Exhibit 3.2
CERTIFICATE OF DESIGNATION
of
SERIES C PREFERRED STOCK
of
3TEC ENERGY CORPORATION
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Pursuant to Section 151
of the General Corporation Law of Delaware
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3TEC ENERGY CORPORATION, a corporation existing under the laws of the
State of Delaware (the "Corporation"), DOES HEREBY CERTIFY that, pursuant to the
authority conferred on the Board of Directors of the Corporation by the
Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation") and in accordance with Section 151 of the General Corporation
Law of the State of Delaware ("DGCL"), the Board of Directors of the Corporation
on October 1, 1999 duly adopted the following resolution establishing and
creating an additional series of its Preferred Stock, par value $.02 per share,
designated "Series C Preferred Stock".
RESOLVED, that pursuant to authority vested in the Board of
Directors of the Corporation (the "Board of Directors") in accordance
with the provisions of its Certificate of Incorporation (the "Certificate
of Incorporation"), an additional series of Preferred Stock, par value
$.02 per share, of the Corporation is hereby created, and the designation
and number of shares thereof and the preferences, limitations and
relative rights thereof are as follows:
1. DESIGNATION, NUMBER OF SHARES AND STATED VALUE OF SERIES C
PREFERRED STOCK. There is hereby authorized and established a series of
Preferred Stock that shall be designated as "Series C Preferred Stock", and the
number of shares constituting such series shall be 2,300,000. Such number may
be increased or decreased, but not to a number less than the number of shares of
Series C Preferred Stock then issued and outstanding, by resolution adopted by
the full Board of Directors. The "stated value" of the Series C Preferred Stock
shall be $5.00 per share.
2. CERTAIN DEFINITIONS. For purposes of the Series C Preferred Stock,
the following terms shall have the meanings indicated:
"AFFILIATE" of a person means a person that directly, or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with the person specified.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the Corporation
or any committee authorized by such Board of Directors to perform any of its
responsibilities with respect to the Series C Preferred Stock.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or a day
on which state or federally-chartered banking institutions in Houston, Texas are
not required to be open.
"CALL DATE" shall have the meaning set forth in Paragraph 5.B. hereof.
"COMMON STOCK" means, collectively, the Corporation's Common Stock, par
value $0.02 per share, and any capital stock of any class of the Corporation
hereafter authorized which is not limited to a fixed sum or percentage of par or
stated value in respect to the rights of the holders thereof to participate in
dividends or in the dissolution of assets upon any liquidation, dissolution or
winding up of the Corporation.
"CONVERSION RATE" shall initially mean 1.0 to 1.0, subject to adjustment
pursuant to Section D. of Paragraph 7. hereof.
"CUMULATIVE DIVIDENDS" shall mean all accumulated, accrued and unpaid
dividends.
"CURRENT MARKET PRICE" of publicly traded shares of Common Stock or any
other class or series of stock or other security of the Corporation or of any
similar security of any other issuer for any day shall mean the last reported
sales price, regular way on such day, or, if no sale takes place on such day,
the average of the reported closing, bid and asked prices regular way on such
day, in either case as reported on the Small Cap Market of the National
Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq")
or, if such security is not quoted on such Small Cap Market, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by Nasdaq or, if bid and asked prices for such security on such day
shall not have been reported through Nasdaq, the average of the bid and asked
prices on such day as furnished by any Nasdaq member firm regularly making a
market in such security selected for such purpose by the Chief Executive Officer
of the Board of Directors or if any class or series of securities are not
publicly traded, the fair value of the shares of such class as determined
reasonably and in good faith by the Board of Directors of the Corporation.
"DISTRIBUTION" shall have the meaning set forth in Section D(3) of
Paragraph 7. hereof.
"DIVIDEND PAYMENT DATE" shall have the meaning set forth in Section A. of
Paragraph 3. hereof.
"FAIR MARKET VALUE" shall mean the average of the daily Current Market
Prices of a share of Common Stock during five (5) consecutive Trading Days
selected by the Corporation commencing not more than twenty (20) Trading Days
before, and ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or distribution requiring
such computation. The term "'ex' date", when used with respect to any issuance
or distribution, means the first day on which the share of Common Stock trades
regular way, without the right to receive such issuance or distribution, on the
exchange or in the market, as the case may be, used to determine that day's
Current Market Price.
"ISSUE DATE" shall mean December 7, 1999.
"JUNIOR SECURITIES" means any of the Corporation's equity securities
other than the Series B Preferred Stock or any other series of preferred stock
issued as a Parity Stock.
"PARITY STOCK" shall have the meaning set forth in Section A. of
Paragraph 8. hereof.
"PERMITTED COMMON STOCK CASH DISTRIBUTIONS" shall mean cash dividends or
cash distributions out of current or accumulated funds from operations (as
determined by the Board of Directors on a basis consistent with the policies and
practices adopted by the Corporation for reporting publicly its results of
operations and financial condition), and cash dividends which result in a
payment of an equal cash dividend to holders of the Series C Preferred Stock and
Parity Stock pursuant to Section A. of Paragraph 4. hereof.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"SERIES C PREFERRED STOCK" shall have the meaning set forth in Paragraph
1. hereof.
"SET APART FOR PAYMENT" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to an
authorization of dividends or other distribution by the Board of Directors, the
allocation of funds to be so paid on any series or class of stock of the
Corporation.
"TRADING DAY", as to any securities, shall mean any day on which such
securities are traded on the Small Cap Market of Nasdaq or, if such securities
are not quoted on such Small Cap Market, in the securities market in which such
securities are traded.
"TRANSFER AGENT" means such entity as may be designated by the Board of
Directors or their designee as the transfer agent for the Series C Preferred
Stock.
3. DIVIDENDS.
A. The holders of Series C Preferred Stock shall be entitled
to receive, when, as and if authorized and declared by the
Board of Directors out of assets legally available for that
purpose, cumulative dividends in cash in an amount per
share of Series C Preferred Stock equal to $.50 per annum,
payable semi-annually on March 31 and September 30
(measured by the fiscal year of the Corporation) or on such
dates as may be set by the Board of Directors (a "Dividend
Payment Date") to holders of record on such date, not more
than sixty nor less than ten days preceding such Dividend
Payment Date, fixed for such purpose by the Board of
Directors (a "Dividend Record Date"). Such dividends shall
be cumulative from the Issue Date, whether or not such
dividends shall be authorized or there shall be assets of
the Corporation legally available
for the payment of such dividends. Each such dividend
shall be payable to the holders of record of the Series
C Preferred Stock, as they appear on the stock records
of the Corporation at the close of business on the
Dividend Record Date. The amount of Cumulative
Dividends on any share of Series C Preferred Stock, or
fraction thereof, at any date shall be the amount of any
dividends thereon calculated at the applicable rate to
and including such date, whether or not earned or
authorized, which have not been paid in cash.
B. If the Series C Preferred Stock is outstanding for less
than any full fiscal year of the Corporation, the holders
shall be entitled to receive the amount set forth in
Section A. of this Paragraph 3. multiplied by a fraction,
the numerator of which a fraction, the numerator of which
equals the number of days during such fiscal year that such
shares of Series C Preferred Stock were outstanding and the
denominator of which is 360. Holders of Series C Preferred
Stock shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of cumulative
dividends, as herein provided, on the Series C Preferred
Stock. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or
payments on the Series C Preferred Stock that may be in
arrears.
C. So long as any of the shares of Series C Preferred Stock
are outstanding, no dividends (other than dividends or
distributions paid in shares of or options, warrants or
rights to subscribe for or purchase shares of Junior Stock)
shall be authorized or paid or set apart for payment by the
Corporation or other distribution of cash or other property
authorized or made directly or indirectly by the
Corporation with respect to any shares of Junior Stock, nor
shall any shares of Junior Stock be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or
other acquisition of Common Stock made for purposes of an
employee incentive or benefit plan of the Corporation or
any subsidiary) for any consideration (or any moneys be
paid to or made available for a sinking fund for the
redemption of any shares of any such stock) directly or
indirectly by the Corporation (except by conversion into or
exchange for Junior Stock), nor shall any other cash or
other property otherwise be paid or distributed to or for
the benefit of any holder of shares of Junior Stock in
respect thereof, directly or indirectly, by the Corporation
unless in each case (a) the full Cumulative Dividends on
all outstanding shares of Series C Preferred Stock and any
other Parity Stock of the Corporation shall have been paid
or such dividends have been authorized and set apart for
payment with respect to the Series C Preferred Stock and
all past dividend periods with respect to such Parity Stock
and (b) sufficient funds shall have been paid or set apart
for the payment of the full dividend for the current fiscal
year of the Corporation (including any required pursuant to
Section A. of this Paragraph 3.) with respect to the
Series C Preferred Stock and the current dividend period
with respect to such Parity Stock.
4. LIQUIDATION PREFERENCE.
A. In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or
involuntary, before any assets of the Corporation shall be
distributed, paid or set aside for the holders of Junior
Stock, the Corporation shall pay cash to the holders of
shares of Series C Preferred Stock $5.00 per share of
Series C Preferred Stock plus an amount equal to all
Cumulative Dividends (whether or not earned or authorized)
to the date of final distribution to such holders; but such
holders shall not be entitled to any further payment.
Until the holders of the Series C Preferred Stock and
holders of Parity Stock have been paid this liquidation
preference in full, no payment will be made to any holder
of Junior Stock upon the liquidation, dissolution or
winding up of the Corporation. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of
the Corporation, or proceeds thereof, distributable among
the holders of Series C Preferred Stock shall be
insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any other shares of
any class or series of Parity Stock, then such assets, or
the proceeds thereof, shall be distributed among the
holders of Series C Preferred Stock and any such other
Parity Stock ratably in the same proportion as the
respective amounts that would be payable on such Series C
Preferred Stock and any such other Parity Stock if all
amounts payable thereon were paid in full. For the
purposes of this Paragraph 4., (a) a consolidation or
merger of the Corporation with one or more corporations (b)
a sale or transfer of all or substantially all of the
Corporation's assets, or (c) a statutory share exchange
shall not be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, of the Corporation.
B. Subject to the rights of the holders of any shares of
Parity Stock, upon any liquidation, dissolution or winding
up of the Corporation, after payment shall have been made
in full to the holders of Series C Preferred Stock and any
Parity Stock, as provided in this Paragraph 4., any other
series or class or classes of Junior Stock shall, subject
to the respective terms thereof, be entitled to receive any
and all assets remaining to be paid or distributed, and the
holders of the Series C Preferred Stock and any Parity
Stock shall not be entitled to share therein.
C. In determining whether a distribution (other than upon
voluntary or involuntary liquidation) by dividend,
redemption or other acquisition of shares of stock of the
Corporation or otherwise is permitted under the DGCL, no
effect shall be given to amounts that would be needed, if
the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon
dissolution of holders of shares of stock of the
Corporation whose preferential rights upon dissolution are
superior to those receiving the distribution.
5. REDEMPTION AT THE OPTION OF THE CORPORATION.
A. Shares of Series C Preferred Stock shall not be redeemable
by the Corporation prior to January 1, 2000. Shares of
Series C Preferred Stock may be redeemed, in whole or in
part, at the option of the Corporation at any time on or
after January 1, 2000 out of assets legally available
therefor at a redemption price payable in cash equal to
$5.00 per share of Series C Preferred Stock plus an amount
equal to all Cumulative Dividends, if any, to the Call
Date, whether or not earned or authorized, as provided
below).
B. Shares of Series C Preferred Stock shall be redeemed by the
Corporation on the date specified in the notice to holders
required under Section D. of this Paragraph 5. (the "Call
Date"). The Call Date shall be selected by the
Corporation, shall be specified in the notice of redemption
and shall be not less than 30 days nor more than 60 days
after the date notice of redemption is sent by the
Corporation. Upon any redemption of shares of Series C
Preferred Stock pursuant to Section A. of this Paragraph
5., the Corporation shall pay in cash to the holder of such
shares an amount equal to all Cumulative Dividends, if any,
to the Call Date, whether or not earned or authorized.
Immediately prior to authorizing any redemption of the
Series C Preferred Stock, and as a condition precedent for
such redemption, the Company, by resolution of its Board of
Directors, shall authorize a mandatory dividend on the
Series C Preferred Stock payable in cash on the Call Date
in an amount equal to all Cumulative Dividends as of the
Call Date on the Series C Preferred Stock to be redeemed,
which amount shall be added to the redemption price. If
the Call Date falls after a dividend payment record date
and prior to the corresponding Dividend Payment Date, then
each holder of the Series C Preferred Stock at the close of
business on such dividend payment record date shall be
entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the
redemption of such shares prior to such Dividend Payment
Date. Except as provided above, the Corporation shall make
no payment or allowance for accumulated or accrued
dividends on shares of Series C Preferred Stock called for
redemption or on the shares of Common Stock issued upon
such redemption.
C. If full Cumulative Dividends on all outstanding shares of
Series C Preferred Stock and any other class or series of
Parity Stock of the Corporation have not been paid or
authorized and set apart for payment, no shares of Series C
Preferred Stock may be redeemed unless all outstanding
shares of Series C Preferred Stock and Parity Stock are
simultaneously redeemed.
D. If the Corporation shall redeem shares of Series C
Preferred Stock pursuant to Section A. of this Paragraph
5., notice of such redemption shall be given to each holder
of record of the shares to be redeemed. Such notice shall
be provided by first class mail, postage prepaid, at such
holder's address as the same appears on the stock records
of the Corporation not less than 30 days nor more than 60
days prior to the Call Date. If the Corporation elects to
provide such notice by publication, it
shall also promptly mail notice of such redemption to
the holders of the shares of Series C Preferred Stock to
be redeemed. Neither the failure to mail any notice
required by this paragraph (4) nor any defect therein or
in the mailing thereof, to any particular holder, shall
affect the sufficiency of the notice or the validity of
the proceedings for redemption with respect to the other
holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have
been duly given on the date mailed whether or not the
holder receives the notice. Each such mailed or
published notice shall state, as appropriate: (a) the
Call Date; (b) the number of shares of Series C Preferred
Stock to be redeemed and, if fewer than all such shares
held by such holder are to be redeemed, the number of
such shares to be redeemed from such holder; (c) the
place or places at which certificates for such shares
are to be surrendered for certificates representing
shares of Common Stock; (d) the then-current Conversion
Rate; and (e) that dividends on the shares of Series C
Preferred Stock to be redeemed shall cease to accrue on
such Call Date except as otherwise provided herein.
Notice having been published or mailed as aforesaid,
from and after the Call Date (unless the Corporation
shall fail to issue and make available the amount of
cash necessary to effect such redemption, including all
Cumulative Dividends to the Call Date, whether or not
earned or authorized), (i)except as otherwise provided
herein, dividends on the shares of Series C Preferred
Stock so called for redemption shall cease to accumulate
or accrue on the shares of Series C Preferred Stock
called for redemption (except that, in the case of a
Call Date after a dividend record date and prior to the
related Dividend Payment Date, holders of Series C
Preferred Stock on the dividend record date will be
entitled on such Dividend Payment Date to receive the
dividend payable on such shares), (ii) said shares shall
no longer be deemed to be outstanding, and (iii) all
rights of the holders thereof as holders of Series C
Preferred Stock of the Corporation shall cease (except
the rights to receive the cash payable upon such
redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to
receive any dividends payable thereon. The Corporation's
obligation to provide cash in accordance with the
preceding sentence shall be deemed fulfilled if, on or
before the Call Date, the Corporation shall deposit with
a bank or trust company (which may be an affiliate of
the Corporation) that has, or is an affiliate of a bank
or trust company that has, a capital and surplus of at
least $50,000,000, such amount of cash as is necessary
for such redemption, in trust, with irrevocable
instructions that such cash be applied to the redemption
of the shares of Series C Preferred Stock so called for
redemption. No interest shall accrue for the benefit of
the holders of shares of Series C Preferred Stock to be
redeemed on any cash so set aside by the Corporation.
Subject to applicable escheat laws, any such cash
unclaimed at the end of two years from the Call Date
shall revert to the general funds of the Corporation,
after which reversion the holders of the shares of
Series C Preferred Stock so called for redemption shall
look only to the general funds of the Corporation for
the payment of such cash.
As promptly as practicable after the surrender in
accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for
transfer, if the Corporation shall so require and if the
notice shall so state), such certificates shall be
exchanged for cash (without interest thereon) for which
such shares have been redeemed in accordance with such
notice. If fewer than all the outstanding shares of
Series C Preferred Stock are to be redeemed, shares to be
redeemed shall be selected by the Corporation from
outstanding shares of Series C Preferred Stock not
previously called for redemption by lot or by any other
method as may be determined by the Board of Directors in
its discretion to be equitable. If fewer than all the
shares of Series C Preferred Stock represented by any
certificate are redeemed, then a new certificate
representing the unredeemed shares shall be issued without
cost to the holders thereof.
6. STATUS OF SHARES. All shares of Series C Preferred Stock which
shall have been issued and redeemed, converted or reacquired in any manner by
the Corporation shall be restored to the status of authorized, but unissued
shares of Preferred Stock, without designation as to series.
7. CONVERSION. Holders of Series C Preferred Stock shall have the
right to convert all or a portion of such shares into shares of Common Stock, as
follows:
A. Subject to and upon compliance with the provisions of this
Paragraph 7., a holder of shares of Series C Preferred Stock shall
have the right, at such holder's option, at any time to convert
such shares, in whole or in part, into the number of fully paid
and nonassessable shares of authorized but previously unissued
shares of Common Stock obtained by multiplying the number of
shares of Series C Preferred Stock to be converted and the
Conversion Rate (as in effect at the time and on the date provided
for in the last clause of Section B. of this Paragraph 7.) by
surrendering such shares to be converted, such surrender to be
made in the manner provided in Section B. of this Paragraph 7.;
provided, however, that the right to convert shares of Series C
Preferred Stock called for redemption pursuant to Paragraph 5.
shall terminate at the close of business on the Call Date fixed
for such redemption, unless the Corporation shall default in
making payment upon such redemption under Paragraph 5. hereof.
B. In order to exercise the conversion right, the holder of each
share of Series C Preferred Stock to be converted shall surrender
the certificate representing such share, duly endorsed or assigned
to the Corporation or in blank, at the office of the Transfer
Agent, accompanied by written notice to the Corporation that the
holder thereof elects to convert such shares of Series C Preferred
Stock. Unless the shares issuable on conversion are to be issued
in the same name as the name in which such share of Series C
Preferred Stock is registered, each share surrendered for
conversion shall be accompanied by instruments of transfer, in
form satisfactory to the Corporation and the Transfer Agent, duly
executed by the holder or such holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar
tax (or evidence reasonably satisfactory to the Corporation and
the Transfer Agent demonstrating that such taxes have been paid).
Holders of shares of Series C Preferred Stock at the close
of business on a dividend payment record date shall be entitled to
receive the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the conversion thereof
following such dividend payment record date and prior to such
Dividend Payment Date. However, shares of Series C Preferred
Stock surrendered for conversion during the period between the
close of business on any dividend payment record date and the
opening of business on the corresponding Dividend Payment Date
(except shares converted after the issuance of notice of
redemption with respect to a Call Date during such period, such
shares of Series C Preferred Stock being entitled to such dividend
on the Dividend Payment Date) must be accompanied by payment of an
amount equal to the dividend payable on such shares on such
Dividend Payment Date. A holder of shares of Series C Preferred
Stock on a dividend payment record date who (or whose transferee)
tenders any such shares for conversion into shares of Common Stock
on such Dividend Payment Date will receive the dividend payable by
the Corporation on such shares of Series C Preferred Stock on such
date, and the converting holder need not include payment of the
amount of such dividend upon surrender of shares of Series C
Preferred Stock for conversion. Except as provided above, the
Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for
dividends on the shares of Common Stock issued upon such
conversion.
As promptly as practicable after the surrender of
certificates for shares of Series C Preferred Stock as aforesaid,
the Corporation shall issue and shall deliver at such office to
such holder, or send on such holder's written order, a certificate
or certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares of Series C Preferred
Stock in accordance with provisions of this Section F, and any
fractional share of Common Stock arising upon such conversion
shall be settled as provided in Section C of this Paragraph 7.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which
the certificates for shares of Series C Preferred Stock shall have
been surrendered and such notice received by the Corporation as
aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby at
such time on such date and such conversion shall be at the
Conversion Rate in effect at such time on such date unless the
stock transfer books of the Corporation shall be closed on that
date, in which event such person or persons shall be deemed to
have become such holder or holders of record at the close of
business on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion
Rate in effect on the date on which such shares shall have been
surrendered and such notice received by the
Corporation.
C. No fractional share of Common Stock or scrip representing
fractions of a share of Common Stock shall be issued upon
conversion of the shares of Series C Preferred Stock. Instead of
any fractional interest in a share of Common Stock that would
otherwise be deliverable upon the conversion of shares of Series C
Preferred Stock, the Corporation shall pay to the holder of such
share an amount in cash based upon the Current Market Price of the
Common Stock on the Trading Day immediately preceding the date of
conversion. If more than one share shall be surrendered for
conversion at one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of full shares of
Common Stock issuable upon conversion thereof shall be computed on
the basis of the aggregate number of shares of Series C Preferred
Stock so surrendered.
D. The Conversion Rate shall be adjusted from time to time as
follows:
(1) If the Corporation shall after the Issue Date (i) pay a
dividend or make a distribution on its shares of Common
Stock in shares of Common Stock, (ii) subdivide its
outstanding Common Stock into a greater number of shares,
(iii) combine its outstanding Common Stock into a smaller
number of shares or (iv) issue any shares of stock by
reclassification of its Common Stock, the Conversion Rate
in effect at the opening of business on the day following
the date fixed for the determination of stockholders
entitled to receive such dividend or distribution or at the
opening of business on the day following the day on which
such subdivision, combination or reclassification becomes
effective, as the case may be, shall be adjusted so that
the holder of any share of Series C Preferred Stock
thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock (or fraction
of a share of Common Stock) that such holder would have
owned or have been entitled to receive the number of
shares of Common Stock (or fraction of a share of Common
Stock) that such holder would have owned or have been
entitled to receive after the happening of any of the
events described above had such share of Series C Preferred
Stock been converted immediately prior to the record date
in the case of a dividend or distribution or the effective
date in the case of a subdivision, combination or
reclassification. An adjustment made pursuant to this
Section D(1) of Paragraph 7 shall become effective
immediately after the opening of business on the day next
following the record date (except as provided in Section H.
below) in the case of a dividend or distribution and shall
become effective immediately after the opening of business
on the day next following the effective date in the case of
a subdivision, combination or reclassification.
(2) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Stock
entitling them (for a period expiring within 45 days after
the record date described below in this Section D(2) of
Paragraph 7) to subscribe for or purchase Common
Stock on the record date for the determination of
stockholders entitled to receive such rights or
warrants, then the Conversion Rate in effect at the
opening of business on the day next following such
record date shall be adjusted to equal the rate
determined by multiplying (i) the Conversion Rate in
effect immediately prior to the opening of business on
the day following the date fixed for such determination
by (ii) a fraction, the numerator of which shall be the
sum of (X) the number of shares of Common Stock
outstanding on the close of business on the date fixed
for such determination and (Y) the number of additional
shares of Common Stock offered for subscription or
purchase pursuant to such rights or warrants, and the
denominator of which shall be the sum of (XX) the number
of shares of Common Stock outstanding on the close of
business on the date fixed for such determination and
(YY) the number of shares that the aggregate proceeds to
the Corporation from the exercise of such rights or
warrants for Common Stock would purchase at such Fair
Market Value. Such adjustment shall become effective
immediately after the opening of business on the day
next following such record date (except as provided in
Section H below). In determining whether any rights or
warrants entitle the holders of Common Stock to
subscribe for or purchase Common Stock at less than such
Fair Market Value, there shall be taken into account any
consideration received by the Corporation upon issuance
and upon exercise of such rights or warrants, the value
of such consideration, if other than cash, to be
determined in good faith by the Board of Directors.
(3) If the Corporation shall distribute to all holders of its
Common Stock any shares of stock of the Corporation (other
than common Stock) or evidence of its indebtedness of
assets (including cash, but excluding Permitted Common
Stock Cash Distributions) or rights or warrants to
subscribe for or purchase any of its securities (excluding
those rights and warrants issued to all holders of Common
Stock entitling them for a period expiring within 45 days
after the record date referred to in Section D(2) of this
Paragraph 7. above to subscribe for or purchase Common
Stock, which rights and warrants are referred to in and
treated under such Section D(2) above) (any of the
foregoing being hereinafter in this Section D(3) called the
"Distribution"), then in each such case the Conversion Rate
shall be adjusted so that it shall equal the rate
determined by multiplying (i) the Conversion Rate in effect
immediately prior to the close of business on the date
fixed for the determination of stockholders entitled to
receive such Distribution by (ii) a fraction, the numerator
of which shall be the Fair Market Value per share of Common
Stock on the record date mentioned below, and the
denominator of which shall be the Fair Market Value per
share of Common Stock on the record date mentioned below
less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and
described in a Board resolution), of the portion of the
stock or assets or evidences of indebtedness so distributed
or of such rights or warrants applicable to one share of
Common Stock. Such adjustment shall become effective
immediately at the opening of business on the Business Day
next following (except as provided in
Section H below) the record date for the determination
of stockholders entitled to receive such Distribution.
For the purposes of this Section D(3), the distribution
of a right or warrant to subscribe or purchase any of
the Corporation's securities, which is distributed not
only to the holders of the Common Stock on the date
fixed for the determination of stockholders entitled to
such Distribution of such right or warrant, but also is
distributed with shares of Common Stock delivered to a
Person converting shares of Series C Preferred Stock
after such determination date, shall not require an
adjustment of the Conversion Rate pursuant to this
Section D(3); provided that if on the date, if any, on
which a person converting shares of Series C Preferred
Stock such person would no longer be entitled to receive
such right or warrant with shares of Common Stock (other
than as a result of the termination of all such right or
warrant), a distribution of such rights or warrants
shall be deemed to have occurred and the Conversion Rate
shall be adjusted as provided in this Section D(3) and
such day shall be deemed to be "the date fixed for the
determination of the stockholders entitled to receive
such distribution" and "the record date" within the
meaning of the two preceding sentences.
(4) No adjustment in the Conversion Rate shall be required
unless such adjustment would require a cumulative increase
or decrease of at least 1% in such rate; provided, however,
that any adjustments that by reason of this Section D(4)
are not required to be made shall be carried forward and
taken into account in any subsequent adjustment until made;
and provided, further, that any adjustment shall be
required and made in accordance with the provisions of this
Paragraph 7 [other than this Section D(4)] not later than
such time as may be required in order to preserve the
tax-free nature of a distribution to the holders of shares
of Common Stock. Notwithstanding any other provisions of
this Paragraph 7, the Corporation shall not be required to
make any adjustment of the Conversion Rate for the
issuance of any shares of Common Stock pursuant to any
plan providing for the reinvestment of dividends or
interest payable on securities of the Corporation and
the investment of additional optional amounts in shares
of Common Stock under such plan. All calculations under
this Paragraph 7 shall be made to the nearest cent (with
$.005 being rounded upward) or to the nearest one-tenth
of a share (with .05 of a share being rounded upward),
as the case may be. Anything in this Section D of this
Paragraph 7 to the contrary notwithstanding, the
Corporation shall be entitled, to the extent permitted
by law, to make such reductions in the Conversion Rate,
in addition to those required by this Section D, as it
in its discretion shall determine to be advisable in
order that any stock dividends, subdivision of shares,
reclassification or combination of shares, distribution
of rights or warrants to purchase stock or securities,
or a distribution of other assets (other than cash
dividends) hereafter made by the Corporation to its
stockholders shall not be taxable, or if that is not
possible, to diminish any taxes that are otherwise
payable because of such event.
E. If:
(1) the Corporation shall authorize a dividend (or any
other distribution) on the Common Stock (other than
cash dividends and cash distributions to the extent
the same constitute Permitted Common Stock Cash
Distributions); or
(2) the Corporation shall authorize the granting to the
holders of the Common Stock of rights or warrants to
subscribe for or purchase any shares of any class or
series of stock or any other rights or warrants; or
(3) there shall be any reclassification of the Common
Stock or any consolidation or merger to which the
Corporation is a party and for which approval of any
stockholders of the Corporation is required, or a
statutory share exchange, or an issuer or self
tender offer by the Corporation for all or a
substantial portion of its outstanding shares of
Common Stock (or an amendment thereto changing the
maximum number of shares sought or the amount or
type of consideration being offered therefor) or the
sale or transfer of all or substantially all of the
assets of the Corporation as an entirety; or
(4) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation,
then the Corporation shall cause to be filed with the
Transfer Agent and shall cause to be mailed to each holder
of shares of Series C Preferred Stock at such holder's
address as shown on the stock records of the Corporation,
as promptly as possible, but at least 15 days prior to the
applicable date hereinafter specified, a notice stating (i)
the record date for the payment of such dividend,
distribution or rights or warrants, or, if a record date is
not established, the date as of which the holders of Common
Stock of record to be entitled to such dividend,
distribution or rights or warrants are to be determined or
(ii) the date on which such reclassification,
consolidation, merger, statutory share exchange, sale,
transfer, liquidation, dissolution or winding up is
expected to become effective, and the date as of which it
is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for
securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, statutory share
exchange, sale, transfer, liquidation, dissolution or
winding up or (iii) the date on which such tender offer
commenced, the date on which such tender offer is scheduled
to expire unless extended, the consideration offered and
the other material terms thereof (or the material terms of
any amendment thereto). Failure to give or receive such
notice or any defect therein shall not affect the legality
or validity of the proceedings described in this Paragraph
7.
F. Whenever the Conversion Rate is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an
officer's certificate setting forth the Conversion Rate after such
adjustment and setting forth a brief statement
of the facts requiring such adjustment which certificate shall
be conclusive evidence of the correctness of such adjustment
absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted
Conversion Rate and the date such adjustment becomes effective
and shall mail such notice of such adjustment of the Conversion
Rate to each holder of shares of Series C Preferred Stock at such
holder's last address as shown on the stock records of the
Corporation.
G. In any case in which Section D. of this Paragraph 7. provides that
an adjustment shall become effective on the day next following the
record date for an event, the Corporation may defer until the
occurrence of such event (i) issuing to the holder of any share of
Series C Preferred Stock converted after such record date and
before the occurrence of such event the additional Common Stock
issuable upon such conversion by reason of the adjustment required
by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (ii) paying
to such holder any amount of cash in lieu of any fraction pursuant
to Section C. of this Paragraph 7.
H. There shall be no adjustment of the Conversion Rate in case of the
issuance of any stock of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically
set forth in this Paragraph 7. If any action or transaction would
require adjustment of the Conversion Rate pursuant to more than
one paragraph of this Paragraph 7, only one adjustment shall be
made and such adjustment shall be the amount of adjustment that
has the highest absolute value.
I. If the Corporation shall take any action affecting the Common
Stock, other than action described in this Paragraph 7, that in
the opinion of the Board of Directors would materially adversely
affect the conversion rights of the holders of Series C Preferred
Stock, the Conversion Rate for the Series C Preferred Stock may be
adjusted, to the extent permitted by law, in such manner, if any,
and at such time as the Board of Directors, in its sole
discretion, may determine to be equitable under the circumstances.
J. The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or
delivery of shares of Common Stock or other securities or property
on conversion or redemption of shares of Series C Preferred Stock
pursuant hereto; provided, however, that the Corporation shall not
be required to pay any tax that may be payable in respect of any
transfer involved in the issue or delivery of shares of Common
Stock or other securities or property in a name other than that of
the holder of the shares of Series C Preferred Stock to be
converted or redeemed, and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery has
paid to the Corporation the amount of any such tax or established,
to the reasonable satisfaction of the Corporation, that such tax
has been paid.
8. RANKING. So long as any shares of Series C Preferred Stock are
outstanding, the
Corporation shall not issue any class or series of Stock which would entitle
the holders thereof to the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of Series C Preferred Stock. Any class
or series of stock of the Corporation shall be deemed to rank:
A. on a parity with the Series C Preferred Stock, as to the
payment of dividends and as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from
those of the Series C Preferred Stock, if the holders of
such class of stock or series and the Series C Preferred
Stock shall be entitled to the receipt of dividends and of
amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of
accrued and unpaid dividends per share or liquidation
preferences, without preference or priority one over the
other ("Parity Stock"); and
B. junior to the Series C Preferred Stock, as to the payment
of dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such stock or
series shall be Common Stock or if the holders of Series C
Preferred Stock shall be entitled to receipt of dividends
or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or
priority to the holders of shares of such class or series
("Junior Stock").
Series B Preferred Stock shall be considered Parity Stock.
9. VOTING RIGHTS. Holders of Series C Preferred Stock are entitled
to vote solely upon those amendments, alterations or repeals of any provision of
the Corporation's Certificate of Incorporation adversely affecting their rights
and preferences as preferred stockholders; provided, however, that the issuance
by the Corporation of additional series of preferred stock will not be deemed to
adversely affect the rights and preferences of holders of Series C Preferred
Stock, so long as any such series of preferred stock ranks junior to or on a
parity with the Series C Preferred Stock. The holders of Series C Preferred
Stock shall have no other voting rights, except as prescribed by law.
For purposes of the foregoing provisions of this Paragraph 9, each
share of Series C Preferred Stock shall have one vote per share.
Nothing contained in this Paragraph 9 shall require a vote of the
holders of Series C Preferred Stock (i) in connection with any merger or
consolidation in which the Corporation is the surviving entity if, immediately
after the merger or consolidation, there are outstanding no shares and no
securities convertible into shares of any class ranking as to distribution
rights or liquidation preference senior to the Series C Preferred Stock or (ii)
in connection with any merger or consolidation in which the Corporation is not
the surviving entity if, as result of the merger or consolidation, the holders
of Series C Preferred Stock receive shares of stock or beneficial interest or
other equity securities with preferences, rights and privileges not materially
inferior to the preferences, rights and privileges of the Series C Preferred
Stock.
10. SEVERABILITY OF PROVISIONS. If any preference, conversion or
other right, voting power, restriction, limitation as to dividends or other
distributions, qualification or term or condition of redemption of the Series C
Preferred Stock set forth herein is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of the Series C Preferred Stock set forth herein which can be given
effect without the invalid, unlawful or unenforceable provision thereof shall,
nevertheless, remain in full force and effect, and no preferences, conversion or
other rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption of the
Series C Preferred Stock herein set forth shall be deemed dependent upon any
other provision thereof unless so expressed therein.
RESOLVED FURTHER, that the appropriate officers of the Corporation
be, and they are hereby, authorized and directed from time to time to
execute such certificates, instruments or other documents and do all such
things as may be necessary or advisable in their discretion in order to
carry out the terms hereof, including the filing with the Secretary of
State for the State of Delaware of a copy of the foregoing resolution
executed by an officer of the Corporation.
Dated November 24, 1999.
3TEC ENERGY CORPORATION
By: /s/ Floyd C. Wilson
Name: Floyd C. Wilson
Title: President