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EXHIBIT 4.3
CERTIFICATE OF DESIGNATIONS
OF
SERIES D PREFERRED STOCK
(PAR VALUE $1.00 PER SHARE)
OF
HARKEN ENERGY CORPORATION
____________________________
PURSUANT TO SECTION 151
OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
____________________________
HARKEN ENERGY CORPORATION, a corporation organized and 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, as amended, of the Corporation
and in accordance with Section 151 of the General Corporation Law of the State
of Delaware, the Board of Directors of the Corporation on September 27, 1995
duly adopted the following resolution establishing and creating a series of
6,000 shares of Preferred Stock, par value $1.00 per share, of the Corporation:
RESOLVED, that, pursuant to the authority conferred on the
Board of Directors of the Corporation by the Certificate of
Incorporation, as amended, of the Corporation, a series of Preferred
Stock, par value $1.00 per share, of the Corporation is hereby
established and created, and that the designation and number of shares
thereof and the voting and other powers, preferences and relative,
participating, optional or other rights of the shares of such series,
and the qualifications, limitations and restrictions thereof, are as
follows:
SERIES D PREFERRED STOCK
Section 1. Number of Shares and Designation. 6,000 shares of
the Preferred Stock, par value $1.00 per share, of the Corporation are hereby
constituted as a series of the Preferred Stock designated as "Series D
Preferred Stock" (hereinafter referred to as the "Series D Preferred Stock").
Section 2. Definitions. For purposes of the Series D Preferred
Stock, the following terms shall have the meanings indicated:
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"Board of Directors" shall mean the Board of Directors of the
Corporation or, except for purposes of Section 8 hereof, any committee
authorized by such Board of Directors to perform any of its
responsibilities with respect to the Series D Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in Dallas, Texas are
authorized or obligated by law or executive order to close.
"Common Stock" shall mean the Common Stock of the Corporation,
par value $.01 per share.
"dividend payment date" shall have the meaning set forth in
paragraph (a) of Section 3 hereof.
"dividend payment record date" shall have the meaning set
forth in paragraph (a) of Section 3 hereof.
"Dividend Periods" shall mean quarterly dividend periods
commencing on the first day of January, April, July and October of
each year and ending on and including the day preceding the first day
of the next succeeding quarterly dividend period (other than the
initial Dividend Period, which, for each original issuance of shares
of Series D Preferred Stock, shall commence on the date of original
issue of such shares and end on and include the day preceding the
first day of the quarterly dividend period next following the
quarterly dividend period that includes such date of original issue).
"Junior Stock" shall have the meaning set forth in paragraph
(a)(iii) of Section 7 hereof.
"mandatory redemption date" shall have the meaning set forth
in paragraph (b) of Section 5 hereof.
"Parity Stock" shall have the meaning set forth in paragraph
(a)(ii) of Section 7 hereof.
"Redemption Price" shall have the meaning set forth in
paragraph (a) of Section 5 hereof.
"Senior Stock" shall have the meaning set forth in paragraph
(a)(i) of Section 7 hereof.
"Series C Preferred Stock" shall mean the Series C Cumulative
Convertible Preferred Stock, par value $1.00 per share, of the
Corporation.
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"Transfer Agent" means such agent or agents of the Corporation
as may be designated by the Board of Directors as the transfer agent
for the Series D Preferred Stock.
Section 3. Dividends.
(a) The holders of shares of the Series D Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors out of
funds of the Corporation at the time legally available therefor, cumulative
cash dividends at an annual rate of 15% (equal to one hundred and fifty dollars
($150.00) per share of Series D Preferred Stock); provided, however, that if,
at the time of the first issuance of shares of Series D Preferred Stock, any
shares of Series C Preferred Stock remain outstanding and the consent of the
holders of all such outstanding shares of Series C Preferred Stock referred to
in Section 7(b) hereof has not been obtained, the annual dividend rate of the
Series D Preferred Stock shall be 17.5% (equal to one hundred and seventy-five
dollars ($175.00) per share of Series D Preferred Stock). Such dividends shall
be payable quarterly, when and as declared by the Board of Directors, on March
31, June 30, September 30 and December 31 in each year (each a "dividend
payment date"), commencing, for each original issuance of shares of Series D
Preferred Stock, on the last day of the Dividend Period next following the
initial Dividend Period with respect to such shares. If any dividend payment
date shall otherwise be on a day other than a Business Day, then the dividend
payment date shall be on the next succeeding Business Day. Each such dividend
shall be payable in arrears to the holders of record of shares of the Series D
Preferred Stock, as they appear on the stock records of the Corporation at the
close of business on those dates (each such date, a "dividend payment record
date"), not less than 10 days nor more than 60 days preceding the dividend
payment dates thereof, as shall be fixed by the Board of Directors. Dividends
on shares of Series D Preferred Stock shall accrue (whether or not declared and
whether or not there shall be funds of the Corporation legally available for
the payment of such dividends) on a daily basis from and including the date of
original issue of such shares. Accrued dividends shall be cumulative, whether
or not in any Dividend Period or Periods there shall be funds of the
Corporation legally available for the payment of such dividends and whether or
not such dividends are declared, as follows: (i) accrued dividends for an
initial Dividend Period shall accumulate to the extent not paid on the dividend
payment date occurring on the last day of the Dividend Period next following
such initial Dividend Period; and (ii) accrued dividends for each other
Dividend Period shall accumulate to the extent not paid on the dividend payment
date occurring on the last day of the Dividend Period for which they accrue.
Arrearages in the payment of dividends on the Series D Preferred Stock, whether
or not such dividends are declared and whether or not there shall be funds of
the Corporation legally available for the payment of such dividends, shall
accrue interest at a rate per annum which is equal to the lesser of (a) a rate
which is two percent (2%) above the prime rate of interest of First Interstate
Bank of Texas, N.A., as announced or published by such bank from time to time
or a similar rate of interest if a prime rate is not announced or published by
such bank, or (b) the maximum rate from time to time permitted by applicable
law, until paid. As used herein, the term "cumulative" with respect to
dividends includes accumulated dividends, whether or not such dividends are
declared and whether or not there shall be funds of the Corporation legally
available for the payment of such dividends, and any interest accrued thereon.
Cumulative and unpaid dividends for any past Dividend Periods may be declared
and paid at any time, without reference to any regular dividend payment date,
to holders of record on such date,
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not exceeding 45 days preceding the payment date thereof, as may be fixed by
the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period
for the Series D Preferred Stock shall be computed by dividing the annual
dividend amount by four (rounded down to the nearest cent). The amount of
dividends payable for any period shorter or longer than a full Dividend Period
on the Series D Preferred Stock shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. Holders of shares of Series D
Preferred Stock called for redemption on a redemption date falling between the
close of business on a dividend payment record date and the opening of business
on the corresponding dividend payment date shall, in lieu of receiving such
dividend on the dividend payment date fixed therefor, receive the Redemption
Price of such shares on the date fixed for redemption in accordance with the
provisions of Section 5 hereof, which shall include all accrued and unpaid
dividends thereon to the date fixed for redemption. Holders of shares of
Series D Preferred Stock shall not be entitled to any dividends, whether
payable in cash, property or securities, in excess of cumulative dividends, as
herein provided, on the Series D Preferred Stock. Except as expressly provided
in paragraph (a) of this Section 3, no interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on
the Series D Preferred Stock which are in arrears.
(c) So long as any shares of the Series D Preferred Stock are
outstanding, no dividends, except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on any Parity Stock ranking,
as to dividends, on a parity with the Series D Preferred Stock, for any period
unless full cumulative dividends on all outstanding shares of Series D
Preferred Stock have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such
payment for all Dividend Periods terminating on or prior to the date of
payment, or setting apart for payment, of such full cumulative dividends on
such Parity Stock. When dividends are not paid in full or a sum sufficient for
such payment is not set apart, as aforesaid, upon the shares of the Series D
Preferred Stock and any Parity Stock ranking on a parity as to dividends with
the Series D Preferred Stock, all dividends declared upon such Parity Stock
shall be declared and paid pro rata, as nearly as practicable, so that the
amounts of dividends per share declared and paid on the Series D Preferred
Stock and such Parity Stock shall in all cases bear to each other the same
ratio, as nearly as practicable, that accrued and unpaid dividends per share on
the shares of the Series D Preferred Stock and on such Parity Stock bear to
each other.
(d) So long as any shares of the Series D Preferred Stock are
outstanding, no Parity Stock shall be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund or otherwise for the purchase or redemption of any shares of any such
stock) by the Corporation (except by conversion into or exchange for Junior
Stock ranking junior to the Series D Preferred Stock as to dividends and upon
liquidation, dissolution or winding up) unless the full cumulative dividends,
if any, accrued on all outstanding shares of the Series D Preferred Stock shall
have been paid or set apart for payment for all past Dividend Periods and
sufficient funds shall have been set apart for the payment of the dividend for
the current Dividend Period with respect to the Series D Preferred Stock. The
foregoing provisions of this Section 3(d) shall not apply to any mandatory
redemption by the Corporation
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of the Series C Preferred Stock on or after the mandatory redemption date (as
defined in Section 5(b) hereof).
(e) Subject to Section 5(c) hereof, so long as any shares of the
Series D Preferred Stock are outstanding, no dividends (other than dividends or
distributions paid in shares of, or in rights to acquire shares of, Junior
Stock ranking junior to the Series D Preferred Stock as to dividends and upon
liquidation, dissolution or winding up of the Corporation) shall be declared or
paid or set apart for payment and no other distribution shall be declared or
made or set apart for payment, in each case upon any Junior Stock, nor shall
any Junior Stock be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund or
otherwise for the purchase or redemption of any shares of any such stock) by
the Corporation (except by conversion into or exchange for Junior Stock ranking
junior to the Series D Preferred Stock as to dividends and upon liquidation,
dissolution or winding up), unless, in each case (i) the full cumulative
dividends, if any, accrued on all outstanding shares of the Series D Preferred
Stock and any Parity Stock ranking on a parity with the Series D Preferred
Stock as to dividends shall have been paid or set apart for payment for all
past Dividend Periods and all past dividend periods with respect to such Parity
Stock and (ii) sufficient funds shall have been set apart for the payment of
the dividend for the current Dividend Period with respect to the Series D
Preferred Stock and for the current dividend period with respect to such Parity
Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus)
shall be made to or set apart for the holders of Junior Stock ranking junior to
the Series D Preferred Stock upon liquidation, dissolution or winding up, the
holders of the shares of Series D Preferred Stock shall be entitled to receive
one thousand dollars ($1,000) per share plus an amount per share equal to all
dividends (whether or not earned or declared) (including cumulative dividends)
accrued and unpaid thereon to the date of final distribution to such holders;
but such holders shall not be entitled to any further payment. No payment on
account of any liquidation, dissolution or winding up of the Corporation shall
be made to the holders of any Parity Stock ranking on a parity with the Series
D Preferred Stock in respect of the distribution of assets upon liquidation,
dissolution, or winding up unless there shall likewise be paid at the same time
to the holders of the Series D Preferred Stock like proportionate amounts
determined ratably in proportion to the full amounts to which the holders of
all outstanding shares of Series D Preferred Stock and the holders of all
outstanding shares of such Parity Stock are respectively entitled with respect
to such distribution. If, upon any liquidation, dissolution or winding up of
the Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Series D Preferred Stock shall
be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any shares of Parity Stock ranking, as to liquidation,
dissolution or winding up, on a parity with the Series D Preferred Stock, then
such assets, or the proceeds thereof, shall be distributed among the holders of
shares of Series D Preferred Stock and any such Parity Stock ratably in
accordance with the respective amounts that would be payable on such shares of
Series D Preferred Stock and any such Parity Stock if all amounts payable
thereon were paid in full. For the purposes of this Section 4, neither a
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consolidation or merger of the Corporation with one or more corporations or
other entities nor a sale, lease, exchange or transfer of all or any part of
the Corporation's assets for cash, securities or other property shall be deemed
to be a liquidation, dissolution or winding up, voluntary or involuntary.
(b) Subject to the rights of the holders of Parity Stock or Senior
Stock ranking on a parity with or prior to the Series D Preferred Stock upon
liquidation, dissolution or winding up, upon any liquidation, dissolution or
winding up of the Corporation, after payment shall have been made in full to
the holders of Series D Preferred Stock, as provided in this Section 4, any
holders of any Junior Stock ranking junior to the Series D Preferred Stock upon
liquidation, dissolution or winding up shall, subject to the respective terms
and provisions (if any) applicable thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of Series D
Preferred Stock shall not be entitled to share therein.
(c) Written notice of any liquidation, dissolution or winding up
of the Corporation, stating the payment date or dates when and the place or
places where the amounts distributable in such circumstances shall be payable,
shall be given by first class mail, postage prepaid, not less than 15 days
prior to any payment date stated therein, to the holders of record of the
Series D Preferred Stock at their respective addresses as the same shall appear
on the stock records of the Corporation.
Section 5. Redemption.
(a) At any time and from time to time on or after October 12,
1997, the Corporation may, at its option, redeem, out of funds of the
Corporation legally available therefor, all (but not less than all) of the
shares of Series D Preferred Stock at the time outstanding at a redemption
price equal to one thousand dollars ($1,000) per share plus an amount per share
equal to all dividends (whether or not earned or declared) (including
cumulative dividends) accrued and unpaid thereon to the date fixed for
redemption (the "Redemption Price"). Such redemption shall be made in
accordance with the notice and other provisions of Section 5(d) hereof.
(b) On October 12, 2000 (the "mandatory redemption date"), the
Corporation shall, subject to the further provisions of this paragraph (b),
redeem all shares of Series D Preferred Stock at the time outstanding at a
price per share equal to the Redemption Price. If the funds of the Corporation
legally available for redemption of the Series D Preferred Stock on the
mandatory redemption date are insufficient to redeem the total number of shares
of Series D Preferred Stock to be redeemed on such date, those funds that are
legally available shall be used to redeem the maximum possible number of such
shares. At any time or times thereafter when additional funds of the
Corporation are legally available for the redemption of Series D Preferred
Stock, such funds shall promptly be used to redeem at the Redemption Price the
balance of the shares (or, if such funds are insufficient to redeem all
outstanding shares, the maximum possible number of shares) of Series D
Preferred Stock that the Corporation has become obligated to redeem but which
it has not redeemed. Such redemption or redemptions shall be made in
accordance with the notice and other provisions of this Section 5.
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(c) At any time after the mandatory redemption date, if the
Corporation shall not have redeemed all of the issued and outstanding shares of
Series D Preferred Stock required to be redeemed pursuant to Section 5(b)
hereof, then, until all such shares have been so redeemed, no dividends (other
than dividends or distributions paid in shares of, or in rights to acquire
shares of, Junior Stock) shall be declared or paid or set apart for payment, or
other distribution declared or made or set apart for payment, upon any Junior
Stock, nor shall any Junior Stock be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund or otherwise for the purchase or redemption of any shares of any such
stock) by the Corporation (except by conversion into or in exchange for Junior
Stock), nor shall any Parity Stock be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund for the purchase or redemption of any shares of any Parity Stock) by the
Corporation (except by conversion into or in exchange for Junior Stock),
unless, in the case of the mandatory redemption of, repurchase of or
fulfillment of a sinking fund obligation in respect of, any other series of
Parity Stock, payments made in respect of the mandatory redemption of,
repurchase of, or fulfillment of a sinking fund obligation in respect of, the
Series D Preferred Stock and all other series of Parity Stock then issued and
outstanding and entitled to such mandatory payments are made pro rata, as
nearly as practicable, so that the amounts of such payments made on the Series
D Preferred Stock and such other series of Parity Stock shall in all cases bear
to each other the same ratio, as nearly as practicable, that such mandatory
payments required to be made on the Series D Preferred Stock and such other
series of Parity Stock bear to each other. Accrued and unpaid dividends on
outstanding shares of Parity Stock need not be paid or set apart for payment as
a condition to, or in connection with, any mandatory redemption of the Series D
Preferred Stock.
(d) Notice of redemption shall be given by first class mail,
postage prepaid, mailed not less than 15 nor more than 60 days prior to the
redemption date, to each holder of record of shares of Series D Preferred Stock
at such holder's address as the same appears on the stock records of the
Corporation. Each such notice shall state: (i) the redemption date; (ii) the
number of shares of Series D Preferred Stock to be redeemed and, if less than
all the shares held by such holder are to be redeemed, the number of shares to
be redeemed from such holder; (iii) the Redemption Price; (iv) the place or
places where certificates for such shares are to be surrendered for payment of
the Redemption Price; and (v) that dividends on the shares to be redeemed shall
cease to accrue on such redemption date. If, on the redemption date, funds
necessary for the redemption of shares of Series D Preferred Stock shall be
available therefor and shall have been irrevocably deposited or set aside,
then, notwithstanding that the certificates evidencing such shares of Series D
Preferred Stock so called for redemption shall not have been surrendered, the
dividends with respect to such shares so called shall cease to accrue after the
redemption date, such shares shall no longer be deemed outstanding, all rights
of the holders of such shares as stockholders of the Corporation shall cease,
and all rights whatsoever with respect to such shares so called for redemption
(except the right of the holders to receive the applicable Redemption Price
without interest (except for interest accrued on dividend arrearages pursuant
to Section 3(a) hereof) upon surrender of their certificates therefor) shall
terminate, and such shares shall be deemed to be redeemed. Upon surrender in
accordance with said notice of the certificates for any such shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state), such shares shall be redeemed by the
Corporation at the applicable Redemption Price aforesaid.
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(e) If fewer than all the outstanding shares of Series D Preferred
Stock are to be redeemed, shares to be redeemed shall be selected by the
Corporation from outstanding shares of Series D Preferred Stock pro rata (as
near as may be). If fewer than all the shares represented by any certificate
are redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
Section 6. Shares to be Retired. All shares of Series D
Preferred Stock purchased, redeemed or exchanged by the Corporation shall be
retired and cancelled and shall be restored to the status of authorized but
unissued shares of preferred stock, without designation as to series, and may
thereafter be reissued.
Section 7. Ranking.
(a) Any series or class or classes of stock of the Corporation
shall be deemed to be:
(i) Senior Stock, as to dividends or as to the
distribution of assets upon liquidation, dissolution or winding up, if
the holders of such series or class shall be entitled 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 D Preferred Stock;
(ii) Parity Stock, as to dividends or as to the
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 D Preferred Stock, if the holders of such series
or class of stock and of the Series D Preferred Stock shall be
entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
proportion to their respective amounts of accrued and unpaid dividends
per share or liquidation prices, without preference or priority of one
over the other; and
(iii) Junior Stock, as to dividends or as to the
distribution of assets upon liquidation, dissolution or winding up, if
such stock shall be the Common Stock or if the holders of Series D
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 stock.
(b) For purposes of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, the shares of the
Series C Preferred Stock shall be deemed to be Parity Stock, provided that the
holders of all outstanding shares of Series C Preferred Stock shall have duly
consented thereto and to the changes in the rights and preferences of the
Series C Preferred Stock effected hereby prior to the first issuance of shares
of Series D Preferred Stock. In the absence of such consent, the shares of the
Series C Preferred Stock shall be deemed to be Senior Stock.
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Section 8. Voting.
(a) Except as otherwise required by law and as specified in this
Section 8, the holders of shares of Series D Preferred Stock shall not have any
right or power to vote on or consent with respect to any matter or in any
proceeding or to be represented at any meeting of stockholders. Holders of
shares of Series D Preferred Stock shall be entitled to receive all annual
reports, proxy statements or other information required by law to be provided
by the Corporation to all holders of Common Stock. On any matters on which the
holders of shares of Series D Preferred Stock shall be entitled to vote, they
shall be entitled to one vote for each share held.
(b) So long as any shares of Series D Preferred Stock remain
outstanding, the affirmative vote or consent of the holders of a majority of
the shares of Series D Preferred Stock outstanding at the time, given in person
or by proxy, either in writing or at a meeting, shall be necessary to permit,
effect or validate (i) the authorization, creation or issuance, or any increase
in the authorized or issued amount, of any class or series of Senior Stock or
(ii) the amendment, alteration or repeal of any of the provisions of the
Certificate of Incorporation, as amended, of the Corporation which would
materially and adversely affect any right, preference, privilege or voting
power of shares of Series D Preferred Stock or of the holders thereof. The
increase in the amount of authorized preferred stock of the Corporation or the
creation and issuance, or increase in amount of authorized shares, of other
series of Parity Stock or Junior Stock shall not be deemed to affect materially
and adversely such rights, preferences, privileges or voting power.
(c) Whenever, at any time or times, dividends payable on the
shares of Series D Preferred Stock at the time outstanding have not been paid
and remain unpaid in an aggregate amount equal to at least three full quarterly
dividends on such shares (whether or not consecutive), or if the Corporation
shall have failed to redeem all outstanding shares of Series D Preferred Stock
on the mandatory redemption date as required by Section 5(b) hereof, the
holders of the outstanding shares of Series D Preferred Stock shall have the
right, voting separately as a class, to elect one director of the Corporation
at the Corporation's next annual meeting of stockholders and at each subsequent
annual meeting of stockholders; provided, however, that if such voting rights
shall become vested more than 90 days or less than 20 days before the date
prescribed for the annual meeting of stockholders, thereupon the holders of the
shares of Series D Preferred Stock shall be entitled to exercise their voting
rights at a special meeting of the holders of shares of Series D Preferred
Stock as set forth in Section 8(d) hereof. Upon the vesting of such rights of
the holders of Series D Preferred Stock, the then authorized number of members
of the Board of Directors shall automatically be increased by one and the
vacancy so created shall be filled by vote of the holders of outstanding Series
D Preferred Stock as hereinafter set forth. If such voting rights shall become
vested as a result of a default in the payment of dividends, as aforesaid, the
right of holders of Series D Preferred Stock, voting separately as a class, to
elect a member of the Board of
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Directors as aforesaid shall continue until such time as all dividends
accumulated on Series D Preferred Stock shall have been paid, or declared and
funds set aside for payment in full, at which time such right shall terminate,
except as herein or by law expressly provided, subject to revesting in the
event of each and every subsequent default of the character above mentioned in
the first sentence of this paragraph (a). If such voting rights shall become
vested as a result of a default in the redemption of shares of Series D
Preferred Stock, as aforesaid, the right of holders of Series D Preferred
Stock, voting separately as a class, to elect a member of the Board of
Directors as aforesaid shall continue for so long as any such shares of Series
D Preferred Stock remain outstanding. As long as any shares of Series D
Preferred Stock shall remain outstanding, the number of directors of the
Corporation (excluding any director elected by vote of the holders of shares of
Series D Preferred Stock) elected at any meeting of stockholders of the
Corporation at which directors are to be elected shall not be such as would
cause the number of directors in office after such meeting (excluding any
director elected by vote of the holders of shares of Series D Preferred Stock)
to exceed the number which is one less than the maximum number of directors
permitted by the Certificate of Incorporation, as amended, of the Corporation.
Whenever such voting right shall have vested, such right may be exercised
initially either at a special meeting of the holders of shares of Series D
Preferred Stock called as hereinafter provided, or at any annual meeting of
stockholders held for the purpose of electing directors, and thereafter at such
meetings, or by the written consent of such holders pursuant to Section 228 of
the General Corporation Law of the State of Delaware.
(d) At any time when the right to elect a director pursuant to
Section 8(c) hereof shall have vested in the holders of shares of Series D
Preferred Stock entitled to vote thereon, and if such right shall not already
have been initially exercised, an officer of the Corporation shall, upon the
written request of the holders of record of not less than 10% of the shares of
Series D Preferred Stock then outstanding, addressed to the Secretary of the
Corporation, call a special meeting of holders of shares of Series D Preferred
Stock. Such meeting shall be held at the earliest practicable date upon the
notice to holders of Series D Preferred Stock given as required for annual
meetings of stockholders at the place for holding annual meetings of
stockholders of the Corporation or, if none, at a place designated by the
Secretary of the Corporation. If such meeting shall not be called by the
proper officers of the Corporation within 10 days after the personal service of
such written request upon the Secretary of the Corporation, or within 15 days
after mailing the same within the United States, by registered mail, addressed
to the Secretary of the Corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal authorities), then the
holders of record of not less than 10% of the shares of Series D Preferred
Stock then outstanding may designate in writing any person to call such meeting
at the expense of the Corporation, and such meeting may be called by such
person so designated upon the notice to holders of Series D Preferred Stock
given as required for annual meetings of stockholders and shall be held at the
same place as is elsewhere provided in this paragraph. Any holder of shares of
Series D Preferred Stock then outstanding that would be entitled to vote at
such meeting shall have access to the stock books of the Corporation for the
purpose of causing a meeting of stockholders to be called pursuant to the
provisions of this paragraph. Notwithstanding the provisions of this
paragraph, however, no such special meeting shall be called or held during a
period within 30 days immediately preceding the date fixed for the next annual
meeting of stockholders.
(e) The director elected as provided in Section 8(c) hereof shall
serve until the next annual meeting or until his successor shall be elected and
shall qualify; any director elected by the holders of Series D Preferred Stock
may be removed without cause by, and shall not be removed without cause
otherwise than by, the vote of the holders of a majority of the outstanding
shares of the Series D Preferred Stock who are entitled to participate in such
election of directors, voting separately as a class, at a meeting called for
such purpose or by written consent as permitted by law and the Certificate of
Incorporation, as amended, and Bylaws of the Corporation. If the office
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of any director elected by the holders of Series D Preferred Stock, voting
separately as a class, becomes vacant by reason of death, resignation,
retirement, disqualification or removal from office or otherwise, the holders
of Series D Preferred Stock, voting separately as a class, may choose a
successor who shall hold office for the unexpired term in respect of which such
vacancy occurred. Upon any termination of the right of the holders of Series D
Preferred Stock to vote for directors as herein provided, the term of office of
the director then in office elected by the holders of Series D Preferred Stock,
voting separately as a class, shall terminate immediately. Whenever the term
of office of the director elected by the holders of Series D Preferred Stock,
voting separately as a class, shall so terminate and the special voting powers
vested in the holders of Series D Preferred Stock shall have expired, the
number of directors shall be reduced by one.
Section 9. No Re-Issuance of Senior Preferred Stock. The
Corporation shall not issue any additional shares of Series C Preferred Stock
or reissue any shares of its Series A Cumulative Convertible Preferred Stock or
Series B Cumulative Convertible Preferred Stock in each case in preference to
the Series D Preferred Stock unless the holders of a majority of the shares of
the Series D Preferred Stock shall have duly approved such issuance or
reissuance.
Section 10. Record Holders. The Corporation and the Transfer
Agent may deem and treat the record holder of any shares of Series D Preferred
Stock as the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
Section 11. Notices. Except as may otherwise be provided by law
or provided for herein, all notices referred to herein shall be in writing, and
all notices hereunder shall be deemed to have been given upon the earlier of
receipt of such notice or three Business Days after the mailing of such notice
if sent by registered mail (unless first- class mail shall be specifically
permitted for such notice under the terms hereof) with postage prepaid,
addressed: if to the Corporation, to its offices at 5605 N. MacArthur
Boulevard, Suite 400, Irving, Texas 75038 (Attention: Corporate Secretary) or
other agent of the Corporation designated as permitted hereby; or, if to any
holder of the Series D Preferred Stock, to such holder at the address of such
holder of the Series D Preferred Stock as listed in the stock record books of
the Corporation (which shall include the records of the Transfer Agent), or to
such other address as the Corporation or holder, as the case may be, shall have
designated by notice similarly given.
IN WITNESS WHEREOF, this Certificate has been signed on behalf of the
Corporation by the undersigned officer as of the 12th day of October, 1995.
HARKEN ENERGY CORPORATION
By: /s/ Larry E. Cummings
------------------------------
Larry E. Cummings,
Vice President
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