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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported):
NOVEMBER 24, 1999
MIDDLE BAY OIL COMPANY, INC.
(Exact name of Registrant as specified in its charter)
ALABAMA 0-21702 63-1081013
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(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
Two Shell Plaza, 777 Walker, Suite 2400, Houston, Texas 77002
(Address of principal executive offices and zip code)
(713) 222-6275
Registrant's telephone number, including area code
1221 Lamar, Suite 1020, Houston, Texas 77010
Former Address
ITEM 5 - OTHER EVENTS
On November 24, 1999 Middle Bay Oil Company, Inc.(the "Company"or
"Middle Bay") filed a Certificate of Incorporation of 3TEC Energy Corporation
("3TEC") and a Certificate of Merger of the Company into 3TEC with the
Delaware Secretary of State. The Certificate of Incorporation of 3TEC
authorizes 60,000,000 shares of common stock and 20,000,000 shares of
preferred stock. Pursuant to such filings, effective December 7, 1999, Middle
Bay, an Alabama corporation having securities registered under Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), will
be merged (the "Merger") with and into its wholly-owned subsidiary, 3TEC, a
Delaware corporation. By virtue of the Merger, each share of common stock,
par value $.02 per share, of Middle Bay will be converted into one share of
common stock, par value $.02 per share (the "Common Stock") of 3TEC, each
share of Series B preferred stock of Middle Bay will be converted into one
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share of Series B preferred stock of 3TEC, and each share of Series C
preferred stock of Middle Bay will be converted into one share of Series C
preferred stock of 3TEC. 3TEC shall succeed to all the business, properties,
assets and liabilities of Middle Bay. Each stock certificate representing
issued and outstanding shares of Middle Bay will continue to represent the
same number of shares of stock of 3TEC. Effective December 7, 1999, the
Common Stock of 3TEC will trade on the Nasdaq SmallCap Market under the
symbol "TTEN".
Pursuant to Rule 12g-3(a) promulgated under the Exchange Act, the
stock of 3TEC is deemed to be registered pursuant to Section 12(g) of the
Exchange Act. In accordance with Rule 12g-3(f) 3TEC is filing this Current
Report on Form 8-K.
The December 6, 1999 press release is filed herewith as Exhibit
99.1, and is incorporated herein by reference.
ITEM 7 FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits. The following exhibits are filed herewith and are incorporated
herein by reference:
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2.1 Agreement and Plan of Merger, dated November 24, 1999, by and between
3TEC Energy Corporation, a Delaware corporation and Middle Bay Oil
Company, Inc., an Alabama corporation (Incorporated by reference to
Exhibit A to the definitive Proxy Statement of Middle Bay Oil Company,
Inc., filed October 25, 1999 (Commission File No. 0-21702))
3.1 Certificate of Incorporation of 3TEC Energy Corporation
99.1 Press Release issued by the Registrant on December 6, 1999
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Middle Bay Oil Company, Inc.
(Registrant)
Date: December 6, 1999 By: /s/ Floyd C. Wilson
Floyd C. Wilson
President, Chief Executive Officer
and Chairman of the Board
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EXHIBIT INDEX: The following exhibits are filed herewith and are
incorporated herein by reference:
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2.1 Agreement and Plan of Merger, dated November 24, 1999, by and between
3TEC Energy Corporation, a Delaware corporation and Middle Bay Oil
Company, Inc., an Alabama corporation (Incorporated by reference to
Exhibit A to the definitive Proxy Statement of Middle Bay Oil Company,
Inc., filed October 25, 1999 (Commission File No. 0-21702))
3.1 Certificate of Incorporation of 3TEC Energy Corporation
99.1 Press Release issued by the Registrant on December 6, 1999
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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
3TEC ENERGY CORPORATION
FIRST: The name of the Corporation is 3TEC ENERGY CORPORATION.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the city of Wilmington, county of
New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The Corporation is organized for the purpose of engaging in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware, and the Corporation shall be authorized
to exercise and enjoy all powers, rights and privileges conferred upon
corporations by the laws of the State of Delaware as in force from time to
time, including, without limitation, all powers necessary or appropriate to
carry out all those acts and activities in which it may lawfully be engaged.
FOURTH: The Corporation has authority to issue not more than eighty
million (80,000,000) shares of capital stock, which are divided into classes
as follows:
(a) Sixty million (60,000,000) shares of common stock with $.02 par
value, designated "Common Stock" which, except as specifically granted to the
preferred stock as set forth below, are entitled to the entire stock voting
power in regard to the Corporation, to all dividends declared and to all
assets of the Corporation upon liquidation.
(b) Twenty million (20,000,000) shares of preferred stock with $.02
par value, designated "Preferred Stock".
(c) The designations and the powers, preferences and rights and the
qualifications, limitations or restrictions of the preferred stock shall be
as follows:
The Board of Directors is expressly authorized at any time and from time
to time to provide for the issuance of shares from the authorized preferred
stock which may be issued in one or more series, with such designations,
preferences and relative participating optional or other special rights,
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issuance thereof
adopted by the Board of Directors and as are not stated or expressed in the
Certificate of Incorporation or any Amendment thereto, including (but without
limiting the generality of the foregoing) the following:
(1) the distinctive designation of a series, if any,
and the number of shares which shall
constitute such series, which number may be
increased (except where otherwise provided
by the Board of Directors in creating such
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series) or decreased (but not
below the number of shares
thereof then outstanding) from
time to time by like action of
the Board of Directors;
(2) the annual rate of dividends payable on
preferred shares or on the shares of any
series created, whether the dividends shall be
cumulative, noncumulative or partially
cumulative dividends and the date from
which dividends shall be accumulated, if
dividends are to be cumulative;
(3) the time or times when and the
price or prices at which
preferred shares or shares of
any series created, shall be
redeemable and the sinking
fund provisions, if any, for
the purchase or redemption of
such shares;
(4) the amount payable on
preferred shares or shares of
any series created and the
rights of holders of such
shares in the event of any
liquidation, dissolution or
winding up of the affairs of
the Corporation;
(5) the rights, if any, of the
holders of preferred shares or
shares of any series created
to convert such shares into,
or exchange such shares for,
shares of common stock or
shares of any other series of
preferred stock, if any, and
the terms and conditions of
such conversions or exchange;
and
(6) the voting rights, if any,
which holders of such shares
may exercise.
The Board of Directors is expressly authorized to vary the provisions
relating to the foregoing matters between the various series of Preferred
Shares, but in all other respects the shares of each series of Preferred
Shares shall be of equal rank with each other, regardless of series. All of
the Preferred Shares of any one series shall be identical with each other in
all respects.
(d) DIVIDEND RIGHTS. The holders of the Preferred Shares of any series
shall be entitled to receive, as and when declared by the Board of Directors,
out of funds legally available for that purpose under the laws of the State
of Delaware, preferential dividends which may be either cumulative or
noncumulative at the rate per annum fixed by the Board of Directors for such
series. Such dividends shall be payable at the time determined by the Board
of Directors. If Preferred Shares of more than one series are outstanding,
and the stated dividend is not paid in full, all series of Preferred Shares
shall share ratably in the payment of dividends including accumulations, if
any, in accordance with the sum which
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would be payable on such shares if all dividends were declared and paid in
full. Accumulations of dividends shall not bear interest. So long as any
Preferred Shares shall remain outstanding, no dividends shall be declared or
paid to any distributions made on the Common Shares or on any other class of
shares junior to the Preferred Shares, and no share of common or of any other
class junior to the Preferred Shares shall be purchased or retired, and no
monies shall be made available for a sinking fund for such purpose unless
dividends for all past dividend periods shall have been paid on all
outstanding Preferred Shares of all series. Subject to the above provisions,
and not otherwise, dividends may be paid from time to time on the Common
Shares or other junior issues out of funds legally available for the purpose
as and when declared by the Board of Directors.
(e) REDEMPTION
(1) The Corporation, on the sole
authority of the board of
Directors, may at its option
redeem all or any part of any
series of the Preferred Shares
on the terms, including
redemption price, and to the
extent, if any, therefor
affixed by the Board of
Directors. Such redemption may
be effected only after
dividends which have been
declared or accrued on any
series of Preferred Shares
have been paid. If less than
all of the Preferred Shares of
any series is to be redeemed,
the redemption shall be in
such amount and by such
method, whether by lot or pro
rata, or by such other method
as may then be required by law
or by the rules and
regulations of any stock
exchange upon which the
Preferred Shares may at that
time be listed, as may from
time to time be determined by
the Board of Directors.
Written notice of redemption
stating the date and place of
redemption shall be mailed by
the Corporation, not less than
thirty (30) days nor more than
sixty (60) days prior to the
redemption date, to the record
holders of the shares to be
redeemed, directed to their
last noted addresses as shown
by the corporate records.
(2) If notice of redemption is
given as provided above, and
if on the redemption date the
Corporation has set apart in
trust for the purpose,
sufficient funds for such
redemption, then from and
after the redemption date,
notwithstanding that any
certificate for such shares
has not been surrendered for
cancellation, the Preferred
Shares called for redemption
shall no longer
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be deemed outstanding and all
rights with respect to such
shares shall forthwith cease
and terminate, except on the
right of the holders thereof
to receive the redemption
price, without interest, upon
surrender of certificates of
the shares called for
redemption.
(3) Any funds so set apart or
deposited which, at the end of
one (1) year after the
redemption date, remain
unclaimed by the holder(s) of
Preferred Shares called for
redemption, shall be released
and returned to the
Corporation upon demand, and
shall thereafter be available
for general corporate
purposes, and the depository,
if any, shall thereupon be
relieved of all responsibility
therefor to such holders. Any
interest accrued on funds so
deposited shall be paid to the
Corporation from time to time.
(4) Preferred Shares which are
redeemed as provided in this
section, or are reacquired for
retirement pursuant to any
sinking fund which may be
established therefor, may be
held as Treasury Shares or may
be canceled and retired in the
manner provided by law, and
appropriate proceedings to
effect the corresponding
reduction in the stated
capital of the Corporation
shall be taken.
(f) RIGHTS ON LIQUIDATION. In the event of the liquidation, dissolution,
or winding up of the Corporation, whether voluntary or involuntary, resulting
in any distribution of its assets to its shareholders, the holders of the
Preferred Shares then outstanding shall be entitled to receive the amount per
share theretofore affixed by the Board of Directors of the various series,
plus any accrued interest, and no more, before any payment or distribution of
the assets of the Corporation is made to or set apart for the holders of
Common Shares or any other class junior to the Preferred Shares. If the
assets of the Corporation distributable to the holders of all the Preferred
Shares are insufficient for the payment to them of the full preferential
amount described above, such assets shall be distributed ratably among the
holders of all Preferred Shares of all series in accordance with the amounts
which would be payable on such distribution if all sums payable were
discharged in full. After payment for the preferential amounts required to be
paid to the holders of all Preferred Shares then outstanding, the holders of
Preferred Shares and/or any other class junior to the Preferred Shares shall
be entitled, to the exclusion of the holders of any of the Preferred Shares,
to share in all remaining assets of the Corporation in accordance with their
respective interests.
For the purposes of this Section and any certificate filed pursuant to
law and setting forth the designation, description, and terms of any series
of Preferred Shares, a
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consolidation or merger of the Corporation with any other corporation or
corporations shall not be deemed a liquidation or winding up of the
Corporation.
FIFTH: Unless and except to the extent the bylaws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
SIXTH: The incorporator is David S. Elkouri, whose mailing address is
2000 Epic Center, 301 North Main, Wichita, Kansas 67202.
SEVENTH: The Board of Directors of the Corporation is expressly
authorized to make, alter, amend or repeal the bylaws of the Corporation, but
the stockholders may make additional bylaws and may alter or repeal any bylaw
whether adopted by them or otherwise.
EIGHTH:
(a) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that 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, 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 in connection with such 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 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) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that 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, 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 to the Corporation
unless and only to the extent that the Court of Chancery of 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 the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
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(c) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b) of this
Article EIGHTH, 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.
(d) Any indemnification under subsections (a) and (b) of this Article
EIGHTH (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 paragraphs
(a) and (b) of this Article EIGHTH. Such determination shall be made (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office.
(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, 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 this Article EIGHTH.
(h) For purposes of this Article EIGHTH, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect
to the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had
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continued.
(i) For purposes of this Article EIGHTH, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer employee or
agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the best interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article EIGHTH shall, unless otherwise provided
when authorized or ratified, 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.
NINTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of duty as a director. Without
limiting the foregoing in any respect, a director of the Corporation shall
not be personally liable to the Corporation or its stockholders for monetary
damages for breach of duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any transaction from
which the director derived an improper personal benefit. If the Delaware
General Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended. Any repeal or modification of this provision shall not adversely
affect any right or protection of a director of the Corporation existing at
the time of such repeal or modification.
The undersigned, being the incorporator hereinabove named, for the
purpose of forming a Corporation pursuant to the General Corporation Law of
the State of Delaware, makes the certificate as of November 24, 1999,
declaring and certifying that this is his act and deed and that the facts
herein stated are true.
/s/ David S. Elkouri
---------------------------
David S. Elkouri
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Exhibit 99.1
FOR IMMEDIATE RELEASE
FOR FURTHER INFORMATION CONTACT:
STEVE W. HEROD
713/759-6808, EXT. 104
MIDDLE BAY OIL COMPANY, INC. ANNOUNCES
NAME CHANGE TO 3TEC ENERGY CORPORATION
HOUSTON, TEXAS, DECEMBER 6, 1999... Middle Bay Oil Company, Inc. (NASDAQ
SmallCap: MBOC) announced today that it has changed its name to 3TEC Energy
Corporation ("3TEC" or "Company"), effective December 7, 1999. The name
change, as well as a domicile change from Alabama to Delaware, was approved
by 3TEC's shareholders at a special meeting held November 18, 1999.
The Company's common stock symbol on the NASDAQ SmallCap Market will change
to "TTEN" effective December 7, 1999.
3TEC Energy Corporation is an independent oil and gas exploration and
production company with operations in Texas, Louisiana and Oklahoma.
The information contained in this press release may contain projections,
estimates and other forward-looking statements within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange
Act of 1934. Although the Company believes that its expectations are based on
reasonable assumptions, it can give no assurance that its goals will be
achieved. Important factors that could cause actual results to differ
materially from those included in the forward-looking statements include the
timing and extent of changes in commodity prices for oil and gas,
environmental risks, drilling, producing and operating risks, risks related
to exploration and development, uncertainties about the estimates of
reserves, government regulation, competition and the ability of the Company
to meet its stated business goals.
