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EXHIBIT 4a
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MESA INC.
ARTICLE ONE
MESA Inc., a Texas corporation (the "Company"), pursuant to
the provisions of Article 4.07 of the Texas Business Corporation Act, hereby
adopts these Amended and Restated Articles of Incorporation, that accurately
copy the Amended and Restated Articles of Incorporation of the Company in
effect on the date hereof, and as further amended by these Amended and Restated
Articles of Incorporation as hereinafter set forth and which contain no other
change in any provisions thereof.
ARTICLE TWO
The Amended and Restated Articles of Incorporation of the
Company are amended by these Amended and Restated Articles of Incorporation as
follows:
The amendments made by these Amended and Restated Articles of
Incorporation (the "Amendments") alter or change Article IV of the Amended and
Restated Articles of Incorporation and the full text of each provision altered
or added is as set forth in Exhibit A attached hereto. The Amendments effect a
one-for-five reverse stock split of the authorized shares of Common Stock,
reducing such number from 500,000,000 to 100,000,000, but do not increase the
par value of the Common Stock, which remains at $.01 per share.
ARTICLE THREE
The Amendments have been effected in conformity with the
provisions of the Texas Business Corporation Act and such Amended and Restated
Articles of Incorporation were duly adopted by the sole shareholder of the
Company on December 12, 1991.
ARTICLE FOUR
On that date there were 1,000 shares of Common Stock
outstanding, all of which were entitled to vote on the Amendments. All 1,000
shares of Common Stock were voted in favor of the Amendments.
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ARTICLE FIVE
The Amended and Restated Articles of Incorporation of the
Company filed with the Secretary of State of the State of Texas on October 10,
1991 are hereby superceded by the Amended and Restated Articles of
Incorporation attached hereto as Exhibit A, which accurately copy the entire
text thereof as amended hereby.
EXECUTED AND EFFECTIVE this 31st day of December, 1991.
MESA INC.
By: /s/ T. BOONE PICKENS, JR.
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Name: T. Boone Pickens, Jr.
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Title: Chairman of the Board and
Chief Executive Officer
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EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MESA INC.
ARTICLE I
The name of the corporation is MESA Inc.
ARTICLE II
The period of the corporation's duration is perpetual.
ARTICLE III
The purpose or purposes for which the corporation is organized
is the transaction of all lawful business for which corporations may be
organized under the Texas Business Corporation Act.
ARTICLE IV
The aggregate number of shares that the corporation shall have
the authority to issue is 110,000,000 shares, consisting of 100,000,000 shares
of Common Stock, par value $0.01 per share, and 10,000,000 shares of Preferred
Stock, par value $0.01 per share.
The descriptions of the different classes of capital stock of
the corporation and the preferences, designations, relative rights, privileges
and powers, and the restrictions, limitations and qualifications thereof, of
said classes of stock are as follows:
Division A - Preferred Stock
The shares of Preferred Stock may be divided into and issued
in one or more series, the relative rights and preferences of which series may
vary in any and all respects. The board of directors of the corporation is
hereby vested with the authority to establish series of Preferred Stock by
fixing and determining all the preferences, limitations and relative rights of
the shares of any series so established, to the extent not provided for in
these articles of incorporation or any amendment hereto, and with the authority
to increase or decrease the number of shares within each such series; provided,
however, that the board of directors may not decrease the number of shares
within a series below the number of shares within such series that is then
issued. The authority of
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the board of directors with respect to each such series shall include, but not
be limited to, determination of the following:
(1) the distinctive designation and number of shares of
that series;
(2) the rate of dividend (or the method of calculation
thereof) payable with respect to shares of that series, the dates,
terms and other conditions upon which such dividends shall be payable,
and the relative rights of priority of such dividends to dividends
payable on any other class or series of capital stock of the
corporation;
(3) the nature of the dividend payable with respect to
shares of that series as cumulative, noncumulative or partially
cumulative, and if cumulative or partially cumulative, from which date
or dates and under what circumstances.
(4) whether shares of that series shall be subject to
redemption, and, if made subject to redemption, the times, prices,
rates, adjustments and other terms and conditions of such redemption
(including the manner of selecting shares of that series for
redemption if fewer than all shares of such series are to be
redeemed);
(5) the rights of the holders of shares of that series in
the event of voluntary or involuntary liquidation, dissolution or
winding up of the corporation (which rights may be different if such
action is voluntary than if it is involuntary), including the relative
rights of priority in such event as to the rights of the holders of
any other class or series of capital stock of the corporation;
(6) the terms, amounts and other conditions of any
sinking or similar purchase or other fund provided for the purchase or
redemption of shares of that series;
(7) whether shares of that series shall be convertible
into or exchangeable for shares of capital stock or other securities
of the corporation or of any other corporation or entity, and, if
provision be made for conversion or exchange, the times, prices,
rates, adjustments and other terms and conditions of such conversion
or exchange;
(8) the extent, if any, to which the holders of shares of
that series shall be entitled (in addition to any voting rights
provided by law) to vote as a class or otherwise with respect to the
election of directors or otherwise;
(9) the restrictions and conditions, if any, upon the
issue or reissue of any additional Preferred Stock ranking on a parity
with or prior to shares of that series as to dividends or upon
liquidation, dissolution or winding up;
(10) any other repurchase obligations of the corporation,
subject to any limitations of applicable law; and
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(11) notwithstanding their failure to be included
in (1) through (10) above, any other designations, preferences,
limitations or relative rights of shares of that series.
Any of the designations, preferences, limitations or relative rights (including
the voting rights) of any series of Preferred Stock may be dependent on facts
ascertainable outside these articles of incorporation.
Shares of any series of Preferred Stock shall have no voting
rights except as required by law or as provided in the preferences, limitations
and relative rights of such series.
Division B - Common Stock
1. Dividends. Dividends may be paid on the Common Stock
out of any assets of the corporation available for such dividends subject to
the rights of all outstanding shares of capital stock ranking senior to the
Common Stock in respect of dividends.
2. Distribution of Assets. In the event of any
liquidation, dissolution or winding up of the corporation, after there shall
have been paid to or set aside for the holders of capital stock ranking senior
to the Common Stock in respect of rights upon liquidation, dissolution or
winding up the full preferential amounts to which they are respectively
entitled, the holders of the Common Stock shall be entitled to receive, pro
rata, all of the remaining assets of the corporation available for distribution
to its shareholders.
3. Voting Rights. The holders of the Common Stock shall
be entitled to one vote per share for all purposes upon which such holders are
entitled to vote, except for the election of directors, which is subject to
cumulative voting.
Division C - General
1. No Preemptive Rights. No shareholder of the
corporation shall by reason of his holding shares of any class have any
preemptive or preferential right to acquire or subscribe for any additional,
unissued or treasury shares of any class of the corporation now or hereafter to
be authorized, or any notes, debentures, bonds or other securities convertible
into or carrying any right, option or warrant to subscribe to or acquire shares
of any class now or hereafter to be authorized, whether or not the issuance of
any such shares, or such notes, debentures, bonds or other securities, would
adversely affect the dividends or voting or other rights of such shareholder,
and the board of directors may issue or authorize the issuance of shares of any
class, or any notes, debentures, bonds or other securities convertible into or
carrying rights, options or warrants to subscribe to or acquire shares of any
class, without offering any such shares of any class, either in whole or in
part, to the existing shareholders of any class.
2. Share Dividends. Subject to any restrictions in favor of
any series of Preferred Stock provided in the relative rights and preferences
of such series, the corporation may pay a share dividend in shares of any class
or series of capital stock of the corporation to the holders of shares of any
class or series of capital stock of the corporation.
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ARTICLE V
The corporation will not commence business until it has
received for the issuance of its shares consideration of the value of $1,000,
consisting of money, labor done or property actually received.
ARTICLE VI
The street address of the corporation's initial registered
office is 350 N. St. Paul, Dallas, Texas 75201 and the name of its initial
registered agent at such address is C T Corporation System.
ARTICLE VII
No action required to be taken or which may be taken at any
annual or special meeting of shareholders of the corporation may be taken
without a meeting, and the power of shareholders to consent in writing, without
a meeting, to the taking of any action is specifically denied.
ARTICLE VIII
Special meetings of shareholders may be called by the
corporation's chief executive officer or the board of directors. Subject to
the provisions of the corporation's bylaws governing special meetings, holders
of not less than twenty percent of the outstanding shares of stock entitled to
vote at the proposed special meeting may also call a special meeting of
shareholders by furnishing the corporation a written request which states the
purpose or purposes of the proposed meeting in the manner set forth in the
bylaws.
ARTICLE IX
The number of directors of the corporation shall be fixed by,
or in the manner provided in, the bylaws. The number of directors constituting
the initial board of directors is one, and the name and address of the person
who is to serve as director until the first annual meeting of the shareholders
or until such director's successor is elected and qualified is:
Name Address
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T. Boone Pickens 2600 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
The election and removal of directors is subject to cumulative
voting as provided in the Texas Business Corporation Act and the provisions of
the corporation's bylaws.
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ARTICLE X
A director of the corporation shall not be liable to the
corporation or its shareholders for monetary damages for an act or omission in
the director's capacity as a director, except that this article does not
eliminate or limit the liability of a director for: (1) a breach of a
director's duty of loyalty to the corporation or its shareholders; (2) an act
or omission not in good faith or that involves intentional misconduct or a
knowing violation of the law; (3) a transaction from which a director received
an improper benefit, whether or not the benefit resulted from an action taken
within the scope of the director's office; (4) an act or omission for which the
liability of a director is expressly provided for by statute.
If the Texas Miscellaneous Corporation Laws Act or the Texas
Business Corporation Act ("TBCA") is amended to authorize action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by such statutes, as so amended. Any repeal or modification
of this article shall not adversely affect any right or protection of a
director of the corporation existing at the time of such repeal or
modification.
ARTICLE XI
The vote of shareholders required for approval of (1) any plan
of merger, consolidation, or exchange for which the TBCA requires a shareholder
vote, (2) any disposition of assets for which the TBCA requires a shareholder
vote, (3) any dissolution of the corporation for which the TBCA requires a
shareholder vote, and (4) any amendment of the Articles of Incorporation of the
corporation for which the TBCA requires a shareholder vote, shall be (in lieu
of any greater vote required by the TBCA and together with any additional vote
required by Article XII) the affirmative vote of the holders of a majority of
the outstanding shares entitled to vote thereon, unless any class or series of
shares is entitled to vote as a class thereon, in which event the vote required
shall be the affirmative vote of the holders of a majority of the outstanding
shares within each class or series of shares entitled to vote thereon as a
class and at least a majority of the outstanding shares otherwise entitled to
vote thereon.
ARTICLE XII
(a) In addition to any affirmative vote required by law
or these Articles of Incorporation, and except as otherwise expressly provided
in paragraph (b) of this Article XII:
(i) any merger, consolidation or share exchange
of the corporation or any subsidiary of the corporation with (A) any
Related Person or (B) any other Person (whether or not itself a
Related Person) which is, or after such merger, consolidation or share
exchange would be, an Affiliate of a Related Person; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition by the corporation or any subsidiary to
any Related Person or any Affiliate of any Related Person, or by any
Related Person or any Affiliate of any Related Person to the
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corporation or any subsidiary, of any assets or properties having an
aggregate Fair Market Value of $10,000,000 or more; or
(iii) any issuance or transfer by the corporation
or any subsidiary of the corporation of any securities of the
corporation or any subsidiary of the corporation to any Related Person
or any Affiliate of any Related Person (except (A) pursuant to the
exercise, exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of the corporation or any
subsidiary which securities were acquired by the Related Person prior
to becoming a Related Person, or (B) pursuant to a dividend or
distribution paid or made, or the exercise, exchange or conversion of
securities exercisable for, exchangeable for or convertible into stock
of the corporation or subsidiary which security is distributed, pro
rata to all holders of a class or series of stock of the corporation
subsequent to the time the Related Person became such, and provided in
the case of this clause (B) that there is not any increase of more
than 1% in the Related Person's proportionate share of the stock of
any class or series of the corporation or of the Voting Stock of the
corporation); or
(iv) any dissolution of the corporation
voluntarily caused or proposed by or on behalf of a Related Person or
any Affiliate of any Related Person; or
(v) any reclassification of securities (including
any reverse stock split) or recapitalization of the corporation, or
any merger, consolidation or share exchange of the corporation with
any of its subsidiaries or any other transaction (whether or not with
or into or otherwise involving a Related Person) which has the effect,
either directly or indirectly, of increasing by more than 1% the
proportionate share of the outstanding stock of any class or series,
the securities convertible into stock of any class or series, or all
the outstanding Voting Stock of the corporation or any subsidiary of
the corporation which is directly or indirectly owned by any Related
Person or any Affiliate of any Related Person; or
(vi) any series or combination of transactions
having, directly or indirectly, the same effect as any of the
foregoing; or
(vii) any agreement, contract or other arrangement
providing, directly or indirectly, for any of the foregoing
shall require the affirmative vote of the holders of not less than 80% of the
then outstanding Voting Stock held by shareholders voting together as a single
class. Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be specified, by law,
elsewhere in these Articles of Incorporation or in any agreement with any
national securities exchange or otherwise.
(b) The provisions of paragraph (a) shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law and
any other provision of these Articles of Incorporation, if all of the
conditions specified in either of the following subparagraphs (i) and (ii) are
met:
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(i) the cash, property, securities or other
consideration to be received per share by holders of each and every
outstanding class or series of shares of the corporation in the
Business Combination is, with respect to each such class or series,
either (A) the same in form and amount per share as that paid by the
Related Person in a tender offer in which such Related Person acquired
at least 50% of the outstanding stock of such class or series and which
was consummated not more than one year prior to the date of such
Business Combination or (B) not less in amount (as to cash) or Fair
Market Value as of the date of the determination of the Highest Per
Share Price (as to property, securities or other consideration) than
the Highest Per Share Price applicable to such class or series of
shares; provided that in the event of any Business Combination in which
the corporation survives, any shares retained by the holders thereof
shall constitute consideration other than cash for purposes of this
subparagraph (i); or
(ii) a majority of the Continuing Directors shall
have expressly approved such Business Combination either in advance of
or subsequent to such Related Person's having become a Related Person.
In the case of any Business Combination with a Related Person
to which subparagraph (i) above applies, a majority of the Continuing Directors
shall promptly following the request of a Related Person determine the Highest
Per Share Price for each class or series of stock of the corporation. Such
determination shall be announced prior to the meeting at which holders of
shares vote on the Business Combination. Such determination shall be final,
unless the Related Person becomes the Beneficial Owner of additional shares
after the date of the earlier determination, in which case the Continuing
Directors will make a new determination as to the Highest Per Share Price for
each class or series of shares prior to the consummation of the Business
Combination.
A Related Person shall be deemed to have acquired a share at
the time that such Related Person became the Beneficial Owner thereof. With
respect to shares owned by Affiliates, Associates and other Persons whose
ownership is attributable to a Related Person, if the price paid by such
Related Person for such shares is not determinable by a majority of the
Continuing Directors, the price so paid shall be deemed to be the higher of (i)
the price paid upon the acquisition thereof by the Affiliate, Associate or
other Person or (ii) the Share Price of the shares in question at the time when
the Related Person became the Beneficial Owner thereof.
(c) For purposes of this Article XII:
(i) The term "Affiliate," used to indicate a
relationship to a specified Person, shall mean a Person that directly,
or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified
Person.
(ii) The term "Associate," used to indicate a
relationship with a specified Person, shall mean (A) any corporation,
partnership or other organization (other than the corporation or any
wholly owned subsidiary of the corporation) of which such specified
Person is an officer or partner or is, directly or indirectly, the
Beneficial Owner of 10% or more of any class of equity securities; (B)
any trust or other estate in which such specified
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Person has a beneficial interest of 10% or more or as to which such
specified Person serves as trustee or in a similar fiduciary capacity;
(C) any Person who is a director or officer of such specified Person
or any of its parents or subsidiaries (other than the corporation or
any wholly owned subsidiary of the corporation); and (D) any relative
or spouse of such specified Person or of any of its Associates, or any
relative of any such spouse, who has the same home as such specified
Person or such Associate.
(iii) A Person shall be a "Beneficial Owner" of any
stock (A) which such Person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or (B) which such Person or
any of its Affiliates or Associates has, directly or indirectly, (1)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (2) the
right to vote pursuant to any agreement, arrangement or understanding;
or (C) which is beneficially owned, directly or indirectly, by any
other Person with which such Person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any stock; or
(D) of which such Person would be the Beneficial Owner pursuant to the
terms of Rule 13d-3 of the Securities Exchange Act of 1934 (the
"Exchange Act"), as in effect on September 1, 1991; notwithstanding
the foregoing, no person shall be deemed to be, or to have been, a
Beneficial Owner of any stock of the corporation owned by Mesa Limited
Partnership, a Delaware limited partnership ("MLP"), prior to its
distribution of such stock to its unitholders. Stock shall be deemed
"Beneficially Owned" by the Beneficial Owner or Owners thereof.
(iv) The term "Business Combination" shall mean
any transaction which is referred to in any one or more of clauses (i)
through (vii) of paragraph (a) of this Article XII.
(v) The term "Continuing Director" shall mean,
with respect to a Business Combination with a Related Person, any
director of the corporation who is unaffiliated with the Related
Person and was a director prior to the time that the Related Person
became a Related Person, and any successor of a Continuing Director
who is unaffiliated with the Related Person and is recommended or
nominated to succeed a Continuing Director by a majority of the
Continuing Directors. Without limiting the generality of the
foregoing, a director shall be deemed to be affiliated with a Related
Person if such director (A) is an officer, director, employee or
general partner of such Related Person; (B) is an Affiliate or
Associate of such Related Person; (C) is a relative or spouse of such
Related Person or of any such officer, director, general partner,
Affiliate or Associate; (D) performs services, or is a member,
employee, stockholder or unitholder of any organization which performs
services, for such Related Person or any Affiliate of such Related
Person, or is a relative or spouse of any such Person (other than the
corporation and its subsidiaries); or (E) was nominated for election
as a director by such Related Person.
(vi) The term "Fair Market Value" shall mean, in
the case of securities, the average of the closing sale prices during
the 30-day period immediately preceding the date
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in question of such security on the principal United States securities
exchange registered under the Exchange Act on which such security is
listed (or the composite tape therefor) or, if such securities are not
listed on any such exchange, the average of the closing bid quotations
with respect to such security during the 30-day period preceding the
date in question on the NASDAQ national market system or any similar
system then in use or, if no such quotations are available, the fair
market value on the date in question of such security as determined in
good faith by a majority of the Continuing Directors; and in the case
of property other than cash or securities, the fair market value of
such property on the date in question as determined in good faith by a
majority of the Continuing Directors.
(vii) The term "Highest Per Share Price" shall mean
(A) as to any class or series of stock of which the Related Person
Beneficially Owns 10% or more of the outstanding shares, the highest
price that can be determined to have been paid for any share or shares
of that class or series by such Related Person in a transaction that
either (1) resulted in such Related Person Beneficially Owning 10% or
more thereof or (2) was effected at time when such Related Person
Beneficially Owned more than 10% thereof, (B) as to any class or
series of stock of which the Related Person Beneficially Owns shares,
but not more than 10% of the outstanding shares, the highest price
that can be determined to have been paid at any time by such Related
Person for any share or shares of that class or series that are then
Beneficially Owned by such Related Person or (C) as to any other class
or series of stock, the amount determined by a majority of the
Continuing Directors, on whatever basis they believe is appropriate,
to be the per share price equivalent of the highest price that can be
determined to have been paid at any time by the Related Person for any
other class or series of stock. In determining the Highest Per Share
Price, all purchases by the Related Person shall be taken into account
regardless of whether the shares were purchased before or after the
Related Person became a Related Person and the Highest Per Share Price
will be appropriately adjusted to take into account (W) distributions
paid or payable in stock, (X) subdivisions of outstanding stock, (Y)
combinations of shares of stock into a smaller number of shares and
(Z) similar events. Additionally, for purposes of this subparagraph
(vii), the price of any stock received by a shareholder as a
distribution from MLP in respect of MLP units shall be the price paid
for such MLP units as appropriately adjusted to account for the number
of shares received for each unit in connection with the dissolution of
MLP.
(viii) The term "Person" shall mean any individual,
corporation, association, partnership, joint venture, trust, estate or
other entity or organization.
(ix) The term "Related Person" shall mean any
Person (other than the corporation or any subsidiary and other than
any profit-sharing, employee ownership or other employee benefit plan
of the corporation or any subsidiary or any trustee of or fiduciary
with respect to any such plan when acting in such capacity) who or
which (A) is the Beneficial Owner of more than 20% of the aggregate
voting power of all outstanding stock of the corporation; or (B) is an
Affiliate of the corporation and at any time within the two- year
period immediately prior to the date in question was the Beneficial
Owner of more than 20% of the aggregate voting power of all
outstanding stock of the corporation; or (C) is an assignee of or has
otherwise succeeded to any shares of stock of the corporation which
were
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at any time within the two-year period immediately prior to the date
in question Beneficially Owned by any Related Person, if such
assignment or succession shall have occurred in the course of a
privately negotiated transaction rather than an open market
transaction. For the purposes of determining whether a Person is a
Related Person, the number of shares of any class or series deemed to
outstanding shall include shares of such class or series of which the
Person is deemed the Beneficial Owner, but shall not include any other
shares which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, otherwise.
(x) The term "Voting Stock" shall mean all
outstanding shares of capital stock the corporation entitled to vote
generally in the election of directors, considered for the purpose of
this Article XII as one class. If the corporation has shares of
Voting Stock entitled to more or less than one vote for any such
share, each reference in this Article XII to a proportion or
percentage in voting power of Voting Stock shall be calculated by
reference to the portion or percentage of votes entitled to be cast by
the holders of such shares.
(d) Nothing contained in this Article XII shall be
construed to relieve any Related Person from any fiduciary obligation imposed
by law.
(e) Notwithstanding any other provision of this Articles
of Incorporation (and notwithstanding the fact that a lesser percentage may be
specified by law), the affirmative vote of the holders of not less than 80% of
the then outstanding Voting Stock held by shareholders, voting together as a
single class, shall be required to amend or repeal, or adopt any provisions
inconsistent with, this Article XII.
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STATEMENT OF RESOLUTION ESTABLISHING
SERIES OF SHARES
designated
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
MESA INC.
Pursuant to Article 2.13D of the
Texas Business Corporation Act
Pursuant to the provisions of Article 2.13D of the Texas
Business Corporation Act, the undersigned corporation submits the following
statement for the purpose of establishing and designating a series of shares of
its Preference Stock, without par value, designated "Series A Preference Stock"
and fixing and determining the relative rights and preferences thereof:
1. The name of the corporation is MESA INC. (the
"Corporation").
2. The following resolution, establishing and
designating a series of shares and fixing and determining the relative rights
and preferences thereof, was duly adopted by all necessary action on the part
of the Corporation, consisting of due adoption by the Board of Directors of the
Corporation at a meeting duly held on July 6, 1995:
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporation in accordance with the provisions of
the Amended and Restated Articles of Incorporation, a series of
Preferred Stock, par value $.01 per share, of the Corporation be and
hereby is created, and that the designation and number of shares
thereof and the preferences, limitations and relative rights,
including voting rights of the shares of such series and the
qualifications, limitations and restrictions thereof are as follows:
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
1. Designation and Amount. There shall be a series of Preferred Stock
that shall be designated as "Series A Junior Participating Preferred Stock,"
and the number of shares constituting such series shall be 1,000,000. Such
number of shares may be increased or decreased by resolution of the Board of
Directors; provided, however, that no decrease shall reduce the number of
shares of Series A Junior Participating Preferred Stock to less than the number
of shares then issued and outstanding
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plus the number of shares issuable upon exercise of outstanding rights, options
or warrants or upon conversion of outstanding securities issued by the
Corporation.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking prior and
superior to the shares of Series A Junior Participating Preferred Stock with
respect to dividends, the holders of shares of Series A Junior Participating
Preferred Stock, in preference to the holders of shares of any class or series
of stock of the Corporation ranking junior to the Series A Junior Participating
Preferred Stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share of Series A
Junior Participating Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1 or (b) the Adjustment Number (as
defined below) times the aggregate per share amount of all cash dividends, and
the Adjustment Number times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, par
value $.01 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Junior Participating Preferred Stock. The
"Adjustment Number" shall initially be 100. In the event the Corporation shall
at any time after July 6, 1995 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred Stock as provided
in paragraph (A) above immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $1 per share on the Series A Junior Participating Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next
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preceding the date of issue of such shares of Series A Junior Participating
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Junior Participating Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A
Junior Participating Preferred Stock shall have the following voting rights:
(A) Each share of Series A Junior Participating Preferred
Stock shall entitle the holder thereof to a number of votes equal to the
Adjustment Number on all matters submitted to a vote of the stockholders of the
Corporation.
(B) Except as otherwise provided herein, in the Amended
and Restated Articles of Incorporation or by law, the holders of shares of
Series A Junior Participating Preferred Stock, the holders of shares of any
other class or series entitled to vote with the Common Stock and the holders of
shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C)(i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to six
quarterly dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") that shall extend
until such time when all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly dividend period on all
shares of Series A Junior Participating Preferred Stock then outstanding shall
have been declared and paid or set apart for payment. During each default
period, (1) the number of Directors shall be increased by two, effective as of
the time of election of such Directors as herein provided, and (2) the holders
of Preferred Stock (including holders of the Series A Junior Participating
Preferred Stock) upon which these or like voting rights have been conferred and
are exercisable (the "Voting Preferred Stock") with dividends in arrears in an
amount equal to six quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect such two Directors.
(ii) During any default period, such voting right of the
holders of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to
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subparagraph (iii) of this Section 3(C) or at any annual meeting of
shareholders, and thereafter at annual meetings of shareholders, provided that
such voting right shall not be exercised unless the holders of at least
one-third in number of the shares of Voting Preferred Stock outstanding shall
be present in person or by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the holders of Voting Preferred
Stock of such voting right. At any meeting at which the holders of Voting
Preferred Stock shall exercise such voting right initially during an existing
default period, they shall have the right, voting as a class, to elect
Directors to fill such vacancies, if any, in the Board of Directors as may then
exist up to two Directors or, if such right is exercised at an annual meeting,
to elect two Directors. If the number that may be so elected at any special
meeting does not amount to the required number, the holders of the Voting
Preferred Stock shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of the required
number. After the holders of the Voting Preferred Stock shall have exercised
their right to elect Directors in any default period and during the continuance
of such period, the number of Directors shall not be increased or decreased
except by vote of the holders of Voting Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to or pari passu
with the Series A Junior Participating Preferred Stock.
(iii) Unless the holders of Voting Preferred Stock shall,
during an existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any shareholder or
shareholders owning in the aggregate not less than ten percent of the total
number of shares of Voting Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the holders of Voting
Preferred Stock, which meeting shall thereupon be called by the Chairman of the
Board, the President, a Vice President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which holders of Voting
Preferred Stock are entitled to vote pursuant to this paragraph (C)(iii) shall
be given to each holder of record of Voting Preferred Stock by mailing a copy
of such notice to him at his last address as the same appears on the books of
the Corporation. Such meeting shall be called for a time not earlier than 20
days and not later than 60 days after such order or request or, in default of
the calling of such meeting within 60 days after such order or request, such
meeting may be called on similar notice by any shareholder or shareholders
owning in the aggregate not less than ten percent of the total number of shares
of Voting Preferred Stock outstanding. Notwithstanding the provisions of this
paragraph (C)(iii), no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the next annual meeting
of the shareholders.
(iv) In any default period, after the holders of Voting
Preferred Stock shall have exercised their right to elect Directors voting as a
class, (x) the Directors so elected by the holders of Voting Preferred Stock
shall continue in office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y) any vacancy in
the Board of Directors may (except as provided in paragraph (C)(ii) of this
Section 3) be filled by vote of majority of the remaining Directors theretofore
elected by the holders of the class or classes of stock which elected the
Director whose office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class or classes of
stock shall include Directors elected by such Directors to fill vacancies as
provided in clause (y) of the foregoing sentence.
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(v) Immediately upon the expiration of a default period,
(x) the right of the holders of Voting Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the holders of
Voting Preferred Stock as a class shall terminate and (z) the number of
Directors shall be such number as may be provided for in the Amended and
Restated Articles of Incorporation or By-Laws irrespective of any increase made
pursuant to the provisions of paragraph (C) of this Section 3 (such number
being subject, however, to change thereafter in any manner provided by law or
in the Amended and Restated Articles of Incorporation or By-Laws). Any
vacancies in the Board of Directors effected by the provisions of clauses (y)
and (z) in the preceding sentence may be filled by a majority of the remaining
Directors.
(D) Except as set forth herein, holders of Series A
Junior Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of
Series A Junior Participating Preferred Stock outstanding shall have been paid
in full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred Stock and all
such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such
shares are then entitled; or
(iii) redeem or purchase or otherwise acquire for
consideration any shares of Series A Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with the Series A
Junior Participating Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of Series A Junior Participating
Preferred Stock, or to all such holders and the holders of any such
shares ranking on a parity therewith, upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates
and other relative rights and
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preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph (A)
of this Section 4, purchase or otherwise acquire such shares at such time and
in such manner.
5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to any conditions and
restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon
any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) the Adjustment Number. Following the payment of the full
amount of the Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior Participating Preferred
Stock and Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall, subject to the
prior rights of all other series of Preferred Stock, if any, ranking prior
thereto, receive their ratable and proportionate share of the remaining assets
to be distributed in the ratio of the Adjustment Number to 1 with respect to
such Series A Junior Participating Preferred Stock and Common Stock, on a per
share basis, respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of Preferred
Stock, if any, that rank on a parity with the Series A Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
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C. Neither the merger or consolidation of the
Corporation into or with another corporation nor the consolidation, merger or
consolidation of any other corporation into or with the Corporation shall be
deemed to be a liquidation, dissolution or winding up of the Corporation within
the meaning of this Section 6, but the sale, lease or conveyance of all or
substantially all the Corporation's assets shall be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this Section
6.
7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination, share exchange or
other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Junior Participating Preferred Stock shall
at the same time be similarly exchanged or changed in an amount per share equal
to the Adjustment Number times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged.
8. Redemption. (A) The Corporation, at its option, may
redeem shares of the Series A Junior Participating Preferred Stock in whole at
any time and in part from time to time, at a redemption price equal to the
Adjustment Number times the current per share market price (as such term is
hereinafter defined) of the Common Stock on the date of the mailing of the
notice of redemption, together with unpaid accumulated dividends to the date of
such redemption. The "current per share market price" on any date shall be
deemed to be the average of the closing price per share of such Common Stock
for the ten consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, that in the event that the
current per share market price of the Common Stock is determined during a
period following the announcement of (A) a dividend or distribution on the
Common Stock other than a regular quarterly cash dividend or (B) any
subdivision, combination or reclassification of such Common Stock and the
ex-dividend date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, shall not have occurred prior to
the commencement of such ten Trading Day period, then, and in each such case,
the current per share market price shall be properly adjusted to take into
account ex-dividend trading. The closing price for each day shall be the last
sales price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange, or, if
the Common Stock is not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading, or, if the Common Stock is not listed
or admitted to trading on any national securities exchange but sales price
information is reported for such security, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other self-regulatory organization or registered securities information
processor (as such terms are used under the Securities Exchange Act of 1934, as
amended) that then reports information concerning the Common Stock, or, if
sales price information is not so reported, the average of the high bid and low
asked prices in the over-the-counter market on such day, as reported by NASDAQ
or such other entity, or, if on any
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such date the Common Stock is not quoted by any such entity, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in the Common Stock selected by the Board of Directors of the
Corporation. If on any such date no such market maker is making a market in
the Common Stock, the fair value of the Common Stock on such date as determined
in good faith by the Board of Directors of the Corporation shall be used. The
term "Trading Day" shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business, or, if the Common Stock is not listed or admitted
to trading on any national securities exchange but is quoted by NASDAQ, a day
on which NASDAQ reports trades, or, if the Common Stock is not so quoted, a
Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions in
the State of New York are not authorized or obligated by law or executive order
to close.
(B) In the event that fewer than all the outstanding
shares of the Series A Junior Participating Preferred Stock are to be redeemed,
the number of shares to be redeemed shall be determined by the Board of
Directors and the shares to be redeemed shall be determined by lot or pro rata
as may be determined by the Board of Directors or by any other method that may
be determined by the Board of Directors in its sole discretion to be equitable.
(C) Notice of any such redemption shall be given by
mailing to the holders of the shares of Series A Junior Participating Preferred
Stock to be redeemed a notice of such redemption, first class postage prepaid,
not later than the fifteenth day and not earlier than the sixtieth day before
the date fixed for redemption, at their last address as the same shall appear
upon the books of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such
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 will cease to accrue on the close of business on such redemption date.
Any notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the shareholder received such
notice, and failure duly to give such notice by mail, or any defect in such
notice, to any holder of Series A Junior Participating Preferred Stock shall
not affect the validity of the proceedings for the redemption of any other
shares of Series A Junior Participating Preferred Stock that are to be
redeemed. On or after the date fixed for redemption as stated in such notice,
each holder of the shares called for redemption shall surrender the certificate
evidencing such shares to the Corporation at the place designated in such
notice and shall thereupon be entitled to receive payment of the redemption
price. If fewer than all the shares represented by any such surrendered
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares.
(D) The shares of Series A Junior Participating Preferred
Stock shall not be subject to the operation of any purchase, retirement or
sinking fund.
9. Ranking. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the
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distribution of assets, unless the terms of any such series shall provide
otherwise, and shall rank senior to the Common Stock as to such matters.
10. Amendment. At any time that any shares of Series A
Junior Participating Preferred Stock are outstanding, the Amended and Restated
Articles of Incorporation of the Corporation shall not be amended in any manner
which would materially alter or change the powers, preferences or special
rights of the Series A Junior Participating Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior Participating Preferred
Stock, voting separately as a class.
11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share that shall entitle the
holder, in proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Junior Participating Preferred
Stock.
IN WITNESS WHEREOF, MESA Inc. has caused this Statement to be
executed on its behalf by the undersigned officer this 6th day of July, 1995.
MESA INC.
By: /s/ STEPHEN K. GARDNER
--------------------------------
Stephen K. Gardner
Vice President and
Chief Financial Officer
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