAPTION>
DIRECTOR
NAME AGE POSITION(S) HELD SINCE
---- --- ---------------- --------
<S> <C> <C> <C>
John J. Bassett(1)........................ 39 Chairman, President and Chief Executive 1989
Officer
C. J. Lett, III........................... 40 Executive Vice President 1997
Frank C. Turner, II(2)(3)................. 37 Vice President and Chief Financial N/A
Officer
Stephen W. Herod(3)....................... 38 Vice President 1997
Robert W. Hammons......................... 44 VicePresident N/A
Lynn M. Davis............................. 49 Secretary and Treasurer N/A
Edward P. Turner, Jr.(1)(2)............... 68 Director 1989
Frank E. Bolling, Jr. .................... 38 Director 1992
Alvin V. Shoemaker(4)..................... 59 Director 1997
Gary R. Christopher....................... 48 Director 1997
</TABLE>
- ---------------
(1) John J. Bassett and Edward P. Turner, Jr. were elected upon the organization
of Middle Bay Oil Company as a corporation in November, 1992. Previously
they served as directors of Bay City Minerals, Inc., the general partner of
the Predecessor Partnership.
(2) Edward P. Turner, Jr. and Frank C. Turner, II, are father and son.
(3) Mr. Herod replaced Frank C. Turner, II effective July 3, 1997.
(4) Mr. Shoemaker replaced C. Noell Rather effective July 28, 1997.
John J. Bassett has served as President and a director of Middle Bay since
1992 and was elected Chairman of the Board of Directors in 1992. He served as
President of the general partner of the Predecessor Partnership from 1987 to
1992. He also serves as a director and President of Bay City Energy Group, Inc.,
a principal shareholder of Middle Bay.
Stephen W. Herod has served as Vice President -- Corporate Development and
a director of Middle Bay since July 1, 1997. Mr. Herod served as President and a
director of Shore Oil Company from April, 1992 until the merger of Shore and
Middle Bay on June 30, 1997. He joined Shore's predecessor as Controller in
February, 1991. In addition, Mr. Herod was employed by Conquest Exploration
Company from 1984 until 1991 in various financial management positions,
including Operations Accounting Manager. From 1981 to 1984, Mr. Herod was
employed by Superior Oil Company as a financial analyst.
Frank C. Turner, II has served as Vice President and Chief Financial
Officer for Middle Bay since its organization as a corporation in 1992. He had
previously served as Vice President of Finance for the general partner of the
Predecessor Partnership since 1990. From 1987 to 1990, Mr. Turner was employed
by Sonat, Inc. as a financial analyst. He also serves as a director and Vice
President of Bay City Energy Group, Inc.
Robert W. Hammons was hired by Middle Bay in April, 1992 as a reservoir
engineer. Mr. Hammons was appointed Vice President of Engineering of Middle Bay
in 1993. Prior to his employment with Middle Bay, he had worked with Bay City
Minerals, Inc. as an independent petroleum engineering consultant since 1987.
Prior to 1987, Mr. Hammons was employed as manager of reservoir engineering for
Marion Corporation.
57
<PAGE> 69
Lynn M. Davis has been Secretary and Treasurer for Middle Bay since 1992.
She has served as Secretary-Treasurer of the general partner of the Predecessor
Partnership since 1984 and as a director since 1988. Ms. Davis also serves as a
director and Secretary-Treasurer for Bay City Energy Group, Inc.
Edward P. Turner, Jr. served as President of Bay City Minerals, Inc. from
1975 to 1987. He is a member of the Alabama State Bar and a managing partner of
the law firm of Turner, Onderdonk, Kimbrough & Howell, P.A., in Chatom, Alabama.
A substantial amount of his practice is devoted to oil and gas law. Mr. Turner
also serves as a director of Bay City Energy Group, Inc.
Frank E. Bolling, Jr. has been employed by Midstream Fuel Services, Inc. as
Vice President of Retail Operations since February, 1995. Prior to his
employment with Midstream, Mr. Bolling served as Vice President and General
Manager of Dantzler Bulk Plant, Inc., a distributor for Chevron U.S.A., Inc.
with annual sales in excess of $25 million. Mr. Bolling served as sales manager
for Dantzler from 1987 to 1989. Prior to 1987, Mr. Bolling was employed by Bay
City Minerals, Inc.
Alvin V. Shoemaker is a former Chairman of the Board of First Boston
Corporation and former President of Blyth Eastman Paine Webber. He has also
worked for the U.S. Treasury. He has been Chairman of the Board of Trustees of
the University of Pennsylvania, Vice Chairman of the Securities Industry
Association and a director of Harcourt Brace Jovanovich, Royal Insurance of
America, the Council on Foreign Relations and the Wharton School of Finance
Board. Mr. Shoemaker is also a director of Hanover Compressor Company.
Gary R. Christopher is Acquisitions Coordinator of Kaiser-Francis Oil
Company, a position he has held since February, 1996. From 1991 to 1996, Mr.
Christopher served as Senior Vice President and Manager of Energy Lending for
the Bank of Oklahoma. He continues to serve as a consultant to the Bank of
Oklahoma. Kaiser-Francis Oil Company owns 1,166,667 shares of Middle Bay's
Series A Preferred stock; each such preferred share is convertible into two
shares of common stock.
C. J. Lett, III has served as Executive Vice President for Middle Bay since
February 28, 1997. Mr. Lett is also President and a director of Bison Energy
Corporation, a position he has held since 1981.
AUDIT AND COMPENSATION COMMITTEES
The members of the Audit Committee are Gary R. Christopher, Frank E.
Bolling, Jr. and Alvin V. Shoemaker. The functions of the Audit Committee
include recommending to the Board of Directors the independent auditors;
reviewing and approving the planned scope of the annual audit; proposing fee
arrangements; reviewing the results of the annual audit; reviewing the adequacy
of the accounting and financial controls; reviewing the independence of the
independent auditors; approving all assignments to be performed by the
independent auditors; and instructing the independent auditors, as deemed
appropriate, to undertake special assignments.
The members of the Compensation Committee are John J. Bassett, Edward P.
Turner, Jr. and Frank E. Bolling, Jr. The functions of the Compensation
Committee are to approve or recommend for approval to the Board of Directors,
the compensation and remuneration arrangements for directors and senior
management.
58
<PAGE> 70
EXECUTIVE COMPENSATION
The following table sets forth the aggregate cash compensation earned by
and paid to Middle Bay's executive officers for the periods ended December 31,
1995 through December 31, 1997:
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
-----------------------
AWARDS
----------
SECURITIES
ANNUAL COMPENSATION UNDERLYING PAYOUTS
----------------------------------- RESTR. OPTIONS/ ---------- ALL OTHER
OTHER ANNUAL STOCK SARS LTIP COMPENSATION
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) COMPENSATION AWARDS($) (#) PAYOUTS($) ($)
- --------------------------- ---- --------- -------- ------------ --------- ---------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
John J. Bassett........... 1997 95,521 6,001 -- 129,545 132,000 -- 13,032
President & 1996 58,075 -- -- -- 20,000 -- 2,271
Chief Executive 1995 56,250 -- -- -- -- -- 11,371
Officer
Frank C. Turner, II....... 1997 85,729 6,000 -- 57,960 94,500 -- 16,250
Vice President & 1996 54,458 -- -- -- 20,000 -- 2,174
CFO 1995 50,083 -- -- -- -- -- 10,775
Robert W. Hammons......... 1997 85,729 6,000 -- 57,960 94,500 -- 12,500
Vice President -- 1996 58,075 -- -- -- 20,000 -- 2,271
Engineering 1995 56,250 -- -- -- -- -- 11,360
</TABLE>
OPTION GRANTS IN LAST FISCAL YEAR
The 1995 Stock Option and Stock Appreciation Rights Plan (the "Plan") is
administered by the Compensation Committee (the "Committee") of the Board of
Directors. At least two members of the Committee must be disinterested
nonemployee directors. The Committee is authorized to determine the employees,
including officers, to whom options or rights are granted. Each option or right
granted shall be on such terms and conditions consistent with the Plan as the
Committee may determine, but the duration of any option or right shall be not
greater than ten years or less than five years from the date of grant.
Options or rights grants shall be made under the Plan only to persons who
are officers or salaried employees of Middle Bay or are nonemployee directors.
The aggregate number of shares of common stock of Middle Bay which could be
subject to options or rights under the Plan during 1997 was 500,000. During the
fiscal year ended December 31, 1997, options covering 295,000 shares were issued
under the Plan.
The option price of shares covered by options granted under the Plan may
not be less than the fair market value at the time the option is granted. The
option price must be paid in full in cash or cash equivalent at the time of
purchase or prior to delivery of the shares in accordance with cash payment
arrangements acceptable to the Committee. If the Committee so determines, the
option price may also be paid in shares of Middle Bay's common stock already
owned by the optionee. The Committee has discretion to determine the time or
times when options become exercisable, within the limits set forth in the Plan.
All options and rights granted under the Plan will, however, become fully
exercisable if there is a change in control (as defined in the Plan) of Middle
Bay.
59
<PAGE> 71
The following table provides certain information with respect to all
options granted during the fiscal year ended December 31, 1997 to any executive
officer or director of Middle Bay; 295,000 options were granted under the Plan
and 225,000 were granted outside of the Plan:
INDIVIDUAL GRANTS
<TABLE>
<CAPTION>
NUMBER OF
SECURITIES % OF TOTAL
UNDERLYING OPTIONS/SARS
OPTIONS/ GRANTED TO
SARS EMPLOYEES IN EXERCISE OR BASE EXPIRATION
NAME GRANTED(#) FISCAL YEAR PRICE ($/SH) DATE
---- ----------- ------------ ---------------- ----------
<S> <C> <C> <C> <C>
John J. Bassett........................... 100,000 19.0% 5.50 2/13/2007
32,000 6.0 6.00 2/6/2007
Frank C. Turner, II....................... 62,500 12.0 5.50 2/13/2007
32,000 6.0 6.00 2/6/2007
Robert W. Hammons......................... 62,500 12.0 5.50 2/13/2007
32,000 6.0 6.00 2/6/2007
Lynn M. Davis............................. 8,000 2.0 6.00 2/6/2007
Edward P. Turner, Jr.*.................... 21,400 4.0 6.00 2/6/2007
Frank E. Bolling, Jr.*.................... 21,400 4.0 6.00 2/6/2007
C. Noell Rather**......................... 21,200 4.0 6.00 2/6/2007
</TABLE>
- ---------------
* Nonemployee director
** Former nonemployee director
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND OPTION VALUE TABLE AS OF
DECEMBER 31, 1997
The following table sets forth certain information concerning each exercise
of stock options during the year ended December 31, 1997, by each of the named
executive officers and directors and the aggregated fiscal year-end value of the
unexercised options of each such named executive officer and director:
INDIVIDUAL GRANTS
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY
OPTIONS/SARS AT OPTIONS/SARS AT
SHARES FY END(#) FY END($)
ACQUIRED VALUE --------------------------- ---------------------------
NAME ON EXERCISE(#) REALIZED($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- -------------- ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
John J. Bassett........... -- -- -- 152,000 -- 728,000
Frank C. Turner, II....... 20,000 115,000 20,000 94,500 150,000 409,250
Robert W. Hammons......... -- -- -- 114,500 -- 559,250
Lynn M. Davis............. 5,000 38,750 -- 8,000 37,500 32,000
Edward P. Turner, Jr.*.... -- -- -- 34,734 -- 185,600
Frank E. Bolling, Jr.*.... -- -- -- 34,733 -- 185,600
</TABLE>
- ---------------
* Nonemployee director
OTHER COMPENSATION UNDER PLANS
Middle Bay established a SEP/IRA retirement plan (the "SEP Plan") in 1993
which allows for a maximum discretionary Company contribution of 15% of total
wages paid to employees for the year. For the years ended December 31, 1997,
1996 and 1995, Middle Bay contributed a total of $51,500, $5,000 and $30,000 to
the SEP Plan, respectively, including $32,064, $3,068 and $18,505, respectively,
for all executive officers as a group.
Middle Bay established a 401-K Plan in October, 1997 which allows for
voluntary contributions by the employees and the employer. No Company
contributions were made in 1997.
60
<PAGE> 72
Middle Bay has no other retirement, pension/profit sharing or other
deferred compensation plan for its employees.
LONG-TERM INCENTIVE PLAN ("LTIP") AWARDS TABLE
In March, 1995, the Board of Directors adopted an employee incentive
compensation plan whereby the proceeds equivalent to 1% net profits interest
(the "net profits interest") in all oil and gas properties, drilling prospects
and divestitures acquired or made after January 1, 1994 are paid into a fund for
incentive compensation awards to employees. For the years ended December 31,
1996 and 1995, Middle Bay paid $6,916 and $30,000, respectively, to employees
through the employee incentive plan, including $4,897 and $21,245 for all
executive officers as a group. No amount was paid into the plan in 1997.
DIRECTORS' FEES
Directors of Middle Bay receive a fee of $500 per meeting and are
reimbursed for documented travel expenses. Certain nonemployee directors have
received stock options for their services as directors (see "Option Grants in
Last Fiscal Year," above).
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT
Mr. Bassett and Mr. Hammons in January, 1997, signed employment agreements
with Middle Bay which extend through January 31, 2002 and January 31, 2000,
respectively, with automatic one-year extensions upon each anniversary date of
the employment agreement thereafter unless either party gives at least 30 days'
notice of termination. Each employment agreement is terminable by Middle Bay
before expiration of the term if such termination is for cause (as specified in
the employment agreement). The executive employment agreements provide for an
annual salary of not less than the base salaries of $95,000 and $85,000,
respectively, which amounts may be adjusted from time to time by the Board of
Directors upon the recommendation of the Compensation Committee. They also
provide for fringe benefits in accordance with Middle Bay's policies adopted
from time to time for salaried executive employees holding comparable positions.
Mr. Herod executed an employment agreement with Middle Bay with an
effective date of July 1, 1997 and extending through June 30, 1999, with
automatic one-year extensions upon each anniversary date of the employment
agreement thereafter unless either party gives at least 30 days' notice of
termination. The employment agreement is terminable by Middle Bay before
expiration of the term if such termination is for cause (as specified in the
employment agreement). The executive employment agreement provides for an annual
salary of not less than the base salary of $100,000, which amount may be
adjusted from time to time by the Board of Directors upon the recommendation of
the Compensation Committee. It also provides for fringe benefits in accordance
with Middle Bay's policies adopted from time to time for salaried executive
employees holding comparable positions.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Edward P. Turner, Jr., a director of Middle Bay, is managing partner of the
law firm of Turner, Onderdonk, Kimbrough & Howell, P.A., Middle Bay's general
counsel for certain corporate and oil and gas matters. For the years ended
December 31, 1995 through 1997, Middle Bay paid legal fees to Mr. Turner's firm
of $787, $1,560 and $2,874, respectively, for legal services. Mr. Turner's firm
charges Middle Bay for its services on the same basis as it charges other
business clients for similar services rendered. Middle Bay intends to continue
to use Mr. Turner's firm as its primary local counsel in Alabama and will pay
reasonable fees for such future services.
Bay City Energy Group, Inc., is presently indebted to Middle Bay in the
amount of $ ($139,005 of principal and $ of accrued interest).
The note payable was renegotiated on December 31, 1995 and is due in full on
January 1, 2001, plus interest at an annual fixed rate of 5%. The note payable
is secured by 75,000 shares of Middle Bay's common stock. Edward P. Turner, Jr.,
a director of Middle Bay, has indirect voting control but not a beneficial
interest in Bay City Energy Group, Inc.
61
<PAGE> 73
On December 31, 1996, NPC Energy Corp., then a company indirectly
controlled by C. J. Lett, III through Bison Energy Corporation ("Bison"), merged
with Middle Bay in exchange for 562,000 shares of common stock of Middle Bay and
$1,226,400 cash. Subsequently, in February, 1997, Middle Bay acquired Bison as a
wholly-owned subsidiary pursuant to an Agreement and Plan of Merger whereby Mr.
Lett received net cash consideration of $5.9 million plus 1,167,556 shares of
Middle Bay's common stock, and the 562,000 shares held by Bison (as a result of
the NPC Merger) were canceled (see "Business Development").
Gary R. Christopher, a director of Middle Bay, is employed by
Kaiser-Francis Oil Company which directly owns 3,333,334 common shares or 39.1%
of Middle Bay Common Stock as of May 31st 1998.
62
<PAGE> 74
MANAGEMENT OF ENEX
EXECUTIVE OFFICERS AND DIRECTORS
Effective with the closing of the Tender Offer, the then officers and
directors of Enex resigned and were replaced by the officers and directors of
Middle Bay (see "Management of Middle Bay"). Accordingly, the following table
sets forth the executive officers and directors of Enex as of May 31, 1998. All
directors serve for a one-year term or until the next Annual Meeting of
Shareholders of Enex. The officers serve at the pleasure of the Board of
Directors.
<TABLE>
<CAPTION>
DIRECTOR
NAME AGE POSITION(S) HELD SINCE
- ---- --- ---------------- --------
<S> <C> <C> <C>
John J. Bassett........................ 39 Chairman, President and Chief Executive 1998
Officer
C. J. Lett, III........................ 40 Executive Vice President 1998
Frank C. Turner, II.................... 37 Vice President and Chief Financial N/A
Officer
Stephen W. Herod....................... 38 Vice President 1998
Robert W. Hammons...................... 44 Vice President N/A
Lynn M. Davis.......................... 49 Secretary and Treasurer N/A
Edward P. Turner, Jr. ................. 68 Director 1998
Frank E. Bolling, Jr. ................. 38 Director 1998
Alvin V. Shoemaker..................... 59 Director 1998
Gary R. Christopher.................... 48 Director 1998
</TABLE>
EXECUTIVE COMPENSATION
The officers and directors of Enex are compensated by Middle Bay, as set
forth under "Management of Middle Bay -- Executive Compensation," and are not
paid separately for their services to Enex. There are no options presently
outstanding to purchase any Enex securities, nor are there any employment
contracts or retirement, pension, profit-sharing or other deferred compensation
plans presently in force.
63
<PAGE> 75
COMPARATIVE RIGHTS OF STOCKHOLDERS OF
MIDDLE BAY AND ENEX
The rights of holders of Enex Common Stock are currently governed by
Delaware law, Enex's Certificate of Incorporation and Enex's Bylaws. Upon
consummation of the Merger, holders of Enex Common Stock will become holders of
Middle Bay Common Stock, and their rights as holders of Middle Bay Common Stock
will be governed by Alabama law and Middle Bay's Articles of Incorporation and
Bylaws. Set forth below is an explanation of material differences between the
rights of holders of Enex Common Stock and the rights of the holders of Middle
Bay Common Stock.
SPECIAL VOTE REQUIRED FOR CERTAIN COMBINATIONS
Section 203 of the Delaware General Corporation Law ("DGCL") prohibits a
corporation from engaging in a "business combination" (as hereinafter defined)
with an "interested stockholder" (defined generally to mean a person who,
together with his affiliates, owns or, if the person is an affiliate of the
corporation, did own within the last three years 15% or more of the outstanding
voting stock of the corporation) for a period of three years after the time of
the transaction in which the person became an interested stockholder, unless
(i) prior to the time of the business combination, the Board of
Directors of the corporation approved the business combination or the
transaction in which the stockholder became an interested stockholder,
(ii) as a result of the business combination, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, or
(iii) on or subsequent to the date of the business combination, the
Board of Directors and the holders of at least 66 2/3% of the outstanding
voting stock not owned by the interested stockholder approve the business
combination.
The DGCL defines a "business combination" generally as: (a) a merger or
consolidation with the interested stockholder or with any other corporation if
the merger or consolidation is caused by the interested stockholder; (b) a sale
or other disposition to or with an interested stockholder of assets with an
aggregate market value greater than or equal to 10% or more of either the
aggregate market value of all assets of the corporation or the aggregate market
value of all of the outstanding stock of the corporation; (c) with certain
exceptions, any transaction resulting in the issuance or transfer by the
corporation or any majority-owned subsidiary of any stock of the corporation or
such subsidiary to the interested stockholder; (d) any transaction involving the
corporation or a majority-owned subsidiary that has the effect of increasing the
proportionate share of the stock of the corporation or any such subsidiary owned
by the interested stockholder; or (e) any receipt of the interested stockholder
of the benefit of any loans or other financial benefits provided by the
corporation or any majority-owned subsidiary.
Provisions similar to Section 203 are contained in Enex' Certificate of
Incorporation. Enex' provisions differ from the DGCL by requiring a higher
percentage of all stockholders' voting as a class to approve a Business
Combination (as hereinafter defined) with an Interested Stockholder (as
hereinafter defined). Pursuant to these provisions, an "Interested Stockholder"
is defined generally to mean a corporation, person or entity who, together with
his affiliates and associates, beneficially owns or has the right to acquire 20%
or more of the outstanding voting stock of Enex. A Business Combination
involving Enex may only be consummated if
(i) the Business Combination has been approved by the affirmative vote
of a majority of the then outstanding shares of Enex Common Stock,
excluding from the number of shares deemed to be outstanding at the time of
such vote and from such vote on the Business Combination all shares of Enex
Common Stock beneficially owned by the Interested Stockholder,
(ii) the Business Combination has been approved by a majority of the
Continuing Directors (as defined below), or
(iii) the consideration paid in the Business Combination satisfies
certain fair price provisions.
64
<PAGE> 76
The foregoing provisions relating to transactions with Interested
Stockholders may not be amended except with the affirmative vote of the holders
of at least 80% of the voting stock of Enex, unless such amendment has been
recommended to the stockholders of Enex by a majority of the Continuing
Directors at a meeting at which at least three-quarters of the Continuing
Directors are present.
Middle Bay's Amended and Restated Articles of Incorporation do not contain
a similar provision.
VOTE REQUIRED FOR CORPORATE TRANSACTIONS AND OTHER MATTERS
Under the DGCL, an amendment to the corporation's certificate of
incorporation requires the affirmative vote of the holders of a majority of the
outstanding stock of the corporation entitled to vote thereon and a majority of
the outstanding stock of each class entitled to vote thereon as a class, unless
the corporation's certificate of incorporation provides for a higher percentage.
The DGCL also provides that the holders of a majority of the outstanding stock
of the corporation entitled to vote thereon may approve an agreement of merger
or consolidation or the dissolution of a corporation.
Enex's Certificate of Incorporation includes provisions that set a higher
voting requirement for certain Business Combinations, as well as amendments to
Enex's Certificate of Incorporation dealing with Business Combinations. Enex's
Certificate of Incorporation also requires the affirmative vote of the holders
of 66 2/3% or more of the combined voting power of the then outstanding shares
of voting stock of Enex to amend, alter or repeal or adopt any provision
inconsistent with the provisions in its Certificate of Incorporation relating to
the election, removal, rights or duties of its Board of Directors, the
prohibition of action by stockholders by written consent, the calling of special
meetings of stockholders and the limitation of liability of directors of Enex to
the fullest extent permitted by Delaware law.
Middle Bay's Amended and Restated Articles of Incorporation do not contain
such provisions. Alabama law generally requires that a merger or business
combination be approved by the affirmative vote of holders of 66 2/3% or more of
the outstanding shares entitled to vote thereon. Other matters requiring the
vote of stockholders are approved by the affirmative vote of holders of a
majority of the outstanding shares entitled to vote.
DISPOSITION OF ASSETS
Under the DGCL, all sales, leases or exchanges of all, or substantially
all, of the assets of a corporation must be authorized by a resolution adopted
by the holders of a majority of the outstanding stock of the corporation
entitled to vote thereon. Enex's Certificate of Incorporation includes
provisions that set higher voting requirements for asset sales and leases
involving Business Combinations. See "Special Vote Required for Certain Business
Combinations" for a description of the higher voting requirements.
Under Alabama law, the vote or consent of a majority of the outstanding
stock of Middle Bay entitled to vote thereon is required to authorize such
transactions. Middle Bay has no special voting requirements in its Articles of
Incorporation.
CALLING OF SPECIAL MEETINGS
Under the DGCL, special meetings of stockholders may be called only by the
Board of Directors.
Alabama law provides that special meetings may be called by the Board of
Directors or upon demand by holders of shares representing at least 10% of all
votes entitled to be cast on any issue proposed to be considered at the special
meeting.
ELECTION OF DIRECTORS
The Certificate of Incorporation of Enex provides that the number of
directors of Enex shall be not less than six nor more than 15. The Certificate
of Incorporation provides that the Board shall be divided into three classes of
directors, with the classes to be as nearly equal in number of directors as
possible. One class of directors is elected each year for a three-year term by
the stockholders representing a plurality of the total
65
<PAGE> 77
shares voting in the election of directors. The Certificate of Incorporation and
Enex's Bylaws provide that no director shall be removed from office by vote or
other action of the stockholders except for cause and only upon the vote of
two-thirds of the shares then entitled to vote at an election of directors.
Enex's Certificate of Incorporation also provides that no action required or
permitted to be taken at any annual or special meeting of stockholders of Enex
may be taken without a meeting, and the power of stockholders to act by written
consent is specifically denied. Enex's Bylaws provide that special meetings of
stockholders may be called only by the Enex Board of Directors or the President
of Enex.
Middle Bay's Amended and Restated Articles of Incorporation and Bylaws
contain no provision requiring classification of directors, and directors may be
elected or removed by majority vote of the shareholders.
QUORUM REQUIREMENTS FOR DIRECTORS' MEETINGS
Under the DGCL and Alabama law, a majority of the total number of directors
then in office constitutes a quorum for the transaction of business. The vote of
a majority of the directors at a meeting at which a quorum is present shall be
the act of the Board of Directors under both Delaware and Alabama law.
ENEX COMMON STOCK PURCHASE RIGHTS
A Rights Agreement was entered into between Enex and American Securities
Transfer, Incorporated on September 4, 1990, as amended April 12, 1994 and March
17, 1998, and the Rights Agreement was filed with and the rights are described
in Enex's current report on Form 8-K dated September 4, 1990 and Form 8-K dated
April 12, 1994. The Rights Agreement provided for a potential dividend of one
common stock purchase right ("Right") for each outstanding share of common stock
of Enex held of record as of September 18, 1990 (the "Record Date"). Rights also
attached to shares of Enex Common Stock issued after the Record Date, but before
the date the Rights are to be distributed. The Rights have not been distributed
to Enex shareholders and are to be distributed only in certain circumstances
involving an attempted hostile takeover of Enex. On March 17, 1998, Enex amended
the Rights Agreement to make it inapplicable to the Tender Offer by Middle Bay.
If the Merger is consummated, the Rights Agreement will be terminated.
66
<PAGE> 78
SELECTED PRO FORMA CONSOLIDATED FINANCIAL
INFORMATION (UNAUDITED)
The unaudited pro forma consolidated financial statements have been
prepared to give effect to the Merger as if it had taken place on March 31, 1998
with respect to the unaudited pro forma consolidated balance sheet, and as of
January 1, 1997 with respect to the unaudited pro forma consolidated statements
of operations for the year ended December 31, 1997 and the three months ended
March 31, 1998. The unaudited pro forma consolidated financial statements have
also been prepared to give effect to the merger of Bison Energy Corporation and
Shore Oil Company with Middle Bay during 1997.
The unaudited pro forma adjustments are based upon available financial
information and assumptions that the management of Middle Bay believe are
reasonable. The unaudited pro forma consolidated financial statements included
herein do not purport to represent the financial position or results of
operations which would have occurred had such transactions been consummated on
the dates indicated or Middle Bay's financial position or results of operations
for any future date or period.
The following unaudited pro forma consolidated financial statements and
notes thereto should be read in conjunction with the consolidated financial
statements and related notes of Middle Bay and Enex included elsewhere in this
Proxy Statement/Prospectus and incorporated by reference herein.
67
<PAGE> 79
MIDDLE BAY OIL COMPANY, INC.
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
MARCH 31, 1998
<TABLE>
<CAPTION>
PRO FORMA
COMBINED PRO FORMA
MIDDLE BAY ADJUSTMENTS COMBINED
------------ ----------- ------------
<S> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents....................... $ 5,947,033 $ -- $ 5,947,033
Notes and Accounts receivable -- Trade.......... 2,949,999 -- 2,949,999
Other current assets............................ 471,317 -- 471,317
Assets held for resale.......................... 206,466 -- 206,466
------------ ----------- ------------
Total current assets.................... 9,574,815 -- 9,574,815
Notes receivable -- Stockholder................. 167,902 -- 167,902
Property, plant and equipment, at cost
Oil and gas properties (successful efforts
method)...................................... 82,707,910 (1,370,068)(1) 81,337,842
Furniture, fixtures and other................... 834,745 -- 834,745
------------ ----------- ------------
83,542,655 (1,370,068) 82,172,587
Accumulated depreciation and depletion.......... (31,754,337) (31,754,337)
------------ ----------- ------------
51,788,318 (1,370,068) 50,418,250
Other assets.................................... 206,713 -- 206,713
------------ ----------- ------------
$ 61,737,748 $(1,370,068) $ 60,367,680
============ =========== ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current maturity of long-term debt.............. $ 2,602,888 $ -- $ 2,602,888
Accounts payable and accrued expenses........... 3,392,307 -- 3,392,307
Oil and gas revenue payable..................... 196,370 -- 196,370
Other current liabilities....................... 908,055 -- 908,055
------------ ----------- ------------
Total current liabilities............... 7,099,620 -- 7,099,620
Long-term debt.................................. 24,499,568 -- 24,499,568
Deferred income taxes........................... 4,052,056 (3,410,479)(1) 641,577
Minority Interest............................... 7,668,395 (2,124,189)(1) 5,544,206
------------ ----------- ------------
Total liabilities....................... 43,319,639 (5,534,668) 37,784,971
Stockholders' equity:
Preferred stock................................. 3,627,000 -- 3,627,000
Common stock.................................... 157,059 11,106(1) 168,165
Additional paid-in capital...................... 32,962,632 4,153,494(1) 37,116,126
Unearned stock compensation..................... (33,750) -- (33,750)
Accumulated deficit............................. (18,226,792) -- (18,226,792)
Less cost of treasury stock; 21,773 shares...... (68,040) -- (68,040)
------------ ----------- ------------
Total stockholders' equity.............. $ 18,418,109 $ 4,164,600 $ 22,582,709
------------ ----------- ------------
$ 61,737,748 $(1,370,068) $ 60,367,680
============ =========== ============
</TABLE>
See accompanying notes to unaudited pro forma consolidated financial statements.
68
<PAGE> 80
MIDDLE BAY OIL COMPANY, INC.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
BISON & PRO FORMA PRO FORMA
SHORE COMBINED COMBINED PRO FORMA
MIDDLE BAY ACQUISITIONS ADJUSTMENTS ENEX ADJUSTMENTS COMBINED
------------ ------------ ----------- ----------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Oil and gas sales........... $ 10,213,047 $2,519,599 $ -- $ 9,093,318 $ -- $ 21,825,962
Gain on sale of properties
and gas plants............ 7,018 38,241 -- 1,925,980 -- 1,971,239
Overhead income............. -- 93,083 -- -- -- 93,083
Management income........... -- 25,778 (25,775)(9) -- -- --
Lease bonus and delay rental
income.................... 975,347 585,630 -- -- -- 1,580,977
Other income................ 237,583 83,303 -- 444,303 -- 765,189
------------ ---------- ----------- ----------- ----------- ------------
11,432,996 3,345,834 (25,778) 11,463,599 -- 28,216,450
Expenses:
Lease operating and
production taxes.......... 3,848,627 932,757 -- 3,983,129 -- 8,764,523
Geological and geophysical
costs..................... 222,808 -- -- -- -- 222,608
Gas purchases and operating
expenses.................. -- -- -- 791,403 -- 791,403
Depletion, depreciation and
amortization.............. 4,567,083 561,614 1,183,001(5) 1,633,771 843,943(2) 8,589,392
Impairments................. 21,147,823 -- -- -- -- 21,147,823
Abandonment expense......... 1,118,838 1,805 -- -- -- 1,120,643
Interest expense............ 671,081 160,275 (69,999)(10) -- 997,456(3) 1,758,813
Stock compensation
expense................... 202,500 -- -- -- -- 202,500
General, administrative and
others.................... 2,678,593 603,399 (21,000)(9) 2,061,090 -- 5,322,082
------------ ---------- ----------- ----------- ----------- ------------
34,457,133 2,279,860 1,072,002 8,469,393 1,641,399 47,919,787
Income (loss) before
minority interest, income
taxes and investee
earnings.................. (23,024,138) 1,085,774 (1,097,780) 2,994,206 (1,841,399) (21,703,337)
Minority interest........... -- -- -- (1,012,449) -- (1,012,449)
Provision for income taxes
(benefit)................. (7,444,798) 302,114 (312,996)(7) 16,082 99,640(4) (7,339,958)
Equity in net earnings of
equity investees.......... -- 36,564 (36,584)(8) -- -- --
------------ ---------- ----------- ----------- ----------- ------------
Net income (loss)........... (15,579,340) 800,224 (821,348) 1,965,675 (1,741,039) (15,375,828)
Preferred stock dividend.... 604,712 -- 173,332(6) -- -- 778,044
Net income (loss) applicable
to common stock........... $(16,184,052) $ 800,224 $ (994,680) $ 1,965,675 $(1,741,039) $(16,153,872)
============ ========== =========== =========== =========== ============
Income (loss) per share --
Primary................... $ (4.76) $ (3.26)(12)
Income (loss) per share --
Fully diluted............. $ (4.76) $ (3.26)(12)
Weighted average common
shares outstanding
Basic..................... 3,397,117 4,959,664(11)
Diluted................... 3,397,117 4,959,664(11)
</TABLE>
See accompanying notes to unaudited pro forma consolidated financial statements.
69
<PAGE> 81
MIDDLE BAY OIL COMPANY, INC.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1998
<TABLE>
<CAPTION>
PRO FORMA
COMBINED PRO FORMA
MIDDLE BAY ENEX ADJUSTMENTS COMBINED
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues:
Oil and gas sales and plant income.... $ 2,632,248 $ 2,122,335 $ -- $ 4,754,583
Gain on sale of properties and gas
plants............................. -- 671,923 -- 671,923
Other income.......................... 124,642 9,999 -- 134,641
----------- ----------- --------- -----------
2,756,890 2,804,257 -- 5,561,147
Expenses:
Lease operating and production
taxes.............................. 1,184,048 998,654 -- 2,182,702
Geological and geophysical costs...... 745,713 -- -- 745,713
Gas purchases and operating
expenses........................... -- 3,997 -- 3,997
Depletion, depreciation and
amortization....................... 1,118,136 548,028 255,248(2) 1,921,412
Impairments........................... 468,951 -- -- 468,951
Interest expense...................... 255,453 -- 209,661(3) 465,114
Stock compensation expense............ 33,750 -- -- 33,750
General, administrative and others.... 1,093,403 1,416,407 -- 2,509,810
----------- ----------- --------- -----------
4,899,454 2,967,086 464,909 8,331,449
Income (loss) before minority
interest, income taxes and investee
earnings........................... (2,142,564) (162,829) (464,909) (2,770,302)
Minority interest..................... -- 348,190 -- 348,190
Provision for income taxes
(benefit).......................... (728,472) (86,700) (8,346)(4) (823,518)
----------- ----------- --------- -----------
Net income (loss)..................... (1,414,092) (424,319) (456,563) (2,294,974)
Preferred stock dividend.............. 67,945 -- -- 67,945
Net income (loss) applicable to common
stock.............................. $(1,482,037) $ (424,319) $(456,563) $(2,362,919)
=========== =========== ========= ===========
Income (loss) per share -- Primary.... $ (0.22) $ (0.32)(12)
Income (loss) per share -- Fully
diluted............................ $ (0.22) $ (0.32)(12)
Weighted average common shares
outstanding Basic.................. 6,719,656 7,274,936(11)
Diluted............................ 6,719,656 7,274,936(11)
</TABLE>
See accompanying notes to unaudited pro forma consolidated financial statements.
70
<PAGE> 82
MIDDLE BAY OIL COMPANY, INC.
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997 AND MARCH 31, 1998
NOTE 1. BASIS OF PRESENTATION
The unaudited pro forma consolidated financial statements reflect the
effect of the proposed acquisition of the outstanding shares of Enex
Resources Corporation (Enex) not currently owned by Middle Bay Oil Company.
Middle Bay Oil Company previously acquired 79.2% of Enex on March 20, 1998. The
unaudited pro forma consolidated statement of operations for the year ended
December 31, 1997 also reflect the effect of the February 28, 1997 merger of
Bison Energy Corporation (Bison) and the June 30, 1997 merger of Shore Oil
Company (Shore) with Middle Bay Oil Company. The unaudited pro forma
consolidated financial statements have been prepared to give effect to the Enex,
Bison and Shore mergers as if they had taken place on March 31, 1998 with
respect to the unaudited pro forma consolidated balance sheet and as of January
1, 1997 with respect to the unaudited pro forma consolidated statements of
operations for the year ended December 31, 1997 and the three-month period ended
March 31, 1998. Each merger was recorded using the purchase method of
accounting.
NOTE 2. PRO FORMA ENTRIES
PRO FORMA ADJUSTMENTS FOR THE ENEX MERGER
On June , 1998, Middle Bay and Enex entered into the Merger Agreement
whereby Middle Bay purchased 20.8% of Enex, thus increasing its ownership
percentage of Enex to 100% from 79.2%. In completing the merger, Middle Bay will
exchange [INSERT EXCHANGE RATIO]
On March 27, 1998, in exchange for 79.2% ownership, Middle Bay acquired,
1,064,432 shares of the common stock of Enex for $15,966,480 or $15 per share
pursuant to Middle Bay's tender offer (the "tender offer") which began on
February 19, 1998.
The accompanying unaudited pro forma combined financial statements reflect
the following adjustments:
(1) To record the acquisition of Enex using the purchase method of
accounting. The allocation of the purchase price to the acquired assets and
liabilities is preliminary and, therefore, subject to change. Any future
adjustments to the allocation of the purchase price are not anticipated to
be material to the unaudited pro forma financial statements.
(2) To adjust depletion, depreciation and amortization to reflect
Middle Bay's purchase price allocated to the property and equipment using
the unit of production method utilized by Middle Bay.
(3) To record interest expense on the debt incurred as a result of the
Merger.
(4) To adjust the provision for income taxes for the change in taxable
income as a result of the mergers.
PRO FORMA ADJUSTMENTS FOR THE BISON AND SHORE MERGERS
Middle Bay and Bison entered into the Merger Agreement whereby Bison was
merged into and continues to exist as a wholly-owned subsidiary of Middle Bay,
effective February 28, 1997.
On June 20, 1997, Middle Bay and Shore entered into the Merger Agreement
whereby Shore was merged into and continues to exist as a wholly-owned
subsidiary of Middle Bay, effective June 30, 1997.
The mergers were accounted for as purchases of Bison and Shore by Middle
Bay and as a result of the purchase method of accounting, Middle Bay's cost of
acquiring Bison and Shore was allocated to the assets and liabilities acquired
based on estimated fair values.
71
<PAGE> 83
The accompanying Pro Forma Consolidated Statements of Operations for the
year ended December 31, 1997 has been prepared as if the Bison and Shore mergers
had occurred on January 1, 1997 and reflect the following adjustments:
(5) To adjust depletion, depreciation and amortization to reflect
Middle Bay's purchase price allocated to the property and equipment using
the unit of production method utilized by Middle Bay.
(6) To record the preferred stock dividends paid on the preferred
stock issued for the cash portion of the Bison merger and issued in the
Shore merger.
(7) To adjust the provision for income taxes for the change in taxable
income as a result of the mergers.
(8) To remove equity in net earnings of equity investees that were not
purchased.
(9) To remove management income for accounting and administrative
functions performed by Bison for other entities. Subsequent to the merger,
Bison no longer performed such accounting and administrative functions.
(10) To record the reduction in interest expense on the debt retired
in the Shore merger.
(11) To reflect the impact on the weighted average common shares
outstanding for the 2,488,889 shares of Middle Bay common stock issued in
conjunction with the Bison and Shore mergers as well as 555,280 shares of
Middle Bay common stock issued to Enex common stockholders in conjunction
with the proposed acquisition.
(12) To reflect the issuance of 388,884 shares of Series A Preferred
Stock, 266,667 shares of Series B and 2,488,889 shares of Middle Bay common
stock in conjunction with the Bison and Shore mergers in addition to
555,280 shares of Middle Bay common stock in conjunction with the purchase
of 100% of Enex. Pro forma basic net income (loss) per common share
information is computed by dividing net income (loss), applicable to common
stock by the pro forma weighted average common shares outstanding. Shares
issuable upon exercise of options and upon the conversion of preferred
stock are included in the computations of the pro forma dilutive income per
common and common equivalent share if the effect is dilutive.
LEGAL MATTERS
The validity of the shares of Middle Bay Common Stock to be issued in
connection with the Merger will be passed upon by Thrasher, Whitley, Hampton &
Morgan, Five Concourse Parkway, Suite 2150, Atlanta, Georgia 30328. Certain tax
consequences of the Merger will be passed upon for Middle Bay and Enex by
Thrasher, Whitley, Hampton & Morgan.
EXPERTS
Middle Bay's consolidated financial statements as of December 31, 1997 and
1996 and for each of the three years in the period ended December 31, 1997
incorporated by reference in this Proxy Statement/ Prospectus and the
Registration Statement, have been audited by Schultz, Watkins & Company,
independent public accountants, as indicated in their report with respect
thereto and included herein in reliance upon the authority of said firm as
experts in auditing and accounting in giving said report.
Enex's consolidated financial statements incorporated by reference in this
Proxy Statement/Prospectus and the Registration Statement from Enex's Annual
Report on Form 10-KSB for the year ended December 31, 1997 have been audited by
Deloitte & Touche, LLP, independent auditors, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in auditing
and accounting.
72
<PAGE> 84
ENEX STOCKHOLDERS' PROPOSALS
If the Merger is not consummated, any proposals of stockholders of Enex
intended to be presented at the Annual Meeting of Stockholders of Enex to be
held in 1998 must be received by Enex, addressed to the Secretary at 800
Rockmead Drive, Three Kingwood Place, Kingwood, Texas 77339, no later than
August 31, 1998, to be considered for inclusion in the proxy statement and form
of proxy relating to that meeting.
73
<PAGE> 85
APPENDIX I
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
June 17, 1998, is by and between MIDDLE BAY OIL COMPANY, INC., an Alabama
corporation ("Middle Bay"), and ENEX RESOURCES CORPORATION, a Delaware
corporation ("Enex").
W I T N E S S E T H :
WHEREAS, Middle Bay currently owns 1,064,032 shares (approximately
79.2%) of the issued and outstanding common stock of Enex;
WHEREAS, this Agreement sets forth the terms and conditions under which
Enex shall merge with Middle Bay (the "Merger"), and in connection therewith the
Enex Stockholders, as defined below, shall receive shares of Middle Bay Common
Stock, as defined below, upon the terms and subject to the conditions set forth
herein; and
WHEREAS, the parties intend that, upon completion of the transactions
contemplated by this Agreement, Enex will be dissolved and Middle Bay will be
the surviving corporation of the Merger;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Middle Bay and Enex hereby agree as follows:
ARTICLE I
DEFINITIONS
For convenience, certain terms used in more than one part of this
Agreement are listed in alphabetical order and defined or referred to below
(such terms as well as any other terms defined elsewhere in this Agreement shall
be equally applicable to both the singular and plural forms of the terms
defined).
"Agreement" shall mean this Agreement and Plan of Merger and the
Exhibits hereto.
"Alabama Law" means the Alabama Business Corporation Act, as amended.
"Certificate" shall mean a certificate representing Enex Common Stock.
"Closing" is defined in Section 3.1 hereof.
"Closing Date" is defined in Section 3.1 hereof.
- 1 -
<PAGE> 86
"Constituent Corporations" means Enex and Middle Bay.
"Converted Shares" means the shares of Enex Common Stock that are
issued and outstanding immediately prior to the Effective Time (other than
Dissenting Shares and shares held by Middle Bay).
"Delaware Law" means the Delaware General Corporation Law, as amended.
"Dissenting Shares" is defined in Section 4.1 hereof.
"Effective Time" is defined in Section 2.2 hereof.
"Enex" is defined above in the preamble.
"Enex Common Stock" means the common stock, $.05 par value per share,
of Enex.
"Enex Financial Statements" is defined in Section 5.8.
"Enex Holder" means each record holder of an outstanding Certificate
that immediately prior to the Effective Time represents Converted Shares.
"Enex Material Adverse Effect" means a material adverse effect on the
business, assets, liabilities, results of operations or financial condition of
Enex and its Subsidiaries, taken as a whole.
"Enex Preferred Stock" means the preferred stock, $.01 par value per
share, of Enex.
"Enex Required Consents" is defined in Section 5.6 hereof.
"Enex Special Stockholders' Meeting" is defined in Section 2.8 hereof.
"Enex Stockholder" means an owner of any Enex Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agent" is defined in Section 4.1 hereof.
"Fair Market Value" of a share of Middle Bay Common Stock means the
average of the closing sale price of the Middle Bay Common Stock as reported by
the NASDAQ Stock Market for the five-day trading period ending two days prior to
the Closing Date.
"Form S-4" is defined in Section 8.3 hereof.
"GAAP" means generally accepted accounting principles.
- 2 -
<PAGE> 87
"Knowledge" of any Person means actual knowledge, after reasonable
investigation, of such Person or the officers and directors of such Person.
"Letter of Transmittal" means a letter of transmittal in the form
attached hereto as Exhibit "A".
"Lien" means any claim, mortgage, deed of trust, pledge, lien, security
interest, charge, encumbrance or similar agreement of any kind or nature
whatsoever.
"Merger Consideration" means the Middle Bay Common Stock to be issued
and any cash to be paid in lieu of fractional shares pursuant to Section 2.7
hereof.
"Middle Bay" is defined above in the preamble.
"Middle Bay Common Stock" means the common stock, $0.01 par value per
share, of Middle Bay issued and outstanding at any designated time.
"Middle Bay Financial Statements" is defined in Section 6.5 hereof.
"Middle Bay Material Adverse Effect" means a material adverse effect on
the business, assets, liabilities, results of operations or financial condition
of Middle Bay and its Subsidiaries, taken as a whole.
"Person" means any natural person, corporation, partnership, limited
liability company, proprietorship, association, trust or other legal entity.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means as to any Person, (i) a corporation of which more
than 50% of the outstanding capital stock having full voting power is at the
time, directly or indirectly, owned by such Person or by one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof or (ii) any other Person (other than a corporation) in which such
Person, or one or more Subsidiaries of such Person or such Person and one or
more Subsidiaries thereof, directly or indirectly, has at least a majority
ownership interest and power to direct the policies, management and affairs
thereof.
"Surviving Corporation" is defined in Section 2.1 hereof.
"Termination Date" is defined in Section 11.1 hereof.
- 3 -
<PAGE> 88
ARTICLE II
PLAN OF MERGER
2.1 THE MERGER. Upon the terms and subject to the conditions set forth
herein and in compliance with the requirements of Delaware Law and Alabama Law,
at the Effective Time Enex shall be merged with and into Middle Bay pursuant to
Section 252 of Delaware Law and Section 10-2B-11.01, et. seq, of Alabama Law.
Upon consummation of the Merger, the separate corporate existence of Enex shall
cease. Middle Bay shall continue as the surviving corporation (the "Surviving
Corporation") and shall succeed to and assume all the rights and obligations of
Enex existing prior to the Merger.
2.2 EFFECTIVE TIME. The Surviving Corporation shall cause the Merger
to be consummated by filing with the Secretary of State of the State of Delaware
and the Secretary of the State of Alabama certificates of merger (the
"Certificates" or "Certificate of Merger") that sets forth the Plan of Merger
contained in this Article II and is otherwise in such form as may be required
under, and is executed in accordance with, the relevant provisions of Delaware
Law and Alabama Law, respectively. The Merger shall become effective at such
time as the Certificates of Merger are duly filed with and accepted by the
Secretary of State of Delaware and the Secretary of State of Alabama or at such
other time as is stated therein (the "Effective Time").
2.3 EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in Sections 259 and 261 of Delaware Law and Section 10-2B-11.06 of Alabama Law.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the properties, rights, privileges, immunities, powers and
franchises of each Constituent Corporation shall vest in the Surviving
Corporation, and all debts, liabilities, obligations and duties of each
Constituent Corporation shall become the debts, liabilities, obligations and
duties of the Surviving Corporation. The economic effective date for purposes of
the Merger is July 1, 1998.
2.4 CERTIFICATE OF INCORPORATION AND BYLAWS.
(a) The Certificate of Incorporation of the Surviving
Corporation in effect from and after the Effective Time, until amended
in accordance with applicable law, shall be the Certificate of
Incorporation of Middle Bay as in effect immediately prior to the
Effective Time.
(b) The Bylaws of the Surviving Corporation in effect from and
after the Effective Time, until amended in accordance with applicable
law, shall be the Bylaws of Middle Bay as in effect immediately prior
to the Effective Time.
2.5 DIRECTORS. The directors of Middle Bay who are directors of Middle
Bay immediately prior to the Effective Time shall remain the directors of the
Surviving Corporation, each to hold office from the Effective Time in accordance
with the Certificate of Incorporation and Bylaws of Middle Bay and until his or
her successor is duly elected and qualified.
2.6 OFFICERS. The officers of Middle Bay immediately prior to the
Effective Time shall remain the officers of the Surviving Corporation, each to
hold office from the Effective Time in accordance with the
- 4 -
<PAGE> 89
Certificate of Incorporation and Bylaws of Middle Bay and until his or her
successor is duly appointed and qualified.
2.7 CONVERSION OF SECURITIES. At the Effective Time, by virtue of the
Merger and without any action on the part of Middle Bay, Enex or the holder of
any shares of Enex Common Stock:
(a) Each share of Enex Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares of Enex
Common Stock held by Middle Bay or Dissenting Shares) shall be
converted into the right to receive ________ shares of Middle Bay
Common Stock (the "Conversion Ratio"). This ratio is intended by Middle
Bay to represent approximately a $15 value (based on the market value
of Middle Bay Common Stock). Any shares of Enex Common Stock held in
the treasury of Enex shall be canceled.
(b) No fractional share of Middle Bay Common Stock shall be
issued to any Enex Holder, but in lieu thereof each Enex Holder who
otherwise would be entitled to receive a fraction of a share of Middle
Bay Common Stock (after aggregating all fractional shares of Middle Bay
Common Stock which would be received by such Enex Holder) shall receive
cash from Middle Bay in an amount equal to $15.00 divided by the
Conversion Ration and multiplied by such fraction.
(c) All Enex Common Stock held by Middle Bay immediately prior to
the Effective Time shall not be converted or exchanged by virtue of the
Merger, and each such share shall be canceled and retired as of the
Effective Time.
2.8 APPROVAL BY ENEX STOCKHOLDERS. Consistent with Delaware Law, as
soon as reasonably practicable following the date hereof, Enex shall cause a
special meeting of the Enex Stockholders (the "Enex Special Stockholders'
Meeting") to be duly called and held for the purpose of considering and taking
action upon the adoption of this Agreement and approval of the Merger in
accordance with Delaware Law. The Board of Directors of Enex shall recommend
that the Enex Stockholders approve the Agreement and Merger.
ARTICLE III
CLOSING
3.1 LOCATION; DATE. The closing of the Merger (the "Merger") shall be
held at the offices of Middle Bay Oil Company, Inc., 1221 Lamar Street, Suite
1020, Houston, Texas 77010, as promptly as practicable (and in any event within
three business days) after satisfaction or waiver of the conditions to the
consummation of the Merger set forth in Article X hereof, unless the parties
hereto agree in writing to another date or place. The date on which the Closing
occurs is referred to herein as the "Closing Date."
3.2 DELIVERIES. At the Closing,
(a) The Surviving Corporation shall deliver to the
Secretaries of State of the States of Alabama and Delaware duly
executed and verified copies of the Certificate of Merger, as required
by Alabama and Delaware Law;
- 5 -
<PAGE> 90
(b) The parties hereto shall deliver to each other the
respective agreements and other documents and instruments specified
with respect to them in Article X hereof and such other items as may be
reasonably requested; and
(c) The parties shall take all such other and further actions
as may be required by Alabama and Delaware Law and other applicable law
to make the Merger effective upon the terms and subject to the
conditions set forth herein.
ARTICLE IV
DISSENTING SHARES; EXCHANGE OF SHARES
4.1 DISSENTING SHARES. Notwithstanding anything in this Agreement to
the contrary, shares of Enex Common Stock that are issued and outstanding
immediately prior to the Effective Time and are held by an Enex Stockholder who
has not voted in favor of the Merger and who has demanded dissenters' rights for
such shares of Enex Common Stock in accordance with Section 262 of Delaware Law
("Dissenting Shares") shall not be converted into the right to receive Merger
Consideration unless and until such Enex Stockholder fails to perfect or
withdraws or otherwise loses such Stockholder's right to dissenters' rights
under Delaware Law. If, after the Effective Time, such Stockholder fails to
perfect or withdraws or loses such Stockholder's dissenters' rights, such
Stockholder's Dissenting Shares shall thereupon be deemed to have been converted
into and to have become exchangeable, as of the Effective Time, for the right to
receive the Merger Consideration without any interest thereon, pursuant to
Section 2.7 hereof.
4.2 EXCHANGE OF CERTIFICATES.
(a) From and after the Effective Time, a bank or trust company to
be designated by Middle Bay which shall be reasonably acceptable to
Enex (the "Exchange Agent") shall act as Exchange Agent in effecting
the exchange for the Merger Consideration of the Certificates
representing Enex Common Stock entitled to payment pursuant to Section
2.7 hereof. As soon as practicable after the Effective Time, the
Surviving Corporation shall cause the Exchange Agent to mail to each
record holder of an outstanding Certificate or Certificates, which
immediately prior to the Effective Time represented Enex Common Stock,
a Letter of Transmittal and instructions for use in effecting the
surrender of the Certificates for payment thereof. Upon the surrender
of each such Certificate, together with such duly executed Letter of
Transmittal, the Exchange Agent shall promptly pay the holder of such
Certificate the Merger Consideration in exchange therefore, and such
Certificate shall forthwith be canceled. Until so surrendered and
exchanged, each such Certificate (other than Certificates representing
Dissenting Shares or shares of Enex Common Stock held by Middle Bay)
shall represent solely the right to receive the Merger Consideration.
No interest shall be paid or accrue on the Merger Consideration. If the
Merger Consideration (or any portion thereof) is to be delivered to any
person other than the person in whose name the Certificate representing
Enex Common Stock surrendered in exchange therefore is registered, it
shall be a condition to such exchange that the Certificate so
surrendered shall be properly endorsed (with signature(s) guaranteed by
a national bank or a broker/dealer member of the National Association
of Securities Dealers, Inc.) or otherwise be in proper form for
transfer and that the person requesting such exchange shall pay to the
Exchange Agent
- 6 -
<PAGE> 91
any transfer or other taxes required by reason of the payment of the
Merger Consideration to a person other than the registered holder of
the Certificate surrendered, or shall establish to the satisfaction of
the Exchange Agent that such tax has been paid or is not applicable.
From and after the Effective Time, the holders of Certificates shall
cease to have any rights with respect to shares of Enex Common Stock,
except as otherwise provided herein or by law.
(b) At or before the Effective Time, Middle Bay shall instruct
OTC Stock Transfer, Inc., as its transfer agent, to issue upon
instruction from the Exchange Agent, the shares of Middle Bay Common
Stock to which holders of shares of Enex Common Stock shall be entitled
at the Effective Time pursuant to Section 2.8 hereof in such names and
such denominations as the Exchange Agent shall direct and shall deposit
with the Exchange Agent funds sufficient to pay holders of Enex Common
Stock any cash to which they may be entitled in lieu of fractional
shares.
(c) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making and delivery of an affidavit (containing a
guaranteed signature in the form required by Middle Bay) of that fact
by the Person claiming such Certificate to have been lost, stolen or
destroyed and, if required by Middle Bay, the posting by such Person of
a bond in such reasonable amount as Middle Bay may direct as indemnity
against any claim that would be made against Enex or Middle Bay with
respect to such Certificate, the Exchange Agent will issue in exchange
for such lost, stolen or destroyed Certificate the Merger Consideration
deliverable in respect thereof pursuant to this Agreement.
(d) After the Effective Time, there shall be no transfer of
Converted Shares that were outstanding immediately prior to the
Effective Time on the stock transfer books of Enex. If, after the
Effective Time, Certificates are presented to the Surviving Corporation
for transfer, they shall be canceled and exchanged for Merger
Consideration. At the Effective Time, the stock ledger of Enex shall be
closed.
(e) At and after the Effective Time, the Enex Holders shall cease
to have any rights as stockholders of Enex, except for the right to
surrender Certificates to be converted pursuant to Section 4.2(a). All
shares of Middle Bay Common Stock issued (and cash paid in lieu of
fractional shares) upon conversion of the Enex Common Stock in
accordance with the terms of this Agreement shall be deemed to have
been issued and paid in full satisfaction of all rights pertaining to
such shares of Enex Common Stock.
(f) Promptly following the date which is three months after the
Effective Time, the Exchange Agent shall deliver to the Surviving
Corporation all cash and shares of Middle Bay Common Stock in its
possession relating to the transactions described in this Agreement,
and the Exchange Agent's duties shall terminate. Thereafter, each
holder of a Certificate formerly representing Converted Shares may
surrender such Certificate to the Surviving Corporation, and (subject
to applicable abandoned property, escheat and similar laws) the
Surviving Corporation shall pay to such holder in exchange therefore
its Merger Consideration, without any interest thereon. None of Middle
Bay, the Surviving Corporation, the Exchange Agent or any other person
will be liable to any former
- 7 -
<PAGE> 92
holder of Converted Shares for any amount properly delivered to a
public office pursuant to applicable abandoned property, escheat or
similar laws.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ENEX
Enex represents and warrants to Middle Bay as follows:
5.1 ORGANIZATION. Enex is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power to own, lease and operate its properties and to
carry on its business as it is now being conducted or presently proposed to be
conducted. Enex is duly qualified as a foreign corporation to do business, and
is in good standing, in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not
individually or in the aggregate have an Enex Material Adverse Effect.
5.2 ORGANIZATIONAL DOCUMENTS. Enex has furnished to Middle Bay
complete and correct copies of the organizational documents of Enex and each
Subsidiary of Enex, as amended or restated, and as currently in effect. Neither
Enex nor any of its Subsidiaries is in violation of any of the provisions of its
organizational documents, as amended or restated.
5.3 CAPITALIZATION. The authorized capital stock of Enex consists of
10,000,000 shares of Enex Common Stock and 5,000,000 shares of Enex Preferred
Stock. As of May 31, 1998, 1,343,352 shares of Enex Common Stock are issued and
outstanding and are held of record by 596 persons. There are no shares of Enex
Preferred Stock issued and outstanding. All of the issued and outstanding Enex
Common Stock is validly issued, fully paid and nonassessable and has not been
issued in violation of, and is not currently subject to, any preemptive rights.
Except as set forth above, as of the date of this Agreement there are no shares
of capital stock of Enex issued or outstanding or any options, warrants,
subscriptions, calls, rights, convertible securities or other agreements or
commitments obligating Enex to issue, transfer, sell, redeem, repurchase or
otherwise acquire any shares of its capital stock or securities.
5.4 SUBSIDIARIES AND MATERIAL INVESTMENTS. Enex serves as the managing
general partner for one limited partnership--Enex Consolidated Partners, L.P.
Except as set forth on Exhibit "B," (i) there are no Subsidiaries of Enex and
(ii) Enex does not directly or indirectly own any equity or similar interest in,
or interest convertible into or exchangeable for any equity or similar interest
in, any corporation, partnership, joint venture or other business association or
entity.
5.5 AUTHORITY RELATIVE TO THIS AGREEMENT. Enex has the power to enter
into this Agreement and to carry out its obligations hereunder. The execution,
delivery and performance of this Agreement by Enex and the consummation by Enex
of the transactions contemplated hereby have been duly authorized by the Enex
Board of Directors and, except for notification and recommendation by the Enex
Board of Directors to, and approval of the Merger by, the Enex Stockholders in
accordance with Delaware Law, no other corporate proceedings on the part of Enex
re necessary to authorize this Agreement or the transactions contemplated
- 8 -
<PAGE> 93
hereby. Subject to the foregoing, this Agreement has been duly and validly
executed and delivered by Enex and constitutes a valid and binding agreement of
Enex, enforceable against Enex in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or similar laws affecting creditors' rights and to equitable
principles.
5.6 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for the filing of
the Certificate of Merger as required by Delaware Law and the filing of the Form
S-4 with the SEC, no filing with, and no permit, authorization, consent or
approval of, any court or tribunal or administrative, governmental or regulatory
body, agency, public body or authority is necessary for the execution and
delivery of this Agreement and performance of the transactions contemplated by
this Agreement by Enex. Neither the execution, delivery and performance of this
Agreement by Enex nor the consummation by Enex of the transactions contemplated
hereby, nor compliance by Enex with any of the provisions hereof, will (i)
conflict with or result in any breach of any provision of the Certificate of
Incorporation or Bylaws of Enex or organizational documents of any Enex
Subsidiary, (ii) result in a violation or breach of or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, vesting, payment, exercise, acceleration,
suspension or revocation) under any of the terms conditions or provisions of any
material note, bond, mortgage, deed of trust, security interest, indenture,
license, contract, agreement, plan or other instrument or obligation, including
the Bankruptcy Plan, to which Enex or any Enex Subsidiary is a party or by which
Enex or any Enex Subsidiary or any of their respective properties or assets may
be bound or affected, except as listed on Exhibit "C" hereto ("Enex Required
Consents"), (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Enex or any Enex Subsidiary or any of their respective
properties or assets, (iv) result in the creation or imposition of any Lien on
any material asset of Enex or any Enex Subsidiary or (v) cause the suspension or
revocation of any registrations, licenses, permits and other consents or
approvals of any governmental agency held by Enex or any Enex Subsidiary,
except, in the case of clauses (ii), (iii), (iv), and (v) for violations,
breaches, defaults, terminations, cancellations, accelerations, creations,
impositions, suspensions or revocations which would not individually or in the
aggregate have an Enex Material Adverse Effect and provided that, in the case of
clauses (ii) and (iv), no representation or warranty is hereby made with respect
to the lease agreements of Enex and its Subsidiaries, which agreements were
previously delivered to Middle Bay.
5.7 LITIGATION. There is no suit, action or proceeding (whether at law
or equity, before or by any federal, state or foreign commission, court,
tribunal, board, agency or instrumentality, or before any arbitrator) pending
or, to the Knowledge of Enex, threatened against or affecting Enex or any of its
Subsidiaries, the outcome of which could, individually or in the aggregate, have
an Enex Material Adverse Effect, nor is there any judgment, decree, injunction,
rule or order of any court, governmental department, commission, agency,
instrumentality or arbitrator outstanding against Enex or any of its
Subsidiaries having, or which, insofar as can reasonably be foreseen, in the
future may have, any such effect.
5.8 FINANCIAL REPORTS. Enex has previously furnished to Middle Bay
unaudited financial statements for the three-month period ended March 31, 1998
and in connection with the Form S-4 will furnish to Middle Bay audited financial
statements for the fiscal year ended December 31, 1997 and such other audited
financial statements as are determined to be required by Form S-4 after
consultation with the SEC (collectively, the "Enex Financial Statements"). The
Enex Financial Statements have been or will be prepared in accordance
- 9 -
<PAGE> 94
with GAAP consistently applied (except in the case of the unaudited financial
statements referenced above as otherwise permitted by the SEC for interim
financial statements) present or will present fairly the consolidated financial
position and consolidated assets and liabilities of Enex as of the dates thereof
and the results of operations and cash flows for the periods then ended, subject
in the case of unaudited Enex Financial Statements to normal recurring year-end
adjustments and absence of notes. Except as disclosed on Exhibit "D," Enex has
made all filings required to be made by it in compliance with the Exchange Act,
and such filings did not contain any untrue statement of any material fact and
did not omit to state any material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances under
which such statements were made as of the respective dates of filing.
5.9 ABSENCE OF CERTAIN CHANGES OF EVENTS. Except as disclosed in
filings that have been made by Enex under the Exchange Act, such actions as have
been taken in connection with Enex's efforts to sell the company or as disclosed
on Exhibit "E," since March 31, 1998, Enex has in all material respects
conducted its business in the ordinary course consistent with past practices and
there has not occurred with respect to Enex any change or event that has had or
is reasonably likely to have an Enex Material Adverse Effect.
5.10 ABSENCE OF UNDISCLOSED LIABILITIES. Except for liabilities or
obligations which are accrued or reserved against in the Enex Financial
Statements (or specifically referenced in the notes thereto) or were incurred
after March 31, 1998 in the ordinary course of business and consistent with past
practices, neither Enex nor its Subsidiaries have any liabilities or obligations
(whether absolute, accrued, contingent or otherwise) of a nature required by
GAAP to be reflected in a consolidated balance sheet (or reflected in the notes
thereto).
5.11 NO DEFAULT. Neither Enex nor any of its Subsidiaries are in
violation or breach of or default under (and no event has occurred which with
notice or the lapse of time or both would constitute a violation or breach of,
or a default under) any term, condition or provision of (i) any material note,
bond, mortgage, deed of trust, security interest, indenture, license, contract,
agreement, plan or other instrument or obligation to which Enex or any such
Subsidiary is a party or by which Enex or any such Subsidiary or any of their
respective properties or assets may be bound or affected, (ii) any order, writ,
injunction, decree, statute, rule or regulation applicable to Enex, any Enex
Subsidiary or any of their respective properties or assets, or (iii) any
registration, license, permit and other consent or approval of any governmental
agency, except in each case for breaches, defaults or violations which would not
individually or in the aggregate have an Enex Material Adverse Effect.
5.12 COMPLIANCE WITH APPLICABLE LAW. Enex and its Subsidiaries are in
compliance with all material applicable laws.
5.13 BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's fee or other fee or commission payable by Enex in
connection with the transactions contemplated by this Agreement based upon
arrangements made by and on behalf of Enex.
5.14 INVESTMENT INTENT. To the knowledge of the senior officers of
Enex without investigation, there is no present plan or intention by any Enex
Stockholder to sell, exchange or otherwise dispose of their Middle Bay Common
Stock subsequent to the Effective Time of the Merger.
- 10 -
<PAGE> 95
5.15 DISCLOSURE. No representation or warranty contained in this
Article V or in any Exhibit hereto or any closing certificate and all
information in the Form S-4 furnished or to be furnished by either Enex, its
Subsidiaries or any Enex Holder to Middle Bay pursuant to this Agreement or in
connection with the Merger contains or, at the Effective Time, will contain any
untrue statement of material fact or omits or, at the Effective Time, will omit
to state a material fact necessary to make the statements contained herein or
therein not misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF MIDDLE BAY
Middle Bay represents and warrants to Enex as follows:
6.1 ORGANIZATION. Middle Bay is a corporation duly organized, validly
existing and in good standing under the laws of the State of Alabama and has all
requisite corporate power to own, lease and operate its properties and to carry
on its business as it is now being conducted or presently proposed to be
conducted. Middle Bay is duly qualified as a foreign corporation to do business
and is in good standing in each jurisdiction where the character of its
properties owned or held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not
individually or in the aggregate have a Middle Bay Material Adverse Effect.
6.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Middle Bay has the power to
enter into this Agreement and to carry out its obligations hereunder. The
execution, delivery and performance of this Agreement by Middle Bay and the
consummation by Middle Bay of the transactions contemplated hereby have been
duly authorized by all necessary corporate action, and no other corporate
proceedings on the part of Middle Bay are necessary to authorize this Agreement
or the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Middle Bay and constitutes a valid and binding
agreement of Middle Bay, enforceable against Middle Bay in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization or similar laws affecting creditors' rights and to
equitable principles.
6.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for the filing of
the Certificate of Merger as required by Alabama and Delaware Laws and the
filing of the Form S-4 with the SEC, no filing with, and no permit,
authorization, consent or approval of, any court or tribunal or administrative,
governmental or regulatory body, agency, public body or authority is necessary
for the execution and delivery of this Agreement and performance of the
transactions contemplated by this Agreement by Middle Bay. Neither the
execution, delivery and performance of this Agreement by Middle Bay nor the
consummation by Middle Bay of the transactions contemplated hereby, nor
compliance by Middle Bay with any of the provisions hereof, will (i) conflict
with or result in any breach of any provisions of the Certificate of
Incorporation and Bylaws of Middle Bay, (ii) result in a violation or breach of
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation, vesting, payment,
exercise, acceleration, suspension or revocation) under any of the terms,
conditions or provisions of any material note, bond, mortgage, deed of trust,
security interest, indenture, license, contract, agreement, plan or other
instrument or obligation to which Middle Bay is a party or by which Middle Bay
or any of its properties or assets may be
- 11 -
<PAGE> 96
bound or affected, (iii) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to Middle Bay or any of its properties or assets,
(iv) result in the creation or imposition of any Lien on any material asset of
Middle Bay, or (v) cause the suspension or revocation of any registrations,
licenses, permits and other consents or approvals of any governmental agency
held by Middle Bay, except in the case of clauses (ii), (iii), (iv) and (v) for
violations, breaches, defaults, terminations, cancellations, accelerations,
creations, impositions, suspensions or revocations which would not individually
or in the aggregate have a Middle Bay Material Adverse Effect.
6.4 FINANCIAL REPORTS. Middle Bay has previously furnished to Enex a
true and complete copy of all reports and other documents filed by Middle Bay
with the SEC since December 31, 1996, including without limitation (i) its
annual report on Form 10-KSB for the fiscal year ended December 31, 1997,
including, among other things, audited consolidated balance sheets of Middle Bay
as of December 31, 1996 and 1997 and the related consolidated statements of
earnings, cash flows and stockholders' equity for each of the three fiscal years
in the period ended December 31, 1997 and (ii) its quarterly reports on Form
10-QSB for the fiscal quarters ended March 31, 1997, June 30, 1997, September
30, 1997 and March 31, 1998 containing unaudited consolidated balance sheets of
Middle Bay as of the periods then ended and the related consolidated statements
of earnings, cash flows and stockholders' equity for each of the fiscal periods
referenced therein (collectively with the audited financial statements
referenced above the "Middle Bay Financial Statements"). The Middle Bay
Financial Statements have been prepared in accordance with GAAP consistently
applied (except in the case of the unaudited financial statements referenced
above as otherwise permitted by the SEC for interim financial statements),
present fairly the consolidated financial position and consolidated assets and
liabilities of Middle Bay as of the dates thereof, and the results of operations
and cash flows for the periods then ended, subject in the case of unaudited
Middle Bay Financial Statements to normal recurring year-end adjustments and the
absence of notes. Since December 31, 1997, Middle Bay has made all filings
required to be made in compliance with the Exchange Act, and such filings did
not contain any untrue statement of any material fact and did not omit to state
any material fact necessary in order to make the statements contained therein
not misleading in light of the circumstances under which such statements were
made as of their respective dates of filing.
6.5 CAPITALIZATION. The authorized capital stock of Middle Bay
consists of 10,000,000 shares of Middle Bay Common Stock and 5,000,000 shares of
preferred stock. As of the date of this Agreement, 8,530,591 shares of Middle
Bay Common Stock and 266,667 shares of preferred stock are issued and
outstanding. All of the issued and outstanding Middle Bay Common Stock is
validly issued, fully paid and nonassessable and free of preemptive rights. As
of the date of this Agreement, there are no shares of capital stock of Middle
Bay issued or outstanding or any options, warrants, subscriptions, calls,
rights, convertible securities or other agreements or commitments obligating
Middle Bay to issue, transfer, sell, redeem, repurchase or otherwise acquire any
shares of its capital stock or securities, other than obligations and
commitments under Middle Bay's stock option and certain employee benefit plans.
6.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
filings that have been made by Middle Bay under the Exchange Act, since December
31, 1997, Middle Bay has in all material respects conducted its business in the
ordinary course consistent with past practices, and there has not occurred with
- 12 -
<PAGE> 97
respect to Middle Bay any change or event that has had or is reasonably likely
to have a Middle Bay Material Adverse Effect.
6.7 LITIGATION. Except for litigation disclosed in filings that have
been made by Middle Bay under the Exchange Act, there is no suit, action or
proceeding (whether at law or equity, before or by any federal, state or foreign
commission, court, tribunal, board, agencies or instrumentality, or before any
arbitrator) pending or, to the Knowledge of Middle Bay, threatened against or
affecting Middle Bay or any of its Subsidiaries the outcome of which could,
individually or in the aggregate, have a Middle Bay Material Adverse Effect nor
is there any judgment, decree, injunction, rule or order of any court,
governmental department, commission, agency, instrumentality or arbitrator
outstanding against Middle Bay or any of its Subsidiaries having or which, in so
far as can reasonably be foreseen in the future may have, any such effect.
6.8 ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed in Middle
Bay's filings that have been made by Middle Bay under the Exchange Act and
liabilities incurred after March 31, 1998 in the ordinary course of business and
consistent with past practices, Middle Bay does not have any liabilities or
obligations (whether absolute, accrued, contingent or otherwise) of a nature
required by GAAP to be reflected in a consolidated balance sheet (or reflected
in the notes thereto).
6.9 BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's fee or other fee or commission payable by Middle Bay in
connection with the transactions contemplated by this Agreement based upon
arrangements made by and on behalf of Middle Bay.
6.10 DISCLOSURE. No representation or warranty contained in this
Article VI or any Exhibit hereto or any closing certificate furnished or to be
furnished by either Middle Bay or its Subsidiaries to Enex pursuant to this
Agreement or in connection with the Merger contains or, at the Effective Time,
will contain any untrue statement of a material fact, or omits or, at the
Effective Time, will omit to state a material fact necessary to make the
statements contained herein or therein not misleading.
ARTICLE VII
COVENANTS OF ENEX
7.1 CONDUCT OF BUSINESS OF ENEX. Except as expressly contemplated by
this Agreement, during the period from the date hereof to the Effective Time,
Enex will, and will cause each of its Subsidiaries to, conduct its operations
according to its ordinary course of business consistent with past practice and
will use its reasonable best efforts to (i) preserve intact its business
organization and assets, (ii) maintain in effect all federal, state and local
licenses, approvals and authorizations that are required for it to carry on its
business, (iii) keep available the services of its officers and employees, and
(iv) maintain existing relationships with its lenders, suppliers and others
having business relationships with it. Without limiting the generality of the
foregoing, and except as otherwise contemplated by this Agreement, prior to the
Effective Time, Enex will not, without the prior written consent of Middle Bay:
- 13 -
<PAGE> 98
(a) amend its Articles of Incorporation or Bylaws;
(b) authorize for issuance, issue, sell, deliver or agree or
commit to issue, sell, pledge, encumber, deliver or otherwise dispose
of (whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise) any stock
of any class or any other securities or equity equivalents (including,
without limitation, stock appreciation rights), or amend in any respect
any of the terms of any such securities or options outstanding as of
the date hereof;
(c) split, combine or reclassify any shares of its capital
stock, declare, set aside or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in
respect of its capital stock or redeem, repurchase or otherwise acquire
any of its securities or adopt a plan of complete or partial
liquidation or resolutions providing for or authorizing such
liquidation or a dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization;
(d) (i) except for borrowings under its existing credit
facilities, incur any indebtedness for borrowed money or issue any debt
securities or assume, guarantee or endorse the obligations of any other
person; (ii) make any loans, advances or capital contributions to, or
investments in, any other person; (iii) pledge or otherwise encumber
shares of its capital stock; or (iv) mortgage or pledge any of its
assets, tangible or intangible, or create or suffer to exist any Lien
thereupon;
(e) enter into, adopt or (except as may be required by law)
amend or terminate any bonus, profit sharing, compensation, severance,
termination, stock option, stock appreciation right, restricted stock,
performance unit, stock equivalent, stock purchase agreement, pension,
retirement, deferred compensation, employment, severance or other
employee benefit agreement, trust, plan, fund or other arrangement for
the benefit or welfare of any director, officer or employee, or
increase in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not required by any
plan or arrangement in effect as of the date hereof (or that has been
in effect within the six-month period ending on the date hereof) or
enter into any contract, agreement, commitment or arrangement to do any
of the foregoing;
(f) acquire, sell, lease or dispose of any assets outside the
ordinary course of business or commit or agree to do any of the above;
(g) except as required by GAAP, change any of the accounting
principles or practices used by it (provided that, prior to making any
change required by GAAP, Enex shall inform Middle Bay in writing of the
nature of such change);
(h) make any tax election or settle or compromise any tax
liability;
(i) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the
ordinary course of business consistent with past practice or in
accordance with their terms, of liabilities reflected or reserved
against in, or specifically referred to in the Enex Financial
Statements (or the notes thereto) or incurred in the ordinary course of
business consistent with past practice;
- 14 -
<PAGE> 99
provided that in no event shall Enex and its Subsidiaries repay any
indebtedness except to the extent required by the terms thereof;
(j) (i) acquire (by merger, consolidation or acquisition of
stock or assets) any corporation, partnership or other business
organization or division thereof; (ii) enter into any contract or
agreement, other than contracts entered into in the ordinary course of
business consistent with past practice with executory obligations not
to exceed $150,000 in each case; (iii) authorize any capital
expenditures in excess of $20,000; or (iv) enter into or amend any
contract, agreement, commitment or arrangement with respect to any of
the foregoing; or
(k) commit or agree in writing or otherwise to take any of the
actions described in Section 7.1(a) through 7.1(j) or any action which
would make any of the representations or warranties of Enex contained
in this Agreement untrue or incorrect as of the date when made or would
result in any of the conditions set forth in this Agreement not being
satisfied.
7.2 ACCESS TO INFORMATION. Between the date hereof and the Effective
Time, Enex will give Middle Bay and its authorized representatives reasonable
access to all employees, offices and other facilities and to all books and
records of Enex and its Subsidiaries, will permit Middle Bay to make such
inspections as they may reasonably require and will cause Enex's officers to
furnish Middle Bay and Middle Bay Acquisition with such financial and operating
data and other information with respect to the business and properties of Enex
as Middle Bay or Middle Bay Acquisition may from time to time request.
7.3 ENEX SPECIAL STOCKHOLDERS' MEETING. As soon as practicable
following the date hereof, Enex shall assist in the preparation of a notice to
Enex Stockholders as required by Delaware Law relating to the Enex Special
Stockholders' Meeting to be included in the Form S-4 and shall otherwise assist
in the preparation of the Form S-4 to the extent requested by Middle Bay
(including assisting with the preparation of such audited financial statements
of Enex as are required for inclusion in the Form S-4) and shall cause such
meeting to be convened and the Enex Stockholders to vote with respect to this
Agreement and the Merger in accordance with the Form S-4.
7.4 FULFILLMENT OF CLOSING CONDITIONS. At and prior to the Closing,
Enex shall use commercially reasonable efforts to fulfill the conditions
specified in Article X hereof to the extent that the fulfillment of such
conditions is then in its control. In connection with the foregoing, Enex will
(a) refrain from any actions that would cause any of its representations and
warranties to be inaccurate in any material respect as of the Closing, (b)
execute and deliver the agreements and other documents referenced in Section
10.3, (c) comply in all material respects with all applicable laws in connection
with its execution, delivery and performance of this Agreement and the Merger,
(d) use commercially reasonable efforts to obtain in a timely manner the Enex
Required Consents and (e) use commercially reasonable efforts to take or cause
to be taken all other actions and to do or cause to be done all of the things
reasonably necessary, proper or advisable to consummate and make effective as
promptly as practicable the Merger. Enex shall give Middle Bay prompt written
notice of any event or development that occurs or fails to occur (and that is
known to Enex) that gives Enex reason to believe the conditions set forth in
Section 10.3 will not be satisfied prior to the Termination Date.
- 15 -
<PAGE> 100
7.5 ACQUISITION PROPOSALS. Enex will not, and will use its best
efforts to cause its officers, directors, employees, representatives and agents
not to, initiate, encourage or solicit, directly or indirectly, any inquiries or
the making of any proposal with respect to or, except to the extent required by
their fiduciary duties, engage in negotiations concerning, provide any
confidential information or data to or have any discussions with any person
relating to any acquisition or purchase of all or any significant portion of the
assets of or any equity interest in Enex or any of its Subsidiaries or any
merger, consolidation or other business combination of Enex or any of its
Subsidiaries with any other Person. Enex represents that as of the date hereof,
it has ceased any and all existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any of the foregoing. Enex
agrees to notify Middle Bay immediately if any such negotiations, provision of
confidential information or data or discussions are entered into or made or any
such inquiries are received in respect thereof and shall provide details with
respect thereto.
7.6 RULE 145 AFFILIATES. Promptly after the date hereof, Enex shall
identify in a letter to Middle Bay all Persons who might, at the time of the
Enex Special Stockholders' Meeting, be deemed to be "affiliates" of Enex for the
purposes of Rule 145 under the Securities Act (the "Securities Act Affiliates")
and shall use its best efforts to cause each Person who is identified as a
possible Securities Act Affiliate to enter into, prior to the Effective Time, an
agreement in form and substance reasonably acceptable to Middle Bay pursuant to
which (i) each such Person acknowledges such Person's responsibilities as a
Securities Act Affiliate and (ii) agrees to comply with the security transfer
restrictions imposed by the Securities Act.
ARTICLE VIII
COVENANTS OF MIDDLE BAY
8.1 FULFILLMENT OF CLOSING CONDITIONS. At and prior to the Closing,
Middle Bay shall use commercially reasonable efforts to fulfill the conditions
specified in Article X hereof to the extent that the fulfillment of such
conditions is then in its control. In connection with the foregoing, Middle Bay
will (a) refrain from any actions that would cause any of its representations
and warranties to be inaccurate in any material respect as of the Closing, (b)
execute and deliver the agreements and other documents referenced in Section
10.2, (c) comply in all material respects with all applicable laws in connection
with its execution, delivery and performance of this Agreement and the Merger,
(d) use commercially reasonable efforts to obtain in a timely manner all
necessary waivers, consents and approvals required for the consummation of the
Merger and (e) use commercially reasonable efforts to take or cause to be taken
all other actions and to do or cause to be done all of the things reasonably
necessary, proper or advisable to consummate and make effective as promptly as
practicable the Merger. Middle Bay shall give Enex prompt written notice of any
event or development that occurs or fails to occur (and that is known to Middle
Bay) that gives Middle Bay reason to believe the conditions set forth in Section
10.2 will not be satisfied prior to the Termination Date.
8.2 REGISTRATION STATEMENT ON FORM S-4. Middle Bay shall prepare and
file with the SEC, as soon as reasonably practicable after the date hereof, a
registration statement on Form S-4 under the Securities Act for purposes of
registering the Middle Bay Common Stock to be issued in the Merger. Such
registration statement on Form S-4 and any amendments or supplements thereto are
referred to herein as the "Form S-4." The Form S-4 will also contain a proxy
statement and notice soliciting proxies from the Enex Stockholders with respect
to the Merger and providing all notices required with respect to the Enex
Special Stockholders'
- 16 -
<PAGE> 101
Meeting. Middle Bay shall use commercially reasonable efforts to have the Form
S-4 declared effective under the Securities Act as promptly as practicable after
its filing. Middle Bay shall also take such action as may be reasonably required
to cause the shares covered by Form S-4 to be registered or to obtain an
exemption from registration under applicable state "blue sky" or securities
laws. Middle Bay covenants that the Form S-4 (i) will comply in all material
respects with the applicable provisions of the Securities Act and the rules and
regulations promulgated thereunder and (ii) will not at the time such document
is filed with the SEC or at any time after it becomes effective under the
Securities Act contain any untrue statement of any material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein in light of the circumstances under which they were
made not misleading; provided that such covenant shall not apply to any
information related to Enex or provided by Enex for inclusion in the Form S-4.
8.3 STOCK EXCHANGE LISTING. Middle Bay shall prepare and file an
application with the NASDAQ Stock Market to list on such exchange the Middle Bay
Common Stock issuable pursuant to the Merger effective as of the consummation of
the Merger and will use commercially reasonable efforts to cause such
application to be approved by such time.
ARTICLE IX
COVENANTS OF THE PARTIES
9.1 PUBLIC ANNOUNCEMENTS. Middle Bay and Enex will consult with each
other, and Enex shall secure Middle Bay's consent before issuing any press
release or otherwise making any public statements with respect to this Agreement
and the Merger.
9.2 FURTHER ASSURANCES. If, at any time after the Effective Time, any
further action is necessary or desirable to carry out the purposes of this
Agreement and to vest the Surviving Corporation with full right, title and
possession in and to all properties, interests, assets, rights, privileges,
immunities, powers and franchises of either of the Constituent Corporations, the
officers of the Surviving Corporation are fully authorized in the name of each
Constituent Corporation or otherwise to take, and shall take, all such lawful
and necessary action.
ARTICLE X
CONDITIONS TO CONSUMMATION OF THE MERGER
10.1 CONDITIONS PRECEDENT TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The respective obligations of each party to effect the Merger shall be
subject to the satisfaction at or prior to the Closing of the following
conditions:
(a) No statute, rule, regulation, executive order, decree,
ruling or preliminary or permanent injunction shall have been enacted,
entered, promulgated or enforced by any federal or state court or other
governmental authority which prohibits, restrains, enjoins or restricts
the consummation of the Merger.
- 17 -
<PAGE> 102
(b) The Form S-4 shall have become effective, no stop order
suspending the effectiveness of the Form S-4 shall then be in effect
and no proceedings for that purpose shall then be threatened by the SEC
or shall have been initiated by the SEC and not concluded or withdrawn.
All state securities or blue sky permits or approvals required to carry
out the Merger shall have been received.
(c) The Middle Bay Common Stock issuable in connection with the
Merger shall have been duly approved for listing on the NASDAQ Stock
Market.
(d) The Enex Stockholders shall have approved this Agreement and
the Merger.
10.2 CONDITIONS PRECEDENT TO OBLIGATION OF ENEX TO EFFECT THE MERGER.
The obligation of Enex to effect the Merger shall be subject to the satisfaction
at or prior to the Closing of the following additional conditions:
(a) Middle Bay shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or
prior to the Closing, and the representations and warranties of Middle
Bay contained in this Agreement which are qualified with respect to
materiality shall be true and correct in all respects, and such
representations and warranties that are not so qualified shall be true
and correct in all material respects, in each case as of the date of
this Agreement and at and as of the Closing as if made at and as of
such time, except as contemplated by this Agreement, and Enex shall
have received a certificate of the Chairman of the Board, the President
or the Chief Financial Officer of Middle Bay as to the satisfaction of
this condition.
(b) Middle Bay shall have secured all waivers, consents and
approvals necessary for the consummation of the Merger.
10.3 CONDITIONS TO OBLIGATIONS OF MIDDLE BAY TO EFFECT THE MERGER. The
obligations of Middle Bay to effect the Merger shall be subject to the
satisfaction at or prior to the Closing of the following additional conditions:
(a) Enex shall have performed in all material respects its
obligations under this Agreement required to be performed by it at or
prior to the Closing, and the representations and warranties of Enex
contained in this Agreement which are qualified with respect to
materiality shall be true and correct in all respects, and such
representations and warranties that are not so qualified shall be true
and correct in all material respects, in each case as of the date of
this Agreement and at and as of the Closing as if made at and as of
such time, except as expressly disclosed by Enex Disclosure Letter or
this Agreement, and Middle Bay shall have received a Certificate of the
Chairman of the Board, the President or the Chief Financial Officer of
Enex as to the satisfaction of this condition.
(b) Enex shall have secured all Enex Required Consents.
- 18 -
<PAGE> 103
ARTICLE XI
TERMINATION; AMENDMENT; WAIVER
11.1 TERMINATION. This Agreement may be terminated at any time prior
to the Effective Time by written notice as set forth below:
(a) by mutual written consent duly authorized by the Board of
Directors of each of Middle Bay and Enex;
(b) by either Middle Bay or Enex if the Merger shall not have
been consummated on or before September 30, 1998 (the "Termination
Date"); provided, however, that the right to terminate this Agreement
under this Section 11.1 shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of the Effective Time to occur on
or before the Termination Date;
(c) by either Middle Bay or Enex if a court of competent
jurisdiction or a governmental, regulatory or administrative agency or
commission shall have issued an injunction (which injunction the
parties shall use their best efforts to lift) that permanently
restrains, enjoins or otherwise prohibits the Merger, and such
injunction shall have become final and non-appealable;
(d) by Enex if Middle Bay shall have materially breached or
failed to comply with any of its obligations under this Agreement or if
any representation or warranty made by Middle Bay shall have been
materially incorrect when made, and such breach, failure or
misrepresentation is not cured within 20 days after notice thereof, and
in either case, if any of such breaches, failures or
misrepresentations, individually or in the aggregate, result or would
reasonably be expected to result in a Middle Bay Material Adverse
Effect; or
(e) by Middle Bay if Enex shall have materially breached or
failed to comply with any of its obligations under this Agreement or if
any representation or warranty made by it shall have been materially
incorrect when made, and such breach, failure or misrepresentation is
not cured within 20 days after notice thereof, and in each case, if any
of such breaches, failures or misrepresentations, individually or in
the aggregate, result or would reasonably be expected to result in an
Enex Material Adverse Effect.
11.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 11.1, this Agreement shall
forthwith become void and have no further effect, without any liability on the
part of any party hereto or its affiliates, directors, officers or shareholders.
Nothing contained in this Section 11.2 shall relieve any party from liability
for any willful breach of this Agreement.
11.3 EXTENSION; WAIVER. At any time prior to the Closing, each party
hereto may (i) extend the time for the performance of any of the obligations or
other acts of the other party, (ii) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by the other party with any of the agreements or
- 19 -
<PAGE> 104
conditions contained herein. Any agreement on the part of either party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such rights.
ARTICLE XII
MISCELLANEOUS
12.1 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of the parties hereto.
12.2 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except for any
agreements to be performed in any part after the Effective Time, the
representations, warranties, covenants and other agreements contained herein and
in any certificate delivered pursuant hereto shall not survive beyond the
Effective Time or any termination of this Agreement.
12.3 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement and documents and
instruments referred to herein and therein (i) constitute the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof and (ii) shall not
be assigned by operation of law or otherwise.
12.4 VALIDITY. If any provision of this Agreement or the application
thereof to any person or circumstance is held invalid or unenforceable, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby, and to such end, the
provisions of this Agreement are agreed to be severable.
12.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telegram or telex, or by registered or certified mail (postage prepaid, return
receipt requested), to the other party as follows:
If to Middle Bay: Middle Bay Oil Company, Inc.
1221 Lamar Street, Suite 1020
Houston, Texas 77010
Attention: John J. Bassett, President
If to Enex: Enex Resources Corporation
800 Rockmead Drive
Three Kingwood Place
Kingwood, Texas 77339
Attention: Stephen W. Herod, Vice President
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
- 20 -
<PAGE> 105
12.6 GOVERNING LAW. Georgia law shall govern all issues concerning
this Agreement and the Merger, including without limitation the validity of this
Agreement, the construction of its terms and the interpretation and enforcement
of the rights and duties of the parties hereto.
12.7 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
12.8 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
12.9 FURTHER ASSURANCES. The parties hereto shall execute and deliver
any and all documents and take any and all other actions that may be deemed
reasonably necessary by their respective counsel to complete the transactions
contemplated hereby.
12.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
12.11 ASSIGNMENT. This Agreement shall not be assigned by any party
hereto without the prior written consent of the other parties hereto.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its representatives thereunto duly authorized, all as
of the day and year first above written.
MIDDLE BAY OIL COMPANY, INC.
By: /s/ John J. Bassett
-------------------------------------
John J. Bassett, President
ENEX RESOURCES CORPORATION
By: /s/ Stephen W. Herod
-------------------------------------
Stephen W. Herod, Vice President
- 21 -
<PAGE> 106
APPENDIX II
DELAWARE CODE ANNOTATED
TITLE 8. CORPORATIONS
CHAPTER 1. GENERAL CORPORATION LAW
SUBCHAPTER IX. MERGER OR CONSOLIDATION
ss. 262 APPRAISAL RIGHTS.
(a) Any stockholder of a corporation of this State who holds shares of stock
on the date of the making of a demand pursuant to subsection (d) of this section
with respect to such shares, who continuously holds such shares through the
effective date of the merger or consolidation, who has otherwise complied with
subsection (d) of this section and who has neither voted in favor of the merger
or consolidation nor consented thereto in writing pursuant to ss. 228 of this
title shall be entitled to an APPRAISAL by the Court of Chancery of the fair
value of the stockholder's shares of stock under the circumstances described in
subsections (b) and (c) of this section. As used in this section, the word
"stockholder" means a holder of record of stock in a stock corporation and also
a member of record of a nonstock corporation; the words "stock" and "share" mean
and include what is ordinarily meant by those words and also membership or
membership interest of a member of a nonstock corporation; and the words
"depository receipt" mean a receipt or other instrument issued by a depository
representing an interest in one or more shares, or fractions thereof, solely of
stock of a corporation, which stock is deposited with the depository.
(b) APPRAISAL RIGHTS shall be available for the shares of any class or series
of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to ss. 251 (other than a merger effected pursuant to ss.
251(g) of this title), ss. 252, ss. 254, ss. 257, ss. 258, ss. 263 or ss. 264 of
this title:
(1) Provided, however, that no APPRAISAL RIGHTS under this section shall be
available for the shares of any class or series of stock, which stock, or
depository receipts in respect thereof, at the record date fixed to determine
the stockholders entitled to receive notice of and to vote at the meeting of
stockholders to act upon the agreement of merger or consolidation, were
either (i) listed on a national securities exchange or designated as a
national market system security on an interdealer quotation system by the
National Association of Securities Dealers, Inc. or (ii) held of record by
more than 2,000 holders; and further provided that no APPRAISAL RIGHTS shall
be available for any shares of stock of the constituent corporation surviving
a merger if the merger did not require for its approval the vote of the
stockholders of the surviving corporation as provided in subsection (f) of
ss. 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, APPRAISAL RIGHTS under
this section shall be available for the shares of any class or series
<PAGE> 107
of stock of a constituent corporation if the holders thereof are required by
the terms of an agreement of merger or consolidation pursuant to ss. 251,
252, 254, 257, 258, 263 and 264 of this title to accept for such stock
anything except:
a. Shares of stock of the corporation surviving or resulting from such
merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts in
respect thereof, which shares of stock (or depository receipts in respect
thereof) or depository receipts at the effective date of the merger or
consolidation will be either listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or held of
record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a. and b. of this paragraph; or
d. Any combination of the shares of stock, depository receipts and cash in
lieu of fractional shares or fractional depository receipts described in
the foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation party
to a merger effected under ss. 253 of this title is not owned by the parent
corporation immediately prior to the merger, APPRAISAL RIGHTS shall be
available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
APPRAISAL RIGHTS under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) APPRAISAL RIGHTS shall be perfected as follows:
(1) If a proposed merger or consolidation for which APPRAISAL RIGHTS are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record date for
such meeting with respect to shares for which APPRAISAL RIGHTS are available
pursuant to subsection (b) or (c) hereof that APPRAISAL RIGHTS are available
for any or all of the shares of the constituent corporations, and shall
include in such notice a copy of this section. Each stockholder electing to
demand the APPRAISAL of his shares shall deliver to the corporation, before
the taking of the vote on the merger or consolidation, a written demand for
APPRAISAL of his shares. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the APPRAISAL of his shares. A proxy or
vote against the merger or consolidation shall not constitute such a demand.
A stockholder electing to take such action must do so by a separate written
demand as herein provided. Within 10 days after the effective date
<PAGE> 108
of such merger or consolidation, the surviving or resulting corporation
shall notify each stockholder of each constituent corporation who has
complied with this subsection and has not voted in favor of or consented to
the merger or consolidation of the date that the merger or consolidation has
become effective; or
(2) If the merger or consolidation was approved pursuant to ss. 228 or ss.
253 of this title, each constituent corporation, either before the effective
date of the merger or consolidation or within ten days thereafter, shall
notify each of the holders of any class or series of stock of such
constituent corporation who are entitled to APPRAISAL RIGHTS of the approval
of the merger or consolidation and that APPRAISAL RIGHTS are available for
any or all shares of such class or series of stock of such constituent
corporation, and shall include in such notice a copy of this section;
provided that, if the notice is given on or after the effective date of the
merger or consolidation, such notice shall be given by the surviving or
resulting corporation to all such holders of any class or series of stock of
a constituent corporation that are entitled to APPRAISAL RIGHTS. Such notice
may, and, if given on or after the effective date of the merger or
consolidation, shall, also notify such stockholders of the effective date of
the merger or consolidation. Any stockholder entitled to APPRAISAL RIGHTS
may, within 20 days after the date of mailing of such notice, demand in
writing from the surviving or resulting corporation the APPRAISAL of such
holder's shares. Such demand will be sufficient if it reasonably informs the
corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the APPRAISAL of such holder's shares. If such
notice did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send a
second notice before the effective date of the merger or consolidation
notifying each of the holders of any class or series of stock of such
constituent corporation that are entitled to APPRAISAL RIGHTS of the
effective date of the merger or consolidation or (ii) the surviving or
resulting corporation shall send such a second notice to all such holders on
or within 10 days after such effective date; provided, however, that if such
second notice is sent more than 20 days following the sending of the first
notice, such second notice need only be sent to each stockholder who is
entitled to APPRAISAL RIGHTS and who has demanded APPRAISAL of such holder's
shares in accordance with this subsection. An affidavit of the secretary or
assistant secretary or of the transfer agent of the corporation that is
required to give either notice that such notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein. For
purposes of determining the stockholders entitled to receive either notice,
each constituent corporation may fix, in advance, a record date that shall be
not more than 10 days prior to the date the notice is given, provided, that
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the record
date shall be the close of business on the day next preceding the day on
which the notice is given.
<PAGE> 109
(e) Within 120 days after the effective date of the merger or consolidation,
the surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to APPRAISAL
RIGHTS, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of all such stockholders. Notwithstanding the
foregoing, at any time within 60 days after the effective date of the merger or
consolidation, any stockholder shall have the right to withdraw his demand for
APPRAISAL and to accept the terms offered upon the merger or consolidation.
Within 120 days after the effective date of the merger or consolidation, any
stockholder who has complied with the requirements of subsections (a) and (d)
hereof, upon written request, shall be entitled to receive from the corporation
surviving the merger or resulting from the consolidation a statement setting
forth the aggregate number of shares not voted in favor of the merger or
consolidation and with respect to which demands for APPRAISAL have been received
and the aggregate number of holders of such shares. Such written statement shall
be mailed to the stockholder within 10 days after his written request for such a
statement is received by the surviving or resulting corporation or within 10
days after expiration of the period for delivery of demands for APPRAISAL under
subsection (d) hereof, whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in Chancery
in which the petition was filed a duly verified list containing the names and
addresses of all stockholders who have demanded payment for their shares and
with whom agreements as to the value of their shares have not been reached by
the surviving or resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be accompanied by such a
duly verified list. The Register in Chancery, if so ordered by the Court, shall
give notice of the time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting corporation and to
the stockholders shown on the list at the addresses therein stated. Such notice
shall also be given by 1 or more publications at least 1 week before the day of
the hearing, in a newspaper of general circulation published in the City of
Wilmington, Delaware or such publication as the Court deems advisable. The forms
of the notices by mail and by publication shall be approved by the Court, and
the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
APPRAISAL RIGHTS. The Court may require the stockholders who have demanded an
APPRAISAL for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the APPRAISAL proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an APPRAISAL, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger
<PAGE> 110
or consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the APPRAISAL proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the APPRAISAL prior
to the final determination of the stockholder entitled to an APPRAISAL. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted his
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that he is
not entitled to APPRAISAL RIGHTS under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed upon
the parties as the Court deems equitable in the circumstances. Upon application
of a stockholder, the Court may order all or a portion of the expenses incurred
by any stockholder in connection with the APPRAISAL proceeding, including,
without limitation, reasonable attorney's fees and the fees and expenses of
experts, to be charged pro rata against the value of all the shares entitled to
an APPRAISAL.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded his APPRAISAL RIGHTS as provided in subsection (d)
of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation); provided,
however, that if no petition for an APPRAISAL shall be filed within the time
provided in subsection (e) of this section, or if such stockholder shall deliver
to the surviving or resulting corporation a written withdrawal of his demand for
an APPRAISAL and an acceptance of the merger or consolidation, either within 60
days after the effective date of the merger or consolidation as provided in
subsection (e) of this section or thereafter with the written approval of the
corporation, then the right of such stockholder to an APPRAISAL shall cease.
Notwithstanding the foregoing, no APPRAISAL proceeding in the Court of Chancery
shall be dismissed as to any stockholder without the approval of the Court, and
such approval may be conditioned upon such terms as the Court
<PAGE> 111
deems just.
(l) The shares of the surviving or resulting corporation to which the shares
of such objecting stockholders would have been converted had they assented to
the merger or consolidation shall have the status of authorized and unissued
shares of the surviving or resulting corporation.
<PAGE> 112
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 10-2A-21 of the Alabama Business Corporation Act provides as
follows:
(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, including appeals (other than an action by
or in the right of the corporation), by reason of the fact that he is or
was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, partner,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such claim, action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any claim, action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed claim, action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, partner,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to
the corporation unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, notwithstanding that he
has not been successful on any other claim, issue or matter in any such
action, suit or proceeding.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to, or who have been wholly successful on
the merits or otherwise with respect to, such claim, action, suit or
proceeding, or (2) if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the shareholders.
II-1
<PAGE> 113
(e) Expenses (including attorneys' fees) incurred in defending a civil
or criminal claim, action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such claim, action, suit
or proceeding as authorized in the manner provided in subsection (d) of
this section upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if and to the
extent that it shall be ultimately determined that he is not entitled to be
indemnified by the corporation as authorized in this section.
(f) The indemnification authorized by this section shall not be deemed
exclusive of and shall be in addition to any other right (whether created
prior or subsequent to the enactment of this section) to which those
indemnified may be entitled under any statute, rule of law, provisions of
articles of incorporation, bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office and
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such person.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, partner, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such capacity
or arising out of his status as such, whether or not the corporation would
have the power to indemnify him against such liability under the provisions
of this section.
Article IX of the Articles of Incorporation of registrant provides as
follows:
"(a) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
claim, action, suit or proceeding, whether civil, criminal, administrative
or investigative, including appeals (other than an action by or in the
right of the Corporation) by reason of the fact that an individual is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, partner,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such individual in connection with such claim, action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any claim, action,
suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was lawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
claim, action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, partner,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to
the Corporation, unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
II-2
<PAGE> 114
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this Section IX or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith, notwithstanding
that he has not been successful on any other claim, issue or matter in any
such action, suit or proceeding.
(d) Any indemnification under subsections (a) and (b) of this Section
IX (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this Section. Such determination shall be made
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to, or who have been wholly successful on
the merits or otherwise with respect to, such claim, action, suit or
proceeding, or (2) if such quorum is not obtainable or, even if obtainable,
a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the shareholders.
(e) Expenses (including attorneys' fees) incurred in defending a civil
or criminal claim, action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such claim, action, suit
or proceeding as authorized in the manner provided in subsection (d) of
this Section upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if and to the
extent that it shall be ultimately determined that he is not entitled to be
indemnified by the Corporation as authorized in this Section.
(f) The indemnification authorized by this Section shall not be deemed
exclusive of and shall be in addition to any other right (whether created
prior or subsequent to the adoption of this Section) to which those
indemnified may be entitled under any statute, rule of law, bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
(g) The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, partner, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under the provisions of this Section."
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The Exhibits filed as part of this Registration Statement are as follows:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
<C> <S> <C>
2.1 -- Agreement and Plan of Merger between Middle Bay Oil Company,
Inc. and Enex Resources Corporation dated June 17, 1998
(filed as Appendix I of the prospectus)
3.1 -- Articles of Incorporation(1)
3.2 -- Articles of Amendment to Articles of Incorporation
reflecting reverse split(2)
3.3 -- Articles of Amendment to Articles of Incorporation
designating preferences and rights of Series A Preferred
Stock(3)
3.4 -- Articles of Amendment to Articles of Incorporation
designating preferences and rights of Series B Preferred
Stock(4)
3.5 -- Articles of Amendment to Articles of Incorporation
increasing authorized capital stock(5)
3.6 -- Articles of Amendment to Articles of Incorporation
increasing authorized capital stock(6)
</TABLE>
II-3
<PAGE> 115
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
<C> <S> <C>
3.7 -- Bylaws(1)
5.1 -- Opinion of Thrasher, Whitley, Hampton & Morgan as to
legality of the common stock registered hereunder (to be
filed by Amendment)
8.1 -- Opinion of Thrasher, Whitley, Hampton & Morgan as to federal
income tax consequences of the merger (to be filed by
amendment)
10.1 -- Executive Employment Agreement for John J. Bassett dated
January 30, 1997(13)
10.2 -- Executive Employment Agreement for Robert W. Hammons dated
January 30, 1997(13)
10.3 -- Executive Employment Agreement for Stephen W. Herod dated
July 1, 1997(13)
10.4 -- 1995 Stock Option and Stock Appreciation Rights Plan(7)
10.5 -- Amended and Restated 1995 Stock Option and Stock
Appreciation Rights Plan(5)
10.6 -- Amendment No. 1 to Amended and Restated 1995 Stock Option
and Stock Appreciation Rights Plan(6)
10.7 -- Credit Agreement between registrant and Enex Resources
Corporation, as borrower, and Compass Bank, as agent and a
lender, Bank of Oklahoma, N.A., as a lender, and the other
lenders signatory thereto, dated March 27, 1998(8)
10.8 -- Asset Purchase Agreement among registrant, Service Drilling
Co., L.L.C. and Diamond S Gas Systems, L.L.C. dated April
15, 1998(9)
10.9 -- Consulting Agreement between Gerald B. Eckley and Registrant
dated April 15, 1998.
11.1 -- Statement regarding computation of per-share earnings(10)
21.1 -- Subsidiaries of registrant
23.2 -- Consent of Schultz, Watkins & Company, independent
accountants
23.3 -- Consent of Deloitte & Touche, LLP, independent accountants
23.4 -- Consent of Thrasher, Whitley, Hampton & Morgan (to be
included in Exhibit 5.1)
24.1 -- Power of Attorney (included on signature page)
99.1 -- Form of Rights Agreement dated as of September 4, 1990
between Enex Resources Corporation's
predecessor-in-interest, Enex Resources Corporation, a
Colorado corporation, and American Securities Transfer,
Incorporated, as rights agent, which includes as exhibits
thereto the Form of Rights Certificate and the Summary of
Rights to Purchase Common Stock as amended on April 12,
1994(11)
99.2 -- Amendment to Rights Agreement dated March 17, 1998 between
Enex Resources Corporation and American Securities Transfer,
Incorporated(12)
99.3 -- Form of Proxy for Enex's shareholders (to be filed by
amendment)
</TABLE>
- ---------------
(1) Incorporated by reference to exhibits to Registrant's Registration
Statement on Form S-4 filed October 4, 1993.
(2) Incorporated by reference to exhibit A to Registrant's definitive Proxy
Statement filed February 15, 1995.
(3) Incorporated by reference to exhibit 99.2 to Registrant's Form 8-K filed
September 19, 1996.
(4) Incorporated by reference to exhibit C to the Agreement and Plan of Merger
among Registrant, Shore Acquisition Company, Shore Oil Company and its
shareholders filed as exhibit 2.1 to Registrant's Form 8-K filed July 3,
1997.
(5) Incorporated by reference to exhibits to Registrant's definitive Proxy
Statement filed May 5, 1997.
(6) Incorporated by reference to exhibits to Registrant's definitive Proxy
Statement filed May 15, 1998.
(7) Incorporated by reference to exhibit A to Registrant's definitive Proxy
Statement filed May 11, 1995.
(8) Incorporated by reference to exhibits to Amendment No. 3 and Final
Amendment to Registrant's Schedule 14D-1 filed April 13, 1998.
II-4
<PAGE> 116
(9) Incorporated by reference to exhibits to Registrant's Form 8-K filed May 6,
1998.
(10) Incorporated by reference to exhibits to Registrant's Form 10-KSB/A filed
May 15, 1998.
(11) Incorporated by reference to exhibits to Registrant's Form 8-K filed
September 4, 1990 by Enex Resources Corporation and to exhibits to Form 8-K
filed April 12, 1994 by Enex Resources Corporation.
(12) Incorporated by reference to exhibits to Registrant's Form 8-K filed March
20, 1998.
(13) Incorporated by reference to exhibits to Registrant's Form 10-KSB filed
March 31, 1998.
The registrant agrees to provide to the Commission, upon request, copies of
instruments defining the rights of holders of long-term debt of the registrant
and its consolidated subsidiaries and for any unconsolidated subsidiaries for
which financial statements are required to be filed with the Commission.
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of the registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items
of the applicable form.
(5) That every prospectus (i) that is filed pursuant to paragraph (4)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 145, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registration has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a
II-5
<PAGE> 117
court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
(7) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one
business day of receipt of request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date
of the registration statement through the date of responding to the
request.
(8) The undersigned hereby undertakes to supply, by means of a
post-effective amendment, all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-6
<PAGE> 118
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on this 17th day of June, 1998.
MIDDLE BAY OIL COMPANY, INC.
By: /s/ JOHN J. BASSETT
------------------------------------
John J. Bassett
Chairman of the Board of Directors,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John J. Bassett and Stephen W. Herod, jointly and
severally, his attorneys-in-fact, each with power of substitution for him in any
and all capacities, to sign any amendments to this Registration Statement and to
file the same, with the exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact or his substitute or
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ JOHN J. BASSETT Director, President, Chief
- --------------------------------------------------- Executive and Operating Officer
John J. Bassett June 17, 1998
/s/ C. J. LETT, III Executive Vice President and
- --------------------------------------------------- Director
C. J. Lett, III June 17, 1998
/s/ STEPHEN W. HEROD Vice President and Director
- ---------------------------------------------------
Stephen W. Herod June 17, 1998
/s/ EDWARD P. TURNER, JR. Director
- ---------------------------------------------------
Edward P. Turner, Jr. June 17, 1998
/s/ FRANK E. BOLLING, JR. Director
- ---------------------------------------------------
Frank E. Bolling, Jr. June 17, 1998
/s/ GARY R. CHRISTOPHER Director
- ---------------------------------------------------
Gary R. Christopher June 17, 1998
/s/ ALVIN V. SHOEMAKER Director
- ---------------------------------------------------
Alvin V. Shoemaker June 17, 1998
</TABLE>
II-7
<PAGE> 1
EXHIBIT 10.9
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is dated as of April 15, 1998 by and
between MIDDLE BAY OIL COMPANY, INC., an Alabama corporation ("Offeror"), and
GERALD B. ECKLEY ("Eckley"), an individual residing at 1421 Hamblen Road,
Kingwood, Texas 77339;
W I T N E S S E T H :
WHEREAS, Eckley is now and has been President and Chief Executive
Office of Enex Resources Corporation, a Delaware corporation ("Enex"); and
WHEREAS, on March 27, 1998, Offeror completed a cash tender offer (the
"Tender Offer") for all of Enex's outstanding shares of common stock (the
"Shares"); and
WHEREAS, Offeror has acquired approximately 80% of the Shares and has
requested that Eckley resign from his offices as a director, President and Chief
Executive Officer of Enex and from all positions he holds as director or officer
of any subsidiaries of Enex; but Offeror desires to secure Eckley's services in
a consultant capacity;
NOW, THEREFORE, in consideration of such arrangements and the mutual
promises and agreement contained herein, the parties enter into this Agreement
upon the following terms and conditions:
1. ENGAGEMENT AS CONSULTANT. Offeror retains Eckley to provide services
and advice to Offeror from time to time concerning investor relations and
transactions involving the limited partnerships of which Enex served as general
partner (the "Related Partnerships"). Offeror agrees that Eckley will provide
his consulting services from the Kingwood, Texas area and will not be required
to relocate to any other city. Nothing in this Agreement shall prevent Eckley
from engaging in other employment or business activities that do not prevent him
from fulfilling his duties under this Agreement.
2. TERM. The term of this Agreement shall begin as of the date of this
Agreement and end May 18, 2002.
3. CONSIDERATION. As a consulting fee, for a covenant not to compete
and a preferential right to purchase acquisitions, Offeror agrees to pay Eckley
$20,000 per month for his services during each month of the term of this
Agreement.
- 1 -
<PAGE> 2
(a) Covenant Not to Compete. During the term of this
Agreement, Eckley shall not, directly or indirectly, engage in any
activities that interfere with those of Offeror or that affect the
properties in which Offeror or any company managed by Offeror (an
"Offeror Entity") has an interest. Eckley agrees not to solicit or
engage in a transaction involving the acquisition or sale of any
interest in any Offeror Entity or any oil and gas property which
Offeror is then negotiating to purchase or has previously indicated to
Eckley its present intention to purchase. This paragraph shall not
preclude Eckley's participation in any other business activity,
including any business activity relating to the ownership of interests
in properties producing or (or which are believed to be capable of
producing) oil and/or gas, provided such activities do not conflict
with the provisions of the immediately preceding sentence or of Section
3(b). Without limiting the generality of the foregoing, Eckley may
purchase or invest in such interests for his own accounts or on behalf
of others, and may serve as a consultant, partner, member, stockholder,
director, officer and/or employee of one or more funds, partnerships or
other entities engaged in the oil and gas business (i.e., Eckley will
be subject to the doctrine of corporate opportunities only insofar as
it applies to business opportunities in which Offeror has expressed an
interest, as determined from time to time by resolutions appearing in
Offeror's minute book or as otherwise properly evidenced and provided
for in writing in Offeror's books and records).
(b) Oil and Gas Acquisitions. Eckley will be developing and
reviewing opportunities to acquire oil and/or gas leases, prospects and
producing properties from corporations or other entities which own or
control such property. For a period of ten (10) days after receipt of
notice from Eckley, Offeror shall have a preferential right to
purchase, on the same terms and conditions offered to others by Eckley,
any and all interests in any potential oil and gas acquisition which
Eckley controls or proposes to acquire during the term of this
Agreement.
4. REIMBURSEMENT OF EXPENSES. Offeror shall reimburse Eckley each month
for reasonable and necessary business expenses incurred in connection with the
performance of consulting services, upon presentation and approval of expense
receipts and vouchers or such other supporting information as Offeror may
reasonably request.
5. CONFIDENTIAL INFORMATION. Eckley recognizes that he will occupy a
position of trust with respect to providing consulting services to Offeror and,
in such position, will have access to confidential information and trade secrets
of Offeror. Therefore, Eckley agrees that:
(a) he shall not use or disclose any of Offeror's confidential
information or trade secrets to any person, except in the course of his service
to Offeror; and
- 2 -
<PAGE> 3
(b) at the end of the term of the Agreement, he shall return
to Offeror any and all documents and materials which constitute or
contain Offeror's confidential information or trade secrets.
For purposes of this Agreement, the term "confidential information" or "trade
secrets" shall include all information of any nature and any form which is owned
by Offeror and which is not publicly available or generally known to persons
engaged in businesses similar to that of Offeror, but not any information in
Eckley's possession prior to the effective date of this Agreement or available
to Eckley otherwise than by reason of his consulting services to Offeror.
6. DEATH OF CONSULTANT. In the event of Eckley's death during the term
of this Agreement, Offeror shall pay to his beneficiary, from month to month, a
death benefit in an amount equal to $20,000 per month for each of the months
remaining in the time period from the date of Eckley's death through May 18,
2002. Offeror may fund this obligation through the purchase of insurance on the
life of Eckley. For the purpose of this paragraph, beneficiary shall mean any
person or persons designated in writing by Eckley, and if no person has been so
designated, his estate.
7. TERMINATION OF THE AGREEMENT BY OFFEROR. In the event of Offeror's
termination of this Agreement for any reason, Offeror shall continue to be
obligated and shall monthly pay to Eckley a severance payment in an amount equal
to $20,000 for each month remaining in the time period from the date of such
termination through May 18, 2002.
8. EMPLOYMENT STATUS. Eckley shall be an independent contractor, not an
employee of Offeror, and shall not be entitled to benefits provided by Offeror
to its employees. Offeror shall not withhold income or employment taxes or pay
employment taxes with respect to amounts paid to Eckley pursuant to this
Agreement, which taxes shall be the sole responsibility of Eckley.
9. NONASSIGNABILITY. This Agreement may not be assigned by either party
without the other party's prior written consent, but shall be binding upon the
parties and their respective personal representatives, successors and permitted
assigns.
10. MODIFICATION AND WAIVER.
(a) Amendment to Agreement. This Agreement may not be modified or
amended except in a writing signed by both parties.
(b) Waiver. No term or condition of this Agreement shall be deemed
to have been waived, unless expressly provided in writing by the party
charged with such waiver.
- 3 -
<PAGE> 4
11. EFFECT OF PRIOR AGREEMENTS. This Agreement contains the entire
understanding between Offeror and Eckley and supersedes all other prior
agreements between Offeror and Eckley and between Enex and Eckley, including
Eckley's current employment agreement with Enex.
12. NOTICES. All notices or communications shall be in writing,
addressed as follows:
(a) To Offeror: Middle Bay Oil Company, Inc.
1221 Lamar, Suite 1020
Houston, TX 77010
Attention: John J. Bassett
(b) To Eckley: Gerald B. Eckley
1421 Hamblen Road
Kingwood, TX 77339
All such notices shall be conclusively deemed to be received and shall be
effective: (if) if sent by hand delivery, upon receipt; (ii) if sent by telecopy
or facsimile transmission, upon confirmation of receipt by the sender of such
transmission; or (iii) if sent by registered or certified mail, on the fifth day
after the date on which such notice is mailed.
13. GOVERNING LAW. This Agreement has been executed and delivered in
the State of Texas, and its validity, interpretation, performance and
enforcement shall be governed by the laws of said state.
IN WITNESS WHEREOF, this Agreement was signed by the parties as of the
day and year first above written.
MIDDLE BAY OIL COMPANY, INC.
By: /s/ John J. Bassett
----------------------------------------
John J. Bassett, Chief Executive Officer
/s/ Gerald B. Eckley
----------------------------------------
Gerald B. Eckley
- 4 -
<PAGE> 1
EXHIBIT 21.1
SUBSIDIARIES OF REGISTRANT
Middle Bay Production Company, Inc., a Kansas corporation (100% owned)
Enex Resources Corp., a Delaware corporation (79.2% owned)
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of
those portions of our reports included in this Registration Statement and to the
incorporation by reference in this Registration Statement of our report dated
February 27, 1998 included in Middle Bay Oil Company's Annual Report on Form
10-KSB/A for the year ended December 31, 1997 and to all references to our firm
included in this Registration Statement.
/s/ SCHULTZ, WATKINS & COMPANY
Jackson, Mississippi
June 17, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of
those portions of our reports included in this Registration Statement and to the
incorporation by reference in this Registration Statement of our report dated
February 25, 1998 included in Enex Resources Corporations's Annual Report on
Form 10-KSB for the year ended December 31, 1997 and to all references to our
firm included in this Registration Statement.
/s/ DELOITTE & TOUCHE, LLP
Houston, Texas
June 17, 1998
