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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
FX ENERGY, INC.
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(Exact Name of Registrant as Specified in its Charter)
NEVADA 87-0504461
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3006 HIGHLAND DRIVE, SUITE 206
SALT LAKE CITY, UTAH 84106
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(Address of Principal (Zip Code)
Executive Offices)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NONE
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Title of each class Name of each exchange on which
to be so registered each class is to be registered
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
PREFERRED STOCK PURCHASE RIGHTS
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO REGISTERED
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GENERAL
FX Energy, Inc. (the "Company"), is authorized to issue 20,000,000 shares
of common stock, par value $0.001 ("Common Stock"), and 5,000,000 shares of
preferred stock, par value $ 0.001 ("Preferred Stock"). The Common Stock is
currently traded on the Nasdaq National Market.
PREFERRED STOCK PURCHASE RIGHTS
A dividend of one right ("Right") for each outstanding share of Common
Stock of the Company is issuable to holders of Common Stock as of April 21, 1997
(the "Record Date"). Each Right entitles the registered holder thereof to
purchase from the Company one one-hundredth (1/100) of a share of Series A
Preferred Stock (the "Series A Preferred Stock") at an exercise price of $100
(the "Exercise Price"). The terms and conditions of the Rights are contained in
the rights agreement ("Rights Agreement") between the Company and Fidelity
Transfer Corporation, as rights agent (the "Rights Agent"); and the summary
contained herein is qualified in its entirety by the terms of the Rights
Agreement, which is included as an exhibit to this registration statement.
Initially the Rights will not be exercisable, certificates for the Rights
will not be issued, and the Rights will automatically trade with the Common
Stock.
Until the close of business on the Separation Date, which will occur on the
earliest of (i) the tenth day after the public announcement that a person or
group of affiliated or associated persons ("Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of 20% or more of the
outstanding Voting Shares (as defined in the Rights Agreement) of the Company
(the "Stock Acquisition Date") or (ii) the tenth day after the date of the
commencement of, or first public announcement of, the intent of any person to
commence a tender or exchange offer or take-over bid to acquire beneficial
ownership of 20% or more of the outstanding Voting Shares of the Company or
(iii) such later date as may be fixed by the board of directors from time to
time by notice to the Rights Agent and publicly announced by the Company, the
Rights will be represented by and transferred only with the Common Stock. Until
the Separation Date, new certificates issued for Common Stock after the Record
Date will contain a legend incorporating the Rights Agreement by reference, and
the surrender for transfer of any of the Common Stock certificates will also
constitute the transfer of the Rights associated with the Common Stock
represented by those certificates. Promptly following the Separation Date,
separate certificates representing the Rights will be mailed to holders of
record of Common Stock at the close of business on the Separation Date, and
thereafter the certificates representing the Rights alone will evidence the
Rights. The Rights are not exercisable until the Separation Date.
The Exercise Price payable and the number of shares of Series A Preferred
Stock or other securities or property issuable upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination, or reclassification of, the
Common Stock, (ii) upon the grant to holders of Common Stock of certain rights
or warrants to subscribe for Common Stock or convertible securities at less than
the Market Price (as defined in the Rights Agreement) of the Common Stock, or
(iii) upon the distribution to holders of Common Stock of evidences of
indebtedness or assets (excluding regular cash dividends and dividends payable
in Common Stock) or of subscription rights or warrants.
If any Person becomes an Acquiring Person, other than pursuant to a tender
or exchange offer for all outstanding Common Stock of the Company that the board
of directors, taking into account the long-term value of the Company and all
other factors that the board of directors considers relevant (such as, for
example, the adequacy of the price offered, the fairness of the offer to the
Company and its stockholders, the nature and timing of the offer, the impact on
constituencies other than stockholders, the probability of consummation, the
quality of any securities being offered in the exchange, as well as the basic
stockholder interests at stake, including stockholder interests in long-term as
compared to short-term values and in making independent, uncoerced investment
decisions), determines to be at a price and on terms that are fair to holders of
Common Stock of the Company (a "Flip-in Event"), each holder of a Right, other
than the Acquiring Person, will have the right to receive, upon payment of
one-half (1/2) the Exercise Price, in lieu of Series A Preferred Stock, a number
of shares of Common Stock of the Company having an aggregate Market Price equal
to the Exercise Price.
For example, at the Exercise Price of $100 per Right, if any person
becomes the beneficial owner of 20% or more of the outstanding Common Stock of
the Company, each Right (other than Rights owned by such 20% beneficial owner or
any of its affiliates or associates, which will have become void) would entitle
its holder to purchase $200 worth of Common Stock for $100. Assuming that the
Common Stock had a per share value of $10 at such time, each Right would
effectively entitle its holder to purchase 20 shares of Common Stock for $100.
After a Flip-in Event, Rights that are (or, under certain circumstances,
Rights that were) beneficially owned by an Acquiring Person will be null and
void.
Unless the Rights are redeemed earlier, if, after the Stock Acquisition
Date, the Company is acquired in a merger or other business combination (in
which any of the Common Stock is changed into or exchanged for other securities
or assets) or more than 50% of the assets or operating income or cash flow of
the Company and its subsidiaries (taken as a whole) are sold or transferred in
one or a series of related transactions (a "Flip-over Transaction or Event"),
the Rights Agreement provides that proper provision shall be made so that each
holder of record of Rights will, from and after that time, have the right to
receive, upon payment of the Exercise Price, that number of shares of Common
Stock of the acquiring company (or, in certain circumstances, the direct or
indirect corporate parent of the acquiring company) which has a Market Price at
the time of such Flip-over Transaction or Event equal to twice the Exercise
Price. The right to purchase shares of an acquiring company would not apply to
a transaction with a person that became an Acquiring Person pursuant to a tender
or exchange offer approved by the Company's board of directors if the price paid
to holders of Common Stock in the transaction was not less than the price paid
in such tender or exchange offer.
Fractions of Series A Preferred Stock (other than fractions that are
integral multiples of one one-hundredth of a share) may, at the election of the
Company, be evidenced by depository receipts. The Company may also issue cash
in lieu of fractional shares of Series A Preferred Stock that are not integral
multiples of one one-hundredth of a share of Series A Preferred Stock.
The board of directors believes that the Rights Agreement provides an
important level of protection against abusive corporate takeover techniques.
Decisions respecting redemption of the rights can only be effected by the board
of directors' "Rights Redemption Committee," consisting of at least three
continuing directors, at least a majority of whom are not employees of the
Company In addition to the terms of the Rights Agreement as adopted by the
board of directors, the directors have proposed an amendment to the articles of
incorporation, which provides for a corresponding provision in the articles to
the effect that the Rights may only be redeemed by such a Rights Redemption
Committee, consisting of at least three continuing directors, at least a
majority of whom are not employees of the Company. This provision prevents
stockholders associated with a bidder from adopting a by-law provision or
amendment to the Rights Agreement requiring redemption of the Rights, thereby
circumventing the protections the stockholders that the Rights Agreement is
intended to provide.
At any time prior to the earlier of (i) the Expiration Date (defined as the
close of business on the tenth-year anniversary of the Rights Agreement) or (ii)
the close of business on the tenth day after the Stock Acquisition Date (subject
to extension by the Rights Redemption Committee), the Rights Redemption
Committee may, at its option, cause the Company to redeem the rights in whole,
but not in part, at a price of $0.01 per Right (the "Redemption Price"), subject
to adjustment. Immediately upon the action of the board of directors
authorizing redemption of the Rights, the right to exercise the Rights will
terminate, and the holders of Rights will only be entitled to receive the
Redemption Price without any interest thereon. Decisions respecting redemption
of the Rights can only be effected by the board of directors' Rights Redemption
Committee consisting of at least three continuing directors, at least a majority
of whom are not employees of the Company. A "continuing director" means any
director of the Company who was a director prior to the time the Interested
Stockholder, as defined in the Rights Agreement, became such, and any other
director whose election as a director was recommended for approval by a majority
of the Continuing Directors. An "employee" director means any director who is
currently or who has been during the preceding 12 months a full-time employee of
the Company.
As long as the Rights are redeemable, the Rights Redemption Committee,
without further stockholder approval, may, except with respect to the Exercise
Price or Expiration Date of the Rights, amend the Rights Agreement in any manner
that, in the board of directors' opinion, does not materially adversely affect
the interests of holders of the Rights as such.
Until a Right is exercised, the holder, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or
to receive dividends.
THE SERIES A PREFERRED STOCK
The following description of the Series A Preferred Stock is qualified in
its entirety by the Designation of Rights, Privileges, and Preferences included
as an exhibit to this registration statement.
The Series A Preferred Stock is non-redeemable and subordinate to any other
series of the Company's Preferred Stock which may at any time be issued (the
Company currently does not have any Preferred Stock outstanding). The Series A
Preferred Stock may not be issued, except upon exercise of Rights (each Right to
be distributed to holders of Common Stock entitles such holder to purchase one
one-hundredth of a share of Series A Preferred Stock). Each share of Series A
Preferred Stock is entitled to receive, when, as, and if declared, a dividend in
an amount equal to one hundred times the cash dividend declared on each share of
Common Stock. In addition, each share of Series A Preferred Stock is entitled
to receive one hundred times any non-cash dividends declared with respect to
each share of Common Stock, in like kind, other than a dividend payable in
shares of Common Stock. In the event of liquidation, the holder of each share
of Series A Preferred Stock shall be entitled to receive a liquidation payment
in an amount equal to one hundred times the liquidation payment made per share
of Common Stock of the Company. Each share of Series A Preferred Stock has one
hundred votes, voting together with the Common Stock and not as a separate
class, unless otherwise required by law or the Company's articles of
incorporation. In the event of any merger, consolidation, or other transaction
in which shares of Common Stock of the Company are exchanged, each share of
Series A Preferred Stock is entitled to receive one hundred times the amount
received per share of Common Stock of the Company.
Reserved Shares
The Rights Agreement contemplates that the Company will reserve a
sufficient number of authorized but unissued shares of Common Stock to permit
the exercise in full of the Rights should the Rights become exercisable. The
board of directors has proposed an amendment to the Company's articles of
incorporation to increase the authorized capital of the Company to include an
additional 10,000,000 shares of Common Stock. This amendment will be considered
by the stockholders of the Company at the 1997 annual meeting. If the amendment
is not approved by the stockholders, the number of authorized but unissued and
non-reserved shares of Common Stock would not be sufficient for issuance upon
the Rights becoming exercisable based on the initial terms of the Rights before
the effect of any future anti-dilution adjustment for such events as a share
dividend or stock split or consolidation and before the effect of any future
adjustment resulting from a Flip-In Event. However, pursuant to provisions of
Nevada's corporate law, the board of directors could effect a stock
consolidation without submitting the matter to the stockholders for their
consideration, and the board of directors may do so in the event of a possible
Flip-in Event if the proposed amendment to the articles of incorporation to
increase the authorized number of shares of Common Stock is not approved by the
stockholders. Depending upon the then current market price of the Common Stock
and the Exercise Price, the number of shares of Common Stock presently
authorized or to be authorized if the additional shares are authorized may be
insufficient to permit exercise in full of the Rights upon the occurrence of a
Flip-in Event. Consequently, the effectiveness of the Rights Agreement may be
impaired if an insufficient number of shares is authorized and reserved for
issuance upon the exercise of Rights.
AMENDMENT OF THE RIGHTS AGREEMENT
At any time prior to the Exercisability Date, the Board of Directors may
amend any provision of the Rights Agreement in any manner, including to change
the Exercise Price, without the approval of the holders of the Common Stock.
Thereafter, subject to certain limitations, the Board of Directors may amend the
Rights Agreement without the approval of the holders of the Common Stock so long
as the interests of the holders of the Rights are not adversely affected,
including generally (i) to shorten or lengthen any time period under the Rights
Agreement or (ii) in any manner that the Board deems necessary or desirable, so
long as such amendment is consistent with and for the purpose of fulfilling the
objectives of the Board of Directors in originally adopting the Rights
Agreement.
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ITEM 2. EXHIBITS
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The following exhibits are filed as part of this Registration Statement on
Form 8-A.
TITLE OF DOCUMENT LOCATION
1. Form of Amendment To Articles Of Incorporation Incorporated
Designating Rights, Privileges, And Preferences Of Series by Reference
"A" Preferred Stock (1)
2. Form of Rights Agreement dated as of April 4, 1997, Incorporated
between FX Energy, Inc., and Fidelity Transfer Corp. by Reference
(1)
(1) Incorporated by reference from the Company's current report on Form 8-K
dated April 4, 1997.
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SIGNATURES
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Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
Dated: April 11, 1997 FX ENERGY, INC.
By /s/ Scott J. Duncan, Vice-President
