-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CP59E5/HVRUpcxz2meZ5Kna1OZLvGCEAj21oGz/2uyqwUeMT7SdTUx16XEIpm29X DUYi/TgWo00osiE/7uRxag== 0000950129-99-001834.txt : 19990430 0000950129-99-001834.hdr.sgml : 19990430 ACCESSION NUMBER: 0000950129-99-001834 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19990426 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990429 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BARGO ENERGY CO CENTRAL INDEX KEY: 0000051072 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 870239185 STATE OF INCORPORATION: UT FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-08609 FILM NUMBER: 99604235 BUSINESS ADDRESS: STREET 1: 700 LOUISIANA, SUITE 3700 CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: 214-350-7602 MAIL ADDRESS: STREET 1: 700 LOUISIANA SUITE 3700 CITY: HOUSTON STATE: TX ZIP: 77002 FORMER COMPANY: FORMER CONFORMED NAME: FUTURE PETROLEUM CORP/UT/ DATE OF NAME CHANGE: 19940401 FORMER COMPANY: FORMER CONFORMED NAME: INTERMOUNTAIN EXPLORATION CO DATE OF NAME CHANGE: 19920703 8-K 1 BARGO ENERGY COMPANY - DATED 04/26/99 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 April 26, 1999 Date of Report (Date of earliest event reported) BARGO ENERGY COMPANY (Exact name of small business issuer as specified in its charter) Texas 0-8609 87-0239185 (State or other jurisdiction of (Commission file number) (I.R.S. Employer incorporation or organization) Identification No.) 700 Louisiana, Suite 3700 Houston, Texas 77002 (Address of principal executive offices, including zip code) (713) 236-9792 (Issuer's telephone number, including area code) Future Petroleum Corporation 2351 West Northwest Highway, Suite 2130 Dallas, Texas 75220 (Former name and former address, if changed since last report) 2 ITEM 5. OTHER EVENTS On April 26, 1999 (the "Effective Date"), Bargo Energy Company, a Texas corporation ("Bargo"), merged with Future Petroleum Corporation, a Utah corporation ("Future"). Bargo was incorporated under the name FPT Corporation on January 26, 1999 as a wholly owned subsidiary of Future solely for the purpose of reincorporating Future in Texas. The reincorporation occurred pursuant to a merger agreement dated April 6, 1999 entered into between Future and Bargo ("Merger Agreement"). In accordance with the terms of the Merger Agreement, Future merged into Bargo, with Bargo as the surviving corporation. On the Effective Date, each of the 22,320,066 shares of common stock of Future outstanding were converted into one share of Bargo's common stock and each of the 100,000 shares of preferred stock of Future outstanding were converted into one share of Bargo preferred stock. The company's symbol on the OTC Bulletin Board will be changed from FUPT to BARG to reflect the change in the company's name from Future Petroleum Corporation to Bargo Energy Company. The reincorporation merger increased the company's authorized capital stock from 30,200,000 shares to 125 million shares. The articles of incorporation of Bargo authorize 125 million shares of capital stock, of which 120 million shares are common stock and 5 million shares are preferred stock. Future's articles of incorporation authorized 30 million shares of common stock and 200,000 shares of preferred stock. The common stock of Future was registered with the Securities and Exchange Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934 ("Exchange Act"). Pursuant to Rule 12g-3(a) under the Exchange Act, the common stock of Bargo is deemed to be registered under Section 12(g) of the Exchange Act. This current report constitutes Bargo's assumption of Future's filing obligations under Section 13 of the Exchange Act. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (a) Financial Statements of Business Acquired. Not applicable to this filing. (b) Pro forma Financial Information. Not applicable to this filing. 3 (c) Exhibits The following exhibits are included as part of this report:
EXHIBIT NUMBER TITLE OF DOCUMENT - ------------ --------------------------------------------------------------- 2.1 Agreement and Plan of Merger, dated as of April 6, 1999 between Bargo and Future 3.1 Articles of Incorporation of Bargo Energy Company 3.2 Bylaws of Bargo Energy Company 4.1 Certificate of Designation of Convertible Preferred Stock, Series A 99.1 Press Release
4 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Bargo Energy Company (Registrant) /s/ Tim J. Goff -------------------------------------- Dated: April 26, 1999 By: Tim J. Goff, President 5 EXHIBIT INDEX
EXHIBIT NUMBER TITLE OF DOCUMENT - ------------ --------------------------------------------------------------- 2.1 Agreement and Plan of Merger, dated as of April 6, 1999 between Bargo and Future 3.1 Articles of Incorporation of Bargo Energy Company 3.2 Bylaws of Bargo Energy Company 4.1 Certificate of Designation of Convertible Preferred Stock, Series A 99.1 Press Release
EX-2.1 2 AGREEMENT & PLAN OF MERGER, DATED 04/06/99 1 EXHIBIT 2.1 =============================================================================== AGREEMENT AND PLAN OF MERGER between Future Petroleum Corporation (a Utah corporation), and FPT Corporation (a Texas corporation), April 6, 1999 =============================================================================== 2 AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), is made and entered into as of this 6th day of April, 1999, between Future Petroleum Corporation, a Utah corporation (the "Company") and FPT Corporation, a Texas corporation and a wholly owned subsidiary of the Company ("Merger-Sub"). RECITALS WHEREAS, the respective Boards of Directors of the Company and Merger-Sub have determined that, subject to the terms and conditions hereinafter set forth, it is advisable and to their respective stockholders' mutual advantage and benefit to adopt a plan, whereby the Company will merge with and into Merger-Sub (the "Merger") pursuant to this Agreement; NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants, agreements, and conditions herein contained, the parties hereto agree as follows: ARTICLE I. THE MERGER; CLOSING; EFFECTIVE TIME Section 1.1 THE MERGER. Subject to the terms and conditions of this Agreement, at the Effective Time (as defined in Section 1.3), the Company shall be merged with and into Merger-Sub and the separate corporate existence of the Company shall thereupon cease. Merger-Sub shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the "Surviving Corporation") and shall continue to be governed by the laws of the State of Texas, and the separate corporate existence of Merger-Sub, with all of its rights, privileges, immunities, and franchises shall continue unaffected by the Merger. The Merger shall have the effects specified in the Utah Revised Business Corporations Act ("Utah Act") and in the Texas Business Corporations Act ("TBCA") with respect to the Company and Merger-Sub. Section 1.2 EFFECTIVE TIME. The Company and Merger-Sub will cause articles of merger ("Articles of Merger"), attached hereto as Exhibit A, to be signed and then filed with the Utah Division of Corporations and Commercial Code and the Secretary of State of Texas as provided in the Utah Act and TBCA. The Merger shall become effective upon the later of the filing of Articles of Merger with Utah Division of Corporations and Commercial Code pursuant to Section 16-10a-1105 of the Utah Act and with the Secretary of State of Texas pursuant to Article 5.04 of the TBCA or at such other time as is specified in the Articles of Merger, and such time is hereinafter referred to as the "Effective Time." Section 1.3 SUBSEQUENT ACTIONS. Upon the Merger becoming effective, all the property, rights, privileges, franchises, patents, trademarks, licenses, registrations and other assets of every kind and description of the Company shall be transferred to, vested in and devolve upon the Surviving Corporation without further act or deed and all property, rights and every other interest of the Surviving Corporation and the Company shall be as effectively the property of the Surviving Corporation as they were of the Surviving Corporation and the Company, respectively. If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any deeds, bills of sale, assignments, assurances, or any other actions or things are necessary or desirable to vest, perfect, or confirm of record or otherwise in the Surviving Corporation its right, title, or interest in, to, or under any of the rights, properties, or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of or in connection with the 3 Merger, or otherwise to carry out this Agreement, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the Company or otherwise, all such deeds, bills of sale, assignments, and assurances, and to take and do, in the name and on behalf of the Company or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect, or confirm any and all right, title, and interest in, to, and under such rights, properties, or assets in the Surviving Corporation or otherwise to carry out this Agreement. ARTICLE II. ARTICLES OF INCORPORATION AND BY-LAWS OF THE SURVIVING CORPORATION Section 2.1 THE ARTICLES OF INCORPORATION. (a) Merger-Sub's Articles of Incorporation. The Articles of Incorporation of Merger-Sub, attached hereto as Exhibit B, in effect at the Effective Time shall be the Articles of Incorporation of the Surviving Corporation, until duly amended in accordance with the terms thereof and the TBCA. (b) Amendments to Articles of Incorporation of Merger-Sub. The Articles of Merger shall amend Article One of the Articles of Incorporation of Merger-Sub to change Merger-Sub's name to "Bargo Energy Company." Section 2.2 THE BY-LAWS. The By-Laws of Merger-Sub, attached hereto as Exhibit C, in effect at the Effective Time shall be the By-Laws of the Surviving Corporation, until duly amended in accordance with the terms thereof and the TBCA. ARTICLE III. OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION Section 3.1 OFFICERS AND DIRECTORS. The directors of Merger-Sub at the Effective Time, from and after the Effective Time, shall be the directors of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation, or removal in accordance with the Surviving Corporation's Articles of Incorporation and By-Laws. The officers of Merger-Sub at the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation until their successors have been duly appointed or until their earlier death, resignation or removal in accordance with the Surviving Corporation's Bylaws. ARTICLE IV. CONVERSION OR CANCELLATION OF SHARES IN THE MERGER Section 4.1 CONVERSION OR CANCELLATION OF SHARES. (a) Conversion of Shares of the Company. At the Effective Time, each share of common stock, $.01 par value, of the Company ("Company Common Stock") issued and outstanding immediately prior to the Effective Time other than shares as to which appraisal rights shall have been perfected and not withdrawn or otherwise forfeited under the Utah Act, by virtue of the Merger and without any action on the part of the holder thereof, shall be converted into the right to receive one share of common stock, $.01 par value per share, of Merger-Sub ("New Common Stock") and each share of preferred stock of the Company ("Company Preferred Stock") issued and outstanding immediately prior to the Effective Time (the Company Common Stock and Company Preferred Stock issued and outstanding immediately prior to the Effective Time are herein referred to, as the context requires, as the "Canceled Shares"), other than shares as to which appraisal rights 2 4 shall have been perfected and not withdrawn or otherwise forfeited under the Utah Act, by virtue of the Merger and without any action on the part of the holder thereof, shall be converted into the right to receive one share of preferred stock, $.01 par value per share, of Merger-Sub ("New Preferred Stock") (the New Common Stock and New Preferred Stock set forth in this subsection are herein referred to, as the context requires, as the "Merger Consideration"). All such Canceled Shares, by virtue of the Merger and without any action on the part of the holders thereof, shall be canceled and cease to be issued and outstanding. All certificates of such Canceled Shares, by virtue of the Merger and without any action on the part of the holders thereof, shall be deemed to represent a number of shares of either New Common Stock or New Preferred Stock in an amount equal to the number of shares of Company Common Stock or Company Preferred Stock represented by the certificate immediately prior to the Effective Time, and each holder of a certificate representing any such Canceled Shares shall thereafter have all of the rights and privileges of a holder of New Common Stock or New Preferred Stock and cease to have any rights with respect to such Canceled Shares. (b) Cancellation of Shares of Merger-Sub. At the Effective time, each share of common stock of Merger-Sub issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be canceled and case to be issued and outstanding. Section 4.2 TRANSFER OF SHARES AFTER THE EFFECTIVE TIME. Transfers of Canceled Shares shall be made on the stock transfer books of the Surviving Corporation at or after the Effective Time as if such certificates represented shares of New Common Stock or New Preferred Stock. However, upon presenting a certificate representing Canceled Shares to Merger-Sub's transfer agent, such certificate shall be canceled and a new certificate representing the number of shares of New Common Stock or New Preferred Stock previously represented by the certificate for the Canceled Shares shall be issued. Section 4.3 DISSENTING STOCKHOLDERS. Each share of Company Common Stock or Company Preferred Stock with respect to which the holder thereof is entitled to an appraisal pursuant to Part 13 of the Utah Act ("Dissenting Shares") shall be converted into the right to receive such consideration as may be determined to be due to such holder pursuant to Sections 16-10a-1325 and 16-10a-1330 of the Utah Act unless such holder shall have effectively withdrawn or forfeited such right to appraisal, at which time such Company Common Stock or Company Preferred Stock shall be converted into and represent a right to receive the Merger Consideration in respect thereof in accordance with Section 4.1 hereof. ARTICLE V. CONDITIONS TO THE CLOSING Section 5.1 STOCKHOLDER APPROVAL. The consummation of the Merger is subject to the approval, at or prior to the Effective Time, of the holders of at least a majority of the outstanding voting power of the Company and the sole stockholder of Merger-Sub in accordance with applicable law and the governing documents of the Company and Merger-Sub. ARTICLE VI. TERMINATION Section 6.1 TERMINATION. Notwithstanding anything herein or elsewhere to the contrary, this Agreement may be terminated by the Company at any time prior to the Effective Time, regardless of whether this Agreement has been approved by the stockholders of the Company. 3 5 ARTICLE VII. MISCELLANEOUS AND GENERAL Section 7.1 HEADINGS. The Section headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Section 7.2 ENTIRE AGREEMENT. This Agreement (including exhibits hereto) embodies the entire agreement and understanding of the parties with respect to the transactions contemplated hereby and supersedes all prior written or oral commitments, arrangements or understandings with respect thereto. There are no restrictions, agreements, promises, warranties, covenants or undertakings with respect to the transactions contemplated hereby other than those expressly set forth herein or therein. Section 7.3 COUNTERPARTS. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original. Section 7.4 SEVERABILITY. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, each party waives any provisions of law which renders any provision of this Agreement invalid, illegal or unenforceable in any respect. Section 7.5 CONSTRUCTION. Whenever the context requires, the gender of all words used herein shall include the masculine, feminine and neuter, and the number of all words shall include the singular and plural. Section 7.6 REFERENCES. Unless otherwise specified, references in this Agreement to "Sections", "Subsections" or Articles" refer to the sections, subsections or articles in this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. FPT CORPORATION, a Texas corporation By: /s/ Tim J. Goff ------------------------------- Name: Tim J. Goff Title: President FUTURE PETROLEUM CORPORATION, a Utah corporation By: /s/ Tim J. Goff ------------------------------- Name: Tim J. Goff Title: President 4 6 Exhibit A-1 ARTICLES OF MERGER OF FUTURE PETROLEUM CORPORATION WITH AND INTO FPT CORPORATION Pursuant to the provisions of Article 5.04 of the Texas Business Corporation Act, the undersigned corporations adopt the following Articles of Merger for the purpose of merging Future Petroleum Corporation into FPT Corporation and certify as follows: 1. The name and state of incorporation of each corporation that is a party to the merger is:
NAME STATE Future Petroleum Corporation Utah FPT Corporation Texas
2. The surviving corporation of the merger is FPT Corporation. 3. A Plan of Merger has been approved by the directors and shareholders of each such corporation. 4. Article One of the Articles of Incorporation of the surviving corporation shall be amended to change the name of the surviving corporation to Bargo Energy Company as follows: "The name of the Corporation is Bargo Energy Company." 5. An executed Plan of Merger is on file at the principal place of business of the surviving corporation, which place of business is located at 700 Louisiana, Suite 3700, Houston, Texas 77002. 6. A copy of the Plan of Merger will be furnished by the surviving corporation on written request and without cost to any shareholder of each corporation that is a party to the merger. 7. As to FPT Corporation, the Texas corporation, the total number of shares outstanding, voted for and against the Plan of Merger is as set forth below. There were no classes of shares entitled to vote thereon separately as a class.
TOTAL TOTAL TOTAL VOTED NAME OF CORPORATION SHARES VOTED FOR AGAINST FPT Corporation 1 1 0
8. As to Future Petroleum Corporation, the Utah corporation, the plan of merger was duly authorized and approved by all action required by the laws of the State of Utah, the state of incorporation, and by its constituent documents. The total 7 number of shares outstanding, voted for and against the Plan of Merger is as set forth below. There were no classes of shares entitled to vote thereon separately as a class.
TOTAL TOTAL TOTAL VOTED NAME OF CORPORATION SHARES VOTED FOR AGAINST Future Petroleum Corporation 48,320,066 45,565,562 0
9. The surviving corporation will be responsible for the payment of all fees and franchise taxes and will be obligated to pay such fees and franchise taxes if the same are not timely paid. 10. The merger will become effective upon the filing of these Articles of Merger. Date: April 26, 1999 FUTURE PETROLEUM CORPORATION By: /s/ Tim J. Goff ------------------------------- Name: Tim J. Goff ------------------------- Title: President ------------------------- FPT CORPORATION By: /s/ Tim J. Goff ------------------------------- Name: Tim J. Goff ------------------------- Title: President ------------------------- -2- 8 Exhibit A-2 ARTICLES OF MERGER OF FUTURE PETROLEUM CORPORATION WITH AND INTO FPT CORPORATION Pursuant to the provisions of Section 16-10a-1107 of the Utah Revised Business Corporation Act, the undersigned corporations adopt the following Articles of Merger for the purpose of merging Future Petroleum Corporation into FPT Corporation and certify as follows: 1. The name and state of incorporation of each corporation that is a party to the merger is: NAME STATE Future Petroleum Corporation Utah FPT Corporation Texas 2. The surviving corporation of the merger is FPT Corporation. 3. A Plan of Merger, attached hereto as Exhibit A, has been approved by the directors and shareholders of each such corporation. 4. The principal place of business of the surviving corporation is located at 700 Louisiana, Suite 3700, Houston, Texas 77002. 5. As to FPT Corporation, the Texas corporation, the merger is permitted by and the Plan of Merger was duly authorized and approved by all action required by the laws of the State of Texas, the state of incorporation, and by its constituent documents. The total number of shares outstanding and entitled to vote, voted for and against the Plan of Merger is as set forth below. There were no classes of shares entitled to vote thereon separately as a class.
TOTAL TOTAL TOTAL VOTED NAME OF CORPORATION SHARES VOTED FOR AGAINST FPT Corporation 1 1 0
6. As to Future Petroleum Corporation, the Utah corporation, the total number of shares outstanding and entitled to vote, voted for and against the Plan of Merger is as set forth below. There were no voting groups entitled to vote thereon separately as a voting group.
TOTAL TOTAL TOTAL VOTED NAME OF CORPORATION SHARES VOTED FOR AGAINST Future Petroleum Corporation 48,320,066 45,565,562 0
9 7. The merger will become effective upon the filing of these Articles of Merger. Date: April 26, 1999 FUTURE PETROLEUM CORPORATION By: /s/ Tim J. Goff ----------------------------- Name: Tim J. Goff ----------------------- Title: President ----------------------- FPT CORPORATION By: /s/ Tim J. Goff ----------------------------- Name: Tim J. Goff ----------------------- Title: President ----------------------- EX-3.1 3 ARTICLES OF INCORPORATION OF BARGO ENERGY CO. 1 EXHIBIT 3.1 ARTICLES OF INCORPORATION OF FPT CORPORATION The undersigned, natural person of the age of eighteen years or more, acting as incorporator of a corporation (the "Corporation") under the Texas Business Corporation Act (the "Act"), hereby adopts the following Articles of Incorporation for the Corporation. ARTICLE ONE Name The name of the Corporation is FPT Corporation. ARTICLE TWO Duration The period of the Corporation's duration is perpetual. ARTICLE THREE Purpose The purpose for which the Corporation is organized is to engage in the transaction of any lawful business for which a corporation may be incorporated under the Act. ARTICLE FOUR Authorized Shares Section 1. The aggregate number of shares which the Corporation will have authority to issue is 125,000,000 of which 120,000,000 will be shares of common stock, par value $0.01 per share ("Common Stock"), and 5,000,000 will be shares of preferred stock, par value $0.01 per share ("Preferred Stock"). Section 2. The board of directors shall have authority to establish series of Preferred Stock. Shares of Preferred Stock may be issued from time to time in one or more series, each of which is to have a distinctive serial designation as determined in the resolution or resolutions of the board of directors providing for the issuance of such Preferred Stock from time to time. 2 Section 3. Each series of Preferred Stock: (a) may have such number of shares; (b) may have such voting powers, full or limited, or may be without voting powers; (c) may be subject to redemption at such time or times and at such price; (d) may be entitled to receive dividends (which may be cumulative or noncumulative) at such rate or rates, on such conditions, from such date or dates, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or series of stock; (e) may have such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation; (f) may be made convertible into, or exchangeable for, shares of any other class or classes, or of any other series of the same or any other class or classes, of stock of the Corporation at such price or prices or at such rates of exchange, and with such adjustments; (g) may be entitled to the benefit of a sinking fund or purchase fund to be applied to the purchase or redemption of shares of such series in such amount or amounts; (h) may be entitled to the benefit of conditions and restrictions upon the creation of indebtedness of the Corporation or any subsidiary, upon the issuance of any additional stock (including additional shares of such series or of any other series) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition of any class of stock by the Corporation; and (i) may have such other relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof; as in such instance is stated in the resolution or resolutions of the board of directors providing for the issuance of such Preferred Stock. Except where otherwise set forth in such resolution or resolutions, the number of shares comprising such series may be increased or decreased (but not below the number of shares then outstanding) from time to time by like action of the board of directors. Section 4. Shares of any series of Preferred Stock which have been redeemed (whether through the operation of a sinking fund or otherwise) or purchased by the Corporation, or which, if convertible or exchangeable, have been converted into or exchanged for shares of stock of any other class or classes will have the status of authorized and unissued shares of Preferred Stock and may be reissued as a part of the series of which they were originally a part or may be reclassified and reissued as part of a new series of Preferred Stock created by resolution or resolutions of the board of directors or as part of any other series of Preferred Stock, all subject to the conditions or restrictions on issuance set forth in the resolution or resolutions adopted by the board of -2- 3 directors providing for the issuance of any series of Preferred Stock and to any filing required by law. Section 5. (a) Except as otherwise provided by law or by the resolutions of the board of directors providing for the issuance of any series of Preferred Stock, Common Stock will have the exclusive right to vote for the election of directors and for all other purposes. Each holder of Common Stock will be entitled to one vote for each share held. The right of cumulative voting is hereby specifically denied. (b) Except as otherwise provided by law or by the resolutions of the board of directors providing for the issuance of any series of Preferred Stock, the right of class voting is denied. (c) Subject to all of the rights of Preferred Stock or any series thereof, the holders of Common Stock will be entitled to receive, when, as and if declared by the board of directors, out of funds legally available therefor, dividends payable in cash, in stock or otherwise. (d) Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, and after the holders of Preferred Stock of each series have been paid in full the amounts to which they respectively are entitled or a sum sufficient for such payment in full has been set aside, the remaining net assets of the Corporation will be distributed pro rata to the holders of Common Stock in accordance with their respective rights and interests to the exclusion of the holders of Preferred Stock. ARTICLE FIVE Restriction on Commencement of Business The Corporation will not commence business until it has received for the issuance of its shares consideration of the value of a stated sum which will be at least One Thousand Dollars ($1,000.00), consisting of money, labor done or property actually received. ARTICLE SIX Registered Office and Registered Agent The street address of the initial registered office of the Corporation is: 700 Louisiana, Suite 3700 Houston, Texas 77002 The name of the initial registered agent of the Corporation at such address is: Mary Elizabeth Vanderhider -3- 4 ARTICLE SEVEN Board of Directors Section 1. Initial Board of Directors. The initial Board of Directors will consist of seven members. The Board of Directors will be divided into three classes, as nearly as equal in number as possible. The entire board of directors shall be elected at the 1999 annual meeting of shareholders, with the term of office of the first class to expire at the 2000 annual meeting of shareholders, the term of the second class to expire at the 2001 annual meeting of shareholders, and the term of the third class to expire at the 2002 annual meeting of shareholders, and with the members of each class to hold office until their successors have been elected and qualified. At each annual meeting of shareholders following such initial classification and election at the 1999 annual meeting of shareholders, directors elected to succeed those directors whose terms expire shall hold office until the third succeeding annual meeting of shareholders after their election and until their successor shall have been duly elected and qualified. The names and addresses of the persons who will serve as directors of the Corporation until the first annual meeting of shareholders, or until their successors are elected and qualified, are:
Name Address ---- ------- Class I Mary Elizabeth Vanderhider 700 Louisiana, Suite 3700 Houston, Texas 77002 Kimberly G. Seekely 700 Louisiana, Suite 3700 Houston, Texas 77002 Class II Thomas Barrow Post Office Box 2588 Longview, Texas 75606 D. Martin Phillips 1100 Louisiana, Suite 3150 Houston, Texas 77002 Class III Tim J. Goff 700 Louisiana, Suite 3700 Houston, Texas 77002 B. Carl Price 700 Louisiana, Suite 3700 Houston, Texas 77002 Gary R. Petersen 1100 Louisiana, Suite 3150 Houston, Texas 77002
Section 2. Number and Qualification. The number and qualifications of directors constituting the Board of Directors of the Corporation will be fixed or determined in the manner provided in the Bylaws of the Corporation. The number of directors may be -4- 5 increased or decreased from time to time in the manner set forth in the Bylaws of the Corporation. ARTICLE EIGHT Provisions for Regulation of the Internal Affairs of the Corporation Provisions for the regulation of the internal affairs of the Corporation will include the following, but such enumeration is not in limitation of the power of the shareholders or the Board of Directors to formulate in the Bylaws, by resolution, or any other proper manner any other lawful provision not inconsistent with law or these articles: Section 1. Voting. Except as stated in the resolution or resolutions of the board of directors establishing any series of Preferred Stock, each outstanding share, regardless of class, will be entitled to one vote on each matter submitted to a vote of shareholders. At each election of directors every shareholder entitled to vote at such election will be entitled to vote, in person or by proxy, the number of shares owned by him for each director for whose election he has a right to vote. The right of shareholders to cumulate votes in the election of directors is expressly denied. Section 2. Bylaws. The Board of Directors will adopt the initial Bylaws, and from time to time may alter, amend or repeal the Bylaws or adopt new Bylaws; but the shareholders from time to time may alter, amend or repeal any Bylaws adopted by the Board of Directors or may adopt new Bylaws. Section 3. Denial of Preemptive Rights. The shareholders of the Corporation will not have the preemptive right to acquire additional, unissued or treasury shares of the Corporation, or securities of the Corporation convertible into or carrying a right to subscribe to or acquire shares. Section 4. Voting Requirements for Certain Corporation Actions. With respect to any action which may be taken by the shareholders where the Act requires greater than a majority vote, such action shall require only the concurrence of a majority of the shares entitled to vote. Section 5. Consents in Lieu of Meetings. Any action required by the Act to be taken or which may be taken at any annual or special meeting of shareholders may be taken without a meeting, without prior notice and without a vote, if a consent (or consents) in writing, setting forth the action to be taken, is signed by the holders or holder of shares having not less than the minimum number of votes that would be necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted. In order to be effective, such consent or consents shall comply with all requirements of the Act. Section 6. Limitation of Liability of Directors. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for an act or omission in such director's capacity as a director except for (i) a breach of the director's duty of loyalty to the Corporation or its shareholders, (ii) an act or omission not in good faith that constitutes a breach of duty to the Corporation or an act or omission involving -5- 6 intentional misconduct or a knowing violation of the law, (iii) a transaction from which the director received an improper benefit (whether or not the benefit resulted from an action taken within the scope of the director's office), or (iv) an act or omission for which the liability of the director is expressly provided by applicable statute. ARTICLE NINE Business Combination Law The Corporation elects not to be governed by the Business Combination Law, Part 13 of the Act, or any successor statute of like tenor. ARTICLE TEN Incorporator The name and the address of the incorporator of the Corporation is:
Name Address ---- ------- Daniel Lloyd Butler & Binion, L.L.P. 1000 Louisiana, Suite 1600 Houston, Texas 77002
In order to evidence the foregoing, I have signed these Articles of Incorporation on this 26th day of January, 1999. /s/ Daniel Lloyd --------------------------------- Daniel Lloyd -6- EX-3.2 4 BYLAWS OF BARGO ENERGY COMPANY 1 EXHIBIT 3.2 BYLAWS OF FPT CORPORATION (the "Company") ARTICLE I. Offices Section 1.1 Offices. The principal business office of the Company shall be in Houston, Texas. The Company may have such other business offices within or without the State of Texas as the board of directors may from time to time establish. ARTICLE II Capital Stock Section 2.1 Certificate Representing Shares. Shares of the capital stock of the Company shall be represented by certificates in such form or forms as the board of directors may approve, provided that such form or forms shall comply with all applicable requirements of law or of the articles of incorporation. Such certificates shall be signed by the president or a vice president, and by the secretary or an assistant secretary, of the Company and may be sealed with the seal of the Company or imprinted or otherwise marked with a facsimile of such seal. The signature of any or all of the foregoing officers of the Company may be represented by a printed facsimile thereof. If any officer whose signature, or a facsimile thereof, shall have been set upon any certificate shall cease, prior to the issuance of such certificate, to occupy the position in right of which his signature, or facsimile thereof, was so set upon such certificate, the Company may nevertheless adopt and issue such certificate with the same effect as if such officer occupied such position as of such date of issuance; and issuance and delivery of such certificate by the Company shall constitute adoption thereof by the Company. The certificates shall be consecutively numbered, and as they are issued, a record of such issuance shall be entered in the books of the Company. Section 2.2 Stock Certificate Book and Shareholders of Record. The secretary of the Company shall maintain, among other records, a stock certificate book, the stubs which shall set forth the names and addresses of the holders of all issued shares of the Company, the number of shares held by each, the number of certificates representing such shares, the date of issue of such certificates, and whether or not such shares originate from original issue or from transfer. The names and addresses of shareholders as they appear on the stock certificate book shall be the official list of shareholders of record of the Company for all purposes. The Company shall be entitled to treat the holder of record of any shares as the owner thereof for all purposes, and shall not be bound to recognize any equitable or other claim to, or interest in, such shares or any rights deriving from such shares on the part of any other person, including, but without limitation, a purchaser, assignee, or transferee, unless and until such other person becomes the holder of record of such shares, whether or not the Company shall have either actual or constructive notice of the interest of such other person. -1- 2 Section 2.3 Shareholder's Change of Name or Address. Each shareholder shall promptly notify the secretary of the Company, at its principal business office, by written notice sent by certified mail, return receipt requested, of any change in name or address of the shareholder from that as it appears upon the official list of shareholders of record of the Company. The secretary of the Company shall then enter such changes into all affected Company records, including, but not limited to, the official list of shareholders of record. Section 2.4 Transfer of Stock. The shares represented by any certificate of the Company are transferable only on the books of the Company by the holder of record thereof or by his duly authorized attorney or legal representative upon surrender of the certificate for such shares, properly endorsed or assigned. The board of directors may make such rules and regulations concerning the issue, transfer, registration and replacement of certificates as they deem desirable or necessary. Section 2.5 Transfer Agent and Registrar. The board of directors may appoint one or more transfer agents or registrars of the shares, or both, and may require all share certificates to bear the signature of a transfer agent or registrar, or both. Section 2.6 Lost, Stolen or Destroyed Certificates. The Company may issue a new certificate for shares of stock in the place of any certificate theretofore issued and alleged to have been lost, stolen or destroyed, but the board of directors may require the owner of such lost, stolen or destroyed certificate, or his legal representative, to furnish an affidavit as to such loss, theft, or destruction and to give a bond in such form and substance, and with such surety or sureties, with fixed or open penalty, as the board may direct, in order to indemnify the Company and its transfer agents and registrars, if any, against any claim that may be made on account of the alleged loss, theft or destruction of such certificate. Section 2.7 Fractional Shares. Only whole shares of the stock of the Company shall be issued. In case of any transaction by reason of which a fractional share might otherwise be issued, the directors, or the officers in the exercise of powers delegated by the directors, shall take such measures consistent with the law, the articles of incorporation and these bylaws, including (for example, and not by way of limitation) the payment in cash of an amount equal to the fair value of any fractional share, as they may deem proper to avoid the issuance of any fractional share. ARTICLE III The Shareholders Section 3.1 Annual Meeting. Commencing in the calendar year 1999, the annual meeting of the shareholders, for the election of directors and for the transaction of such other business as may properly come before the meeting, shall be held at the principal office of the Company, at 9:00 a.m. local time, on April 15 of each year (unless such day is a legal holiday, in which case such meeting shall be held at such hour on the first day thereafter which is not a legal holiday); or at such other place and time as may be designated by the board of directors. Failure to hold any annual meeting or meetings shall not work a forfeiture or dissolution of the Company. Section 3.2 Special Meetings. Except as otherwise provided by law or by the articles of incorporation, special meetings of the shareholders may be called by the -2- 3 chairman of the board of directors, the president, any one of the directors, or the holders of at least ten percent of all the shares having voting power at such meeting, and shall be held at the principal office of the Company or at such other place, and at such time, as may be stated in the notice calling such meeting. The record date for determining shareholders entitled to call a special meeting is the date on which the first shareholder signs the notice of that meeting. Business transacted at any special meeting of shareholders shall be limited to the purpose stated in the notice of such meeting given in accordance with the terms of Section 3.3. Section 3.3 Notice of Meetings--Waiver. Written or printed notice of each meeting of shareholders, stating the place, day and hour of any meeting and, in case of a special shareholders' meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of such meeting, either personally or by mail, by or at the direction of the president, the secretary, or the persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the shareholder at his address as it appears on the stock transfer books of the Company, with postage thereon prepaid. Such further or earlier notice shall be given as may be required by law. The signing by a shareholder of a written waiver of notice of any shareholders' meeting, whether before or after the time stated in such waiver, shall be equivalent to the receiving by him of all notice required to be given with respect to such meeting. Attendance by a shareholder, whether in person or by proxy, at a shareholders' meeting shall constitute a waiver of notice of such meeting. No notice of any adjournment of any meeting shall be required. Section 3.4 Discharge of Notice Requirement. The notice provided for in Section 3.3 of these bylaws is not required to be given to any shareholder if either notice of two consecutive annual meetings and all notices of meetings held during the period between such annual meetings or all payments (but in no event less than two payments) of distributions or interest on securities, during a 12-month period, have been sent by first class mail, to such shareholder, addressed to the address as shown on the records of the Company and have been returned undeliverable. Any action or meeting taken or held without notice to such a shareholder shall have the same force and effect as if the notice had been duly given and any articles or document filed with the Secretary of State pursuant to action taken may state that notice was duly given to all persons to whom notice was required to be given. The requirement that notice be given to such a shareholder shall be reinstated if such shareholder delivers to the Company a written notice setting forth his then current address. Section 3.5. Closing of Transfer Books and Fixing Record Date. For the purpose of determining shareholders entitled to notice of, or to vote at, any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive a distribution by the Company (other than a distribution involving a purchase or redemption by the Company of any of its own shares) or a share dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors of the Company may provide that the stock transfer books shall be closed for a stated period in no case to exceed sixty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least the ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in no case to be more than sixty days nor, in the case of a meeting of shareholders, less than ten days prior to the -3- 4 date on which the particular action requiring such determination of shareholders is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive a distribution (other than a distribution involving a purchase or redemption by the corporation of any of its own shares) or a share dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such distribution or share dividend is adopted, as the case may be, shall be the record date of such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made, as provided in this Section, such determination shall apply to any adjournment thereof except where the determination has been made through the closing of stock transfer books and the stated period of closing has expired. Section 3.6 Distributions and Share Ownership as of Record Date. Distributions of cash, tangible property or intangible property made or payable by the Company, whether in liquidation or from earnings, profits, assets or capital, including all distributions that were payable but not paid to the registered owner of the shares, his heirs, successors or assigns but that are now being held in suspense by the Company or that were paid or delivered by it into an escrow account or to a trustee or custodian, shall be payable by the Company, escrow agent, trustee or custodian to the person registered as owner of the shares in the Company's stock transfer books as of the record date determined for that distribution, as provided in Section 3.5 of these bylaws, his heirs, successors or assigns. The person in whose name the shares are or were registered in the stock transfer books of the Company as of the record date shall be deemed to be the owner of the shares registered in his name at that time. Section 3.7 Voting List. The officer or agent having charge of the stock transfer books for shares of the Company shall make, at least ten days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the Company and shall be subject to lawful inspection by any shareholder at any time during the usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. Failure to comply with this Section shall not affect the validity of any action taken at such meeting. Section 3.8 Quorum and Officers. Except as otherwise provided by law, by the articles of incorporation or by these bylaws, the holders of a majority of the shares of each class issued and outstanding and entitled to vote and represented in person or by proxy shall constitute a quorum at a meeting of shareholders, but the shareholders present at any meeting, although representing less than a quorum, may from time to time adjourn the meeting to some other day and hour, without notice other than announcement at the meeting. The shareholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. The vote of the holders of a majority of the shares of each class entitled to vote and thus represented at a meeting at which a quorum is present shall be the act of the shareholders' meeting, unless the vote of a greater number is required by law. The chairman of the board shall preside at, and the secretary shall keep the records of, each meeting of shareholders, and in the absence of either such officer, his duties shall be performed by any other officer authorized by these bylaws or any person appointed by resolution duly adopted at the meeting. -4- 5 Section 3.9 Proxies. A shareholder may vote either in person or by proxy executed in writing by the shareholder, or by his duly authorized attorney-in-fact. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. A proxy shall be revocable unless the proxy form conspicuously states that the proxy is irrevocable and the proxy is coupled with an interest. Section 3.10 Balloting. Upon the demand of any shareholder, the vote upon any question before the meeting shall be by ballot. At each meeting inspectors of election may be appointed by the presiding officer of the meeting, and at any meeting for the election of directors, inspectors shall be so appointed on the demand of any shareholder present or represented by proxy and entitled to vote in such election of directors. No director or candidate for the office of director shall be appointed as such inspector. The number of votes cast by shares in the election of directors shall be recorded in the minutes. Section 3.11 Voting Rights, Prohibition of Cumulative Voting for Directors. Except to the extent the articles of incorporation or the laws of the State of Texas provide otherwise, each outstanding share shall be entitled to one (1) vote upon each matter submitted to a vote at a meeting of shareholders. No shareholder shall have the right to cumulate his votes for the election of directors but each share shall be entitled to one vote in the election of each director except to the extent the articles of incorporation or the laws of the State of Texas provide otherwise. In the case of any contested election for any directorship, the candidate for such position receiving a plurality of the votes cast in such election shall be elected to such position. Section 3.12 Record of Shareholders. The Company shall keep at its principal business office, or the office of its transfer agents or registrars, a record of its shareholders, giving the names and addresses of all shareholders and the number and class of the shares held by each. Section 3.13 Action Without Meeting. Unless otherwise permitted by the articles of incorporation of the Company, any action required by statute to be taken at a meeting of the shareholders of the Company, or any action which may be taken at a meeting of the shareholders, may be taken without a meeting, without prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, shall be signed by the holder or holders of shares having not less than the minimum number of votes that would be necessary to take such action at a meeting at which all shares entitled to vote on the action were present and voted. Any such signed consent, or a signed copy thereof, shall be placed in the minute book of the Company. All notices with respect to such consent required by the applicable statute shall be sent by the Company in a timely manner. ARTICLE IV The Board of Directors Section 4.1 Number, Qualifications and Term. The business and affairs of the Company shall be managed and controlled by the board of directors; and, subject to any restrictions imposed by law, by the articles of incorporation, or by these bylaws, the board of directors may exercise all the powers of the Company. The number of directors which shall constitute the whole board shall be not less than one (1) and not more than nine (9). -5- 6 Within the foregoing limits, the number of directors shall be determined from time to time by resolution of the shareholders. The initial number of directors shall be seven (7), and such number may be increased or decreased by a majority of the entire board of directors, provided that no decrease shall effect a shortening of the term of any incumbent director. The board of directors shall be divided into three classes, as nearly as equal in number as possible. At each annual meeting of shareholders following the initial classification and election at the 1999 annual meeting of shareholders, directors elected to succeed those directors whose terms expire shall hold office, unless removed in accordance with Section 4.2 of these bylaws, until the third succeeding annual meeting of shareholders after their election and until their successor shall have been duly elected and qualified. Directors need not be residents of Texas or shareholders of the Company absent provision to the contrary in the articles of incorporation or laws of the State of Texas. Except as otherwise provided in Section 4.3 of these bylaws, each position on the board of directors shall be filled by election at the annual meeting of shareholders as provided in this Section 4.1. Any such election shall be conducted in accordance with Section 3.11 of these bylaws. Section 4.2 Removal. Any director or the entire board of directors may be removed from office, with or without cause, at any special meeting of shareholders by the affirmative vote of a majority of the shares of the shareholders present in person or by proxy and entitled to vote at such meeting, if notice of the intention to act upon such matter shall have been given in the notice calling such meeting. If the notice calling such meeting shall have so provided, the vacancy caused by such removal may be filled at such meeting by the affirmative vote of a majority in number of the shares of the shareholders present in person or by proxy and entitled to vote. Section 4.3 Vacancies. Any vacancy occurring in the board of directors may be filled by the vote of a majority of the remaining directors, even if such remaining directors comprise less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. Any position on the board of directors to be filled by reason of an increase in the number of directors shall be filled by the vote of a majority of the directors, election at an annual meeting of the shareholders, or at a special meeting of shareholders duly called for such purpose. Section 4.4 Regular Meetings. Regular meetings of the board of directors shall be held immediately following each annual meeting of shareholders, at the place of such meeting, and at such other times and places as the board of directors shall determine. No notice of any kind of such regular meetings needs to be given to either old or new members of the board of directors. Section 4.5 Special Meetings. Special meetings of the board of directors shall be held at any time by call of the chairman of the board, the president, the secretary or any of the directors. The secretary shall give notice of each special meeting to each director at his usual business or residence address by mail at least three days before the meeting or in person or by facsimile or telephone at least one day before such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid. Except as otherwise provided by law, by the articles of incorporation, or by these bylaws, such notice need not specify the business to be transacted at, or the purpose of, such meeting. No notice shall be necessary for any adjournment of any meeting. The signing of a written waiver of notice of any special meeting by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the receiving of such notice. Attendance of a director at a meeting shall also constitute a waiver of notice of such meeting, except where a -6- 7 director attends a meeting for the express and announced purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. Section 4.6 Quorum. A majority of the number of directors fixed by these bylaws shall constitute a quorum for the transaction of business and the act of not less than a majority of such quorum of the directors shall be required in order to constitute the act of the board of directors, unless the act of a greater number shall be required by law, by the articles of incorporation or by these bylaws. Section 4.7 Procedure at Meetings. In the event the board of directors consist of more than one director, the board of directors, at each regular meeting held immediately following the annual meeting of shareholders, shall appoint one of their number as chairman of the board of directors. Failure to designate a chairman of the board shall be deemed a designation of the president to perform the functions of the chairman of the board. The chairman of the board shall preside at meetings of the board. In his absence at any meeting, any officer authorized by these bylaws or any member of the board selected by the members present shall preside. The secretary of the Company shall act as secretary at all meetings of the board. In his absence, the presiding officer of the meeting may designate any person to act as secretary. At meetings of the board of directors, the business shall be transacted in such order as the board may from time to time determine. Section 4.8 Presumption of Assent. Any director of the Company who is present at a meeting of the board of directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the Company immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. Section 4.9 Action Without a Meeting. Any action required by statute to be taken at a meeting of the directors of the Company, or which may be taken at such meeting, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by each director entitled to vote at such meeting, and such consent shall have the same force and effect as a unanimous vote of the directors. Such signed consent, or a signed copy thereof, shall be placed in the minute book of the Company. Section 4.10 Compensation. Directors as such shall not receive any stated salary for their service, but by resolution of the board of directors, a fixed sum and reimbursement for reasonable expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the board of directors or at any meeting of the executive committee of directors, if any, to which such director may be elected in accordance with the following Section 4.11; but nothing herein shall preclude any director from serving the Company in any other capacity or receiving compensation therefor. Section 4.11 Executive Committee. The board of directors, by resolution adopted by a majority of the full board of directors, may designate an executive committee, which committee shall consist of one or more of the directors of the Company. Such executive committee may exercise such authority of the board of directors in the business and affairs of the Company as the board of directors may, by resolution duly adopted, delegate to it except as prohibited by law. The designation of such committee and the delegation -7- 8 thereto of authority shall not operate to relieve the board of directors, or any member thereof, of any responsibility imposed upon it or him by law. Any member of the executive committee may be removed by the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board of directors when required. The minutes of the proceedings of the executive committee shall be placed in the minute book of the Company. Members of the executive committee shall receive such compensation as may be approved by the board of directors and will be reimbursed for reasonable expenses actually incurred by reason of membership on the executive committee. Section 4.12 Other Committees. The board of directors, by resolution adopted by a majority of the full board of directors, may appoint one or more committees of one or more directors each. Such committees may exercise such authority of the board of directors in the business and affairs of the Company as the board of directors may, by resolution duly adopted, delegate, except as prohibited by law. The designation of any committee and the delegation thereto of authority shall not operate to relieve the board of directors, or any member thereof, of any responsibility imposed on it or him by law. Any member of a committee may be removed at any time by the board of directors. Members of any such committees shall receive such compensation as may be approved by the board of directors and will be reimbursed for reasonable expenses actually incurred by reason of membership on a committee. Section 4.13 Amendments to Article IV. Notwithstanding anything to the contrary contained in these bylaws, no amendment, repeal or provision inconsistent with the provisions of Sections 4.1, 4.2 or 4.3 shall be adopted unless it is approved by the vote of two-thirds of the shares of the Company entitled to vote. ARTICLE V Officers Section 5.1 Number. The officers of the Company shall consist of a president and a secretary; and, in addition, such other officers and assistant officers and agents as may be deemed necessary or desirable. Officers shall be elected or appointed by the board of directors. Any two or more offices may be held by the same person. In its discretion, the board of directors may leave unfilled any office except those of president and secretary. Section 5.2 Election; Term; Qualification. Officers shall be chosen by the board of directors annually at the meeting of the board of directors following the annual shareholders' meeting. Each officer shall hold office until his successor has been chosen and qualified, or until his death, resignation, or removal. Section 5.3 Removal. Any officer or agent elected or appointed by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the Company will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create any contract rights. Section 5.4 Vacancies. Any vacancy in any office for any cause may be filled by the board of directors at any meeting. -8- 9 Section 5.5 Duties. The officers of the Company shall have such powers and duties, except as modified by the board of directors, as generally pertain to their offices, respectively, as well as such powers and duties as from time to time shall be conferred by the board of directors and by these bylaws. Section 5.6 The President. The president shall have general direction of the affairs of the Company and general supervision over its several officers, subject however, to the control of the board of directors. He shall at each annual meeting, and from time to time, report to the shareholders and to the board of directors all matters within his knowledge which, in his opinion, the interest of the Company may require to be brought to the notice of such persons. He may sign, with the secretary or an assistant secretary, any or all certificates of stock of the Company. He shall preside at all meetings of the shareholders, shall sign and execute in the name of the Company (i) all contracts or other instruments authorized by the board of directors, and (ii) all contracts or instruments in the usual and regular course of business, pursuant to Section 6.2 hereof, except in cases when the signing and execution thereof shall be expressly delegated or permitted by the board or by these bylaws to some other officer or agent of the Company; and, in general, shall perform all duties incident to the office of president, and such other duties as from time to time may be assigned to him by the board of directors or as are prescribed by these bylaws. Section 5.7 The Vice Presidents. At the request of the president, or in his absence or disability, the vice presidents, in the order of their election, shall perform the duties of the president, and, when so acting, shall have all the powers of, and be subject to all restrictions upon, the president. Any action taken by a vice president in the performance of the duties of the president shall be conclusive evidence of the absence or inability to act of the president at the time such action was taken. The vice presidents shall perform such other duties as may, from time to time, be assigned to them by the board of directors or the president. A vice president may sign, with the secretary or an assistant secretary, certificates of stock of the Company. Section 5.8 Secretary. The secretary shall keep the minutes of all meetings of the shareholders, of the board of directors, and of the executive committee, if any, of the board of directors, in one or more books provided for such purpose and shall see that all notices are duly given in accordance with the provisions of these bylaws or as required by law. He shall be custodian of the corporate records and of the seal (if any) of the Company and see, if the Company has a seal, that the seal of the Company is affixed to all documents the execution of which on behalf of the Company under its seal is duly authorized; shall have general charge of the stock certificate books, transfer books and stock ledgers, and such other books and papers of the Company as the board of directors may direct, all of which shall, at all reasonable times, be open to the examination of any director, upon application at the office of the Company during business hours; and in general shall perform all duties and exercise all powers incident to the office of the secretary and such other duties and powers as the board of directors or the president from time to time may assign to or confer on him. Section 5.9 Treasurer. The treasurer shall keep complete and accurate records of account, showing at all times the financial condition of the Company. He shall be the legal custodian of all money, notes, securities and other valuables which may from time to time come into the possession of the Company. He shall furnish at meetings of the board of directors, or whenever requested, a statement of the financial condition of the -9- 10 Company, and shall perform such other duties as these bylaws may require or the board of directors may prescribe. Section 5.10. Assistant Officers. Any assistant secretary or assistant treasurer appointed by the board of directors shall have power to perform, and shall perform, all duties incumbent upon the secretary or treasurer of the Company, respectively, subject to the general direction of such respective officers, and shall perform such other duties as these bylaws may require or the board of directors may prescribe. Section 5.11 Salaries. The salaries or other compensation of the officers shall be fixed from time to time by the board of directors. No officer shall be prevented from receiving such salary or other compensation by reason of the fact that he is also a director of the Company. Section 5.12 Bonds of Officers. The board of directors may secure the fidelity of any officer of the Company by bond or otherwise, on such terms and with such surety or sureties, conditions, penalties or securities as shall be deemed proper by the board of directors. Section 5.13 Delegation. The board of directors may delegate temporarily the powers and duties of any officer of the Company, in case of his absence or for any other reason, to any other officer, and may authorize the delegation by any officer of the Company of any of his powers and duties to any agent or employee, subject to the general supervision of such officer. ARTICLE VI Miscellaneous Section 6.1 Distributions. Distributions, subject to the provisions of the articles of incorporation and to limitations set forth by law, if any, may be declared by the board of directors at any regular or special meeting. Distributions may be in the form of a dividend, including a share dividend, a purchase or redemption by the Company, directly or indirectly, of any of its own shares or a payment by the Company in liquidation of all or a portion of its assets. A distribution may not be made if it would render the Company insolvent or if it exceeds the surplus of the Company, except as otherwise allowed by law. Subject to limitations upon the authority of the board of directors imposed by law or by the articles of incorporation, the declaration of and provision for payment of dividends shall be at the discretion of the board of directors. Section 6.2. Contracts. The president shall have the power and authority to execute, on behalf of the Company, contracts or instruments in the usual and regular course of business, and in addition the board of directors may authorize any officer or officers, agent or agents, of the Company to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Company, and such authority may be general or confined to specific instances. Unless so authorized by the board of directors or by these bylaws, no officer, agent or employee shall have any power or authority to bind the Company by any contract or engagement, or to pledge its credit or to render it pecuniarily liable for any purpose or in any amount. -10- 11 Section 6.3 Checks, Drafts, etc. All checks, drafts, or other orders for the payment of money, notes, or other evidences of indebtedness issued in the name of the Company shall be signed by such officers or employees of the Company as shall from time to time be authorized pursuant to these bylaws or by resolution of the board of directors. Section 6.4. Depositories. All funds of the Company shall be deposited from time to time to the credit of the Company in such banks or other depositories as the board of directors may from time to time designate, and upon such terms and conditions as shall be fixed by the board of directors. The board of directors may from time to time authorize the opening and maintaining within any such depository as it may designate, of general and special accounts, and may make such special rules and regulations with respect thereto as it may deem expedient. Section 6.5 Endorsement of Stock Certificates. Subject to the specific directions of the board of directors, any share or shares of stock issued by any corporation and owned by the Company, including reacquired shares of the Company's own stock, may, for sale or transfer, be endorsed in the name of the Company by the president or any vice president; and such endorsement may be attested or witnessed by the secretary or any assistant secretary either with or without the affixing thereto of the corporate seal. Section 6.6 Corporate Seal. The corporate seal, if any, shall be in such form as the board of directors shall approve, and such seal, or a facsimile thereof, may be impressed on, affixed to, or in any manner reproduced upon, instruments of any nature required to be executed by officers of the Company. Section 6.7 Fiscal Year. The fiscal year of the Company shall begin and end on such dates as the board of directors at any time shall determine. Section 6.8 Books and Records. The Company shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and board of directors, and shall keep at its registered office or principal place of business, or at the office of its transfer agent or registrar, a record of its shareholders, giving the names and addresses of all shareholders and the number and class of the shares held by each. Section 6.9 Resignations. Any director or officer may resign at any time. Such resignations shall be made in writing and shall take effect at the time specified therein, or, if no time is specified, at the time of its receipt by the president or secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Section 6.10 Indemnification of Officers and Directors. The Company shall indemnify to the full extent allowed by law any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit, or proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding by reason of the fact that he is or was a director, officer, employee, or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee, partner, venturer, proprietor, trustee, agent, or similar functionary of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan. This indemnification shall, to the extent permitted -11- 12 by law, be against judgments, penalties, fines, settlements and reasonable expenses actually incurred in connection with such investigation, action, suit or proceeding but if the person is found liable to the Company or is found liable on the basis that personal benefit was improperly received by the person, indemnification shall be limited to reasonable expenses actually incurred by the person in connection with the proceeding and shall not be made in respect of any proceedings in which the person shall have been found liable for willful or intentional misconduct in the performance of his duty to the Company. A person acting in his official capacity as a director of the Company must have conducted himself in good faith and reasonably believed his actions to have been in the Company's best interests. A person acting in any other capacity must have conducted himself in good faith and reasonably have believed his actions were not opposed to the Company's best interests. In the case of any criminal proceeding, indemnification requires that the person indemnified have had no reasonable cause to believe his conduct was unlawful. Any indemnification under this Section shall be made by the Company only as authorized in the specific case upon a determination that indemnification is proper because the director, officer, employee or agent has met the applicable standard of conduct as set forth in the laws of the State of Texas, and the amount of indemnification (before or after termination of the proceedings) shall be made only as set forth in the laws of the State of Texas. Such determinations shall be made as set forth in the laws of the State of Texas. Any indemnification of or advance of expenses to any officer, director, employee, or agent of the Company shall be reported in writing to the shareholders with or before the notice or waiver of notice of the next shareholder's meeting or with or before the next submission to shareholders of a consent to action without a meeting pursuant to Section 3.13 hereof and, in any case, within the twelve-month period immediately following the date of the indemnification or advance. Any right of indemnification granted by this Section 6.10 shall be in addition to and not in lieu of any other such right to which any director or officer of the Company may at any time be entitled under the law of the State of Texas; and if any indemnification which would otherwise be granted by this Section 6.10 shall be disallowed by any competent court or administrative body as illegal or against public policy, then any director or officer with respect to whom such adjudication was made, and any other officer or director, shall be indemnified to the fullest extent permitted by law and public policy, it being the express intent of the Company to indemnify its officers, directors, employees and agents to the fullest extent possible in conformity with these bylaws, all applicable laws, and public policy. Section 6.11 Indemnity Insurance. The Company may purchase and maintain insurance or another arrangement on behalf of a person who is or was a director, officer, employee or agent of the Company or who is or was serving at the request of the Company as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan, or other enterprise, against any liability asserted against him and incurred by him in such capacity or arising out of his status as such a person, whether or not the Company would have the power to indemnify him against that liability under these bylaws or the laws of the State of Texas. If the insurance or other arrangement is with a person or entity that is not regularly engaged in the business of providing insurance coverage, the insurance or arrangement may provide for payment of a liability with respect to which the Company would not have the power to -12- 13 indemnify the person only if the shareholders of the Company approve the inclusion of coverage for the additional liability. Section 6.12 Meetings by Telephone. Subject to the provisions required or permitted by these bylaws or the laws of the State of Texas for notice of meetings, shareholders, members of the board of directors, or members of any committee designated by the board of directors may participate in and hold any meeting required or permitted under these bylaws by telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section shall constitute presence in person at such a meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. ARTICLE VII Amendments Section 7.1 Amendments. These bylaws may be altered, amended, or repealed, or new bylaws may be adopted, by a majority of the board of directors at any duly held meeting of directors, (provided that notice of such proposed action shall have been contained in the notice of any such meeting,) unless the articles of incorporation or the laws of the State of Texas reserve the power exclusively to the shareholders in whole or in part, or the shareholders in amending, repealing or adopting a particular bylaw expressly provide that the board of directors may not amend or repeal that bylaw. Unless the articles of incorporation or a bylaw adopted by the shareholders provides otherwise as to all or some portion of the Company's bylaws, the holders of a majority of the shares represented at any duly held meeting of the shareholders, provided that notice of such proposed action shall have been contained in the notice of any such meeting, may amend, repeal or adopt the Company's bylaws. ARTICLE VIII Shareholders' Agreement Section 8.1 Restrictions on Corporate Actions. For so long as the Bargo Group is entitled to nominate one or more persons to the Board of Directors of the Company as provided in the Shareholders' Agreement, dated August 14, 1998, among the Company, Bargo Energy Resources, Ltd., a Texas limited partnership ("Bargo"), and certain other shareholders of the Company ("Shareholders' Agreement"), without the approval of one of the directors nominated by the Bargo Group (which shall be in addition to any other corporate action required by the Articles of Incorporation of the Company, these Bylaws or by applicable law): (a) The Company will not, and will not permit any Subsidiary thereof, in any manner to owe or be liable for Indebtedness except: (i) the Obligations; (ii) the Senior Credit Facility; (iii) obligations under operating leases entered into in the ordinary course -13- 14 of the Company's or its Subsidiaries' business in arm's length transactions at competitive market rates under competitive terms and conditions in all respects; (iv) Indebtedness owed by the Company or any Subsidiary thereof which is subordinated to the Obligations upon terms and conditions satisfactory to ECIC and EnCap LP in their sole and absolute discretion; (v) purchase money Indebtedness in an aggregate principal amount not to exceed $200,000 at any time, provided that the original principal amount of any such Indebtedness shall not be in excess of the purchase price of the asset acquired thereby and such Indebtedness shall be secured only by the acquired asset; (vi) Indebtedness in the principal amount of approximately $20,000 owed to Bank One Texas on a workover rig; and (vii) Indebtedness in the principal amount of approximately $20,000 owed to Sam Henderson. (b) The Company will not, and will not permit its Subsidiaries to, merge or consolidate with or into any other business entity. Any Subsidiary of the Company may, however, be merged into or consolidated with either the Company or another Subsidiary which is wholly-owned by the Company, so long as the Company or the Subsidiary wholly-owned by the Company is the surviving business entity. The Company will not issue any securities other than shares of its common stock or any options or warrants giving the holders thereof only the right to acquire such shares. No Subsidiary of the Company will issue any additional shares of its capital stock or other securities or any options, warrants or other rights to acquire such additional shares or other securities except to the Company. No Subsidiary of the Company which is a partnership will allow any diminution of the Company's interest (direct or indirect) therein. (c) The Company will not, and will not permit any Subsidiary to, sell, transfer, lease, exchange, alienate or dispose of any Collateral except: (i) equipment which is worthless or obsolete or which is replaced by equipment of equal suitability and value; (ii) inventory (including oil and gas sold as produced and seismic data) which is sold in the ordinary course of business on ordinary trade terms; or (iii) other property which is sold for fair consideration not in the aggregate in excess of $500,000 in any Fiscal Year (commencing with Fiscal Year 1998). (d) The Company will not, and will not permit any Subsidiary to, make any expenditure or commitment or incur any obligation or enter into or engage in any transaction except in the ordinary course of business (which ordinary course of business includes the acquisition, directly or indirectly, of oil and gas properties), engage directly or indirectly in any business or conduct any operations except in connection with or incidental to its present businesses and operations, make any acquisitions of or capital contributions to or other investments in any person, other than Permitted Investments, or make any significant acquisitions or investments in any properties other than oil and gas properties. -14- 15 (e) The Company will not, and will not permit any of its Subsidiaries to, engage in any material transaction with any of its Affiliates on terms which are less favorable to it than those which would have been obtainable at the time in arms-length dealing with persons other than such Affiliates, provided that such restriction shall not apply to transactions among the Company and its wholly-owned Subsidiaries. (f) The Company will not, and will not permit any of its Subsidiaries to, declare or make, or incur any liability to declare or make, any Restricted Payment. (g) The Company will not amend, whether by amendment, supplement or renewal, the terms of the Note Documents as they relate to the amortization of Indebtedness under such Note Documents, the principal amount of Indebtedness under such Note Documents or the interest or premium payable with respect to such Indebtedness. Section 8.2 Definitions. As used in this Article VIII of the Bylaws, the following terms shall have the meanings set forth below: "Affiliate" shall mean, when used with respect to another person, any person directly or indirectly controlling, controlled by or under common control with such other person. "Amended Security Documents" has the meaning set forth in the Renewal Note Agreement. "Bargo Group" has the meaning set forth in the Shareholders' Agreement. "Collateral" has the meaning set forth in the Renewal Note Agreement. "ECIC" means Energy Capital Investment Company PLC, an English investment company. "EnCap LP" means EnCap Equity 1994 Limited Partnership, a Texas limited partnership. "Fiscal Year" means the 12 month period ending December 31 of any year. "Further Renewal Notes" shall have the meaning set forth in the Renewal Note Agreement. "GAAP" means those generally accepted accounting principles and practices which are recognized as such by the Financial Accounting Standards Board (or generally recognized successor) and which, in the case of the Company and its consolidated subsidiaries, are applied for periods after the date hereof in a manner consistent with the manner in which such principles were applied prior to the date hereof. "Indebtedness" of any person means Liabilities in any of the following categories: (a) Liabilities for borrowed money; (b) Liabilities constituting an obligation to pay the deferred purchase price of property or services; (c) Liabilities evidenced by a bond, debenture, note or similar instrument; (d) Liabilities which would under GAAP be shown on such person's balance sheet as a liability, and is payable more than one year from the date of creation thereof (other than reserves for taxes and reserves for contingent -15- 16 obligations); (e) Liabilities arising under futures contracts, forward contracts, swap, cap or collar contracts, option contracts, hedging contracts, other derivative contracts, or similar agreements; (f) Liabilities constituting principal under leases capitalized in accordance with GAAP; (g) Liabilities arising under conditional sales or other title retention agreements; (h) Liabilities owing under direct or indirect guaranties of Liabilities of any other person or constituting obligations to purchase or acquire or to otherwise protect or insure a creditor against loss in respect of Liabilities of any other person (such as obligations under working capital maintenance agreements, agreements to keep-well, or agreements to purchase Liabilities, assets, goods, securities or services), but excluding endorsements in the ordinary course of business of negotiable instruments in the course of collection; (i) Liabilities (for example, repurchase agreements) consisting of an obligation to purchase securities or other property, if such Liabilities arise out of or in connection with the sale of the same or similar securities or property; (j) Liabilities with respect to letters of credit or applications or reimbursement agreements therefor; (k) Liabilities with respect to payments received in consideration of oil, gas, or other minerals yet to be acquired or produced at the time of payment (including obligations under "take-or-pay" contracts to deliver gas in return for payments already received and the undischarged balance of any production payment created by such person or for the creation of which such person directly or indirectly received payment), or (l) Liabilities with respect to other obligations to deliver goods or services in consideration of advance payments therefor; provided, however, that the "Indebtedness" of any person shall not include Liabilities that were incurred by such person on ordinary trade terms to vendors, suppliers, or other persons providing goods and services for use by such person in the ordinary course of its business, unless and until such Liabilities are outstanding more than 90 days past the original invoice or billing date therefor. "Liabilities" shall mean, as to any person, all indebtedness, liabilities and obligations of such person, whether mature or unmatured, liquidated or unliquidated, primary or secondary, direct or absolute, fixed or contingent, and whether or not required to be considered pursuant to GAAP. "Note Documents" shall mean the Renewal Note Agreement, the Further Renewal Notes and the Amended Security Documents as defined in the Renewal Note Agreement, and all other agreements, certificates, documents, commitments and writings at any time delivered in connection herewith or therewith. "Obligations" shall mean all Liabilities owing ECIC and EnCap LP under or pursuant to the Renewal Note Agreement, the Further Renewal Notes or any of the other Note Documents. "Permitted Investment" shall mean any investment, loan, advance, guaranty or capital contribution by the Company or any Subsidiary in any of the following: (a) properties or assets to be used in the ordinary course of business of the Company and its Subsidiaries; (b) current assets arising from the sale of goods and services in the ordinary course of business of the Company and its Subsidiaries; (c) investments in one or more of the Company's Subsidiaries or in any person that concurrently with such investment becomes a Subsidiary; (d) any marketable obligation maturing not later than one year after the date of acquisition therefor, issued or guaranteed by the United States of America or by any agency of the United States of America which has the full faith and credit of the Untied States of America; (e) commercial paper which is given the highest rating by a credit rating agency of recognized national standing and maturing not more than 270 days from the date of creation thereof; and (f) any demand deposit or time deposit (including -16- 17 certificates of deposit and money market or sweep accounts) with a commercial bank or trust company organized and doing business under the laws of the United States of America or any state thereof which has capital, surplus and undivided profits of at least $250,000,000, provided that such deposit must be either payable on demand or mature not more than twelve months from the date of investment therein. "Renewal Note Agreement" shall mean that certain Note Restructuring Agreement, dated August 14, 1998, among the Company, ECIC, EnCap LP and Gecko Booty 1994 Limited Partnership, a Texas limited partnership, as such agreement may be amended from time to time. "Restricted Payment" shall mean any Distribution (as defined below) in respect of the Company or any Subsidiary thereof (other than on account of capital stock or other equity interests of a Subsidiary owned legally or beneficially by the Company or another Subsidiary), including any Distribution resulting in the acquisition by the Company of securities that would constitute treasury stock. As used in this definition, "Distribution" shall mean, in respect of any corporation, partnership or other business entity (a) dividends or other distributions or payments on capital stock or other equity interest of such corporation, partnership or other business entity (except distributions in such stock or other equity interest) and (b) the redemption or acquisition of such stock or other equity interests or of warrants, rights or other options to purchase such stock or other equity interests (except when solely in exchange for such stock or other equity interests). "Senior Credit Facility" has the meaning set forth in the Renewal Note Agreement. "Subsidiary" shall mean with respect to any person, any corporation, association, partnership, joint venture, or other business or corporate entity, enterprise or organization which is directly or indirectly (through one or more intermediaries) controlled by or owned fifty percent or more by such person." -17- 18 Certificate by Secretary The undersigned, being the secretary of FPT CORPORATION, hereby certifies that the foregoing code of bylaws was duly adopted by the unanimous written consent of the directors of said corporation effective on March 4, 1999. In Witness Whereof, I have signed this certification on this the 5th day of March, 1999. /s/ Mary Elizabeth Vanderhider ------------------------------------------- Mary Elizabeth Vanderhider, Secretary -18- EX-4.1 5 CERT.OF DESIGNATION OF CONVERTIBLE PREFERRED STOCK 1 EXHIBIT 4.1 FPT CORPORATION CERTIFICATE OF DESIGNATION OF CONVERTIBLE PREFERRED STOCK, SERIES A SETTING FORTH THE POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OF SUCH PREFERRED STOCK Pursuant to Article 2.13 of the Texas Business Corporation Act, FPT Corporation, a Texas corporation (the "Corporation"), DOES HEREBY CERTIFY: That pursuant to the authority conferred upon the Board of Directors of the Corporation by the Articles of Incorporation of the Corporation (the "Charter"), the Board of Directors of the Corporation, on March 4, 1999, duly adopted by all necessary action on the part of the Corporation the following resolution creating a series of Preferred Stock designated as Convertible Preferred Stock, Series A and such resolution has not been modified and is in full force and effect on the date hereof: RESOLVED that, pursuant to the authority vested in the Board of Directors of the Corporation in accordance with the provisions of the Charter, a series of authorized Preferred Stock, par value $0.01 per share, of the Corporation are hereby created and that the designation and number of shares thereof and the voting powers, preferences and relative, participating, optional and other special rights of the shares of such series of Preferred Stock, and the qualifications, limitations and restrictions thereof are as follows: Section 1. Designation and Number. (a) The shares of such series of Preferred Stock shall be designated as "Convertible Preferred Stock, Series A" ("Preferred Stock"). The number of shares initially constituting the Preferred Stock shall be 100,000, which number may be decreased (but not increased) by the Board of Directors without a vote of stockholders; provided, however, that such number may not be decreased below the number of then outstanding shares of such series of Preferred Stock. (b) The Preferred Stock shall, with respect to rights on liquidation, dissolution or winding up, rank prior to all other classes and series of Junior Stock of the Corporation now or hereafter authorized including, without limitation, the Common Stock. (c) Capitalized terms used herein and not otherwise defined shall have the meanings set forth in Section 9 below. Section 2. Dividends and Distributions. In the event that the Corporation shall declare a cash dividend or make any other distribution (including, without limitation, in capital stock (which shall include, without limitation, any options, warrants or other rights to acquire capital stock) of the Corporation, whether or not pursuant to a shareholder rights plan, "poison pill" or similar arrangement, or other property or assets) to holders of Common Stock, then the Board of Directors shall declare, and the holder of each share of -1- 2 Preferred Stock shall be entitled to receive, a dividend or distribution in an amount equal to the amount of such dividend or distribution received by a holder of the number of shares of Common Stock for which such share of Preferred Stock is convertible on the record date for such dividend or distribution. Any such amount shall be paid to the holders of shares of Preferred Stock at the same time such dividend or distribution is made to holders of Common Stock. The holders of shares of Preferred Stock shall not be entitled to receive any dividends or other distributions except as provided herein. Section 3. Voting Rights. In addition to any voting rights provided by law, the holders of shares of Preferred Stock shall have the following voting rights: (a) Except as otherwise required by applicable law and so long as the Preferred Stock is outstanding, each share of Preferred Stock shall entitle the holder thereof to vote, in person or by proxy or written consent, at a special or annual meeting of stockholders or in connection with any stockholder action taken in lieu of a meeting of stockholders, on all matters voted on by holders of Common Stock, including the election of directors, voting together as a single class with all other shares entitled to vote thereon. With respect to any such vote, each share of Preferred Stock shall entitle the holder thereof to cast that number of votes per share as is equal to the number of votes that such holder would be entitled to cast had such holder converted his shares of Preferred Stock into Common Stock on the record date for determining the stockholders of the Corporation eligible to vote on any such matters. (b) Unless the consent or approval of a greater number of shares shall then be required by law, the affirmative vote of the holders of at least 80% of the outstanding shares of Preferred Stock, voting separately as a single class, in person or by proxy, at a special or annual meeting of stockholders called for the purpose, shall be necessary to (i) authorize, adopt or approve an amendment to the Charter that would increase or decrease the par value of the shares of Preferred Stock, or alter or change the powers, preferences or special rights of the shares of Preferred Stock, (ii) amend, alter or repeal the Charter so as to affect the shares of Preferred Stock adversely, including, without limitation, by granting any voting right to any holder of notes, bonds, debentures or other debt obligations of the Corporation, or (iii) authorize, increase the authorized number of shares of, or issue (including on conversion or exchange of any convertible or exchangeable securities or by reclassification) any additional shares of Preferred Stock. In addition, for so long as the number of authorized shares of Common Stock is not sufficient to permit the holders of Preferred Stock to convert all of their shares of Preferred Stock into common stock, the adoption or approval of any plan or arrangement providing for the liquidation or dissolution of the Corporation shall in addition to any other vote required at law or by the Charter, require the affirmative vote of holders of at least 66 2/3% of the outstanding shares of Preferred Stock, voting separately as a single class, in person or by proxy, at a special or annual meeting of stockholders called for the purpose. (c) (i) The foregoing right of holders of shares of Preferred Stock to take any action as provided in Section 3(b) may be exercised at any annual meeting of stockholders or at a special meeting of holders of shares of Preferred Stock held for such purpose as hereinafter provided or at any adjournment thereof, or by the written consent, delivered to the Secretary of the Corporation, of the holders of the minimum number of shares required to take such action. -2- 3 So long as such right to vote continues (and unless such right has been exercised by written consent of the minimum number of shares required to take such action), the Chief Executive Officer or President of the Corporation may call, and upon the written request of holders of record of at least 5% of the outstanding shares of Preferred Stock, addressed to the Secretary of the Corporation at the principal office of the Corporation, shall call, a special meeting of the holders of shares entitled to vote as provided herein. Such meeting shall be held within 30 days after delivery of such request to the Secretary, at the place and upon the notice provided by law and in the by-laws of the Corporation for the holding of meetings of stockholders. (ii) At each meeting of stockholders at which the holders of shares of Preferred Stock shall have the right, voting separately as a single class, to take any action, the presence in person or by proxy of the holders of record of one-third of the total number of shares of Preferred Stock then outstanding and entitled to vote on the matter shall be necessary and sufficient to constitute a quorum. At any such meeting or at any adjournment thereof: (A) the absence of a quorum of the holders of shares of any other class or series of capital stock shall not prevent the taking of any action by holders of Preferred Stock as provided in this Section 3: and (B) in the absence of a quorum of the holders of shares of Preferred Stock, a majority of the holders of such shares present in person or by proxy shall have the power to adjourn the meeting as to the actions to be taken by the holders of shares of Preferred Stock from time to time and place to place without notice other than announcement at the meeting until a quorum shall be present. For taking of any action as provided in Section 3(b) by the holders of shares of Preferred Stock, each such holder shall have one vote for each share of such stock standing in his or her name on the transfer books of the Corporation as of any record date fixed for such purpose or, if no such date be fixed, at the close of business on the Business Day next preceding the day on which notice is given, or if notice is waived, at the close of business on the Business Day next preceding the day on which the meeting is held; provided, however, that shares of Preferred Stock held by the Corporation or any subsidiary of the Corporation shall not be deemed to be outstanding for purposes of taking any action as provided in this Section 3. Section 4. Redemption. The Corporation shall not have any right to redeem any shares of Preferred Stock. Section 5. Reacquired Shares. Any shares of Preferred Stock converted, exchanged, redeemed, purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares of Preferred Stock shall upon their cancellation become authorized but unissued shares of preferred stock, par value $0.01 per share, of the Corporation and, upon the filing of an appropriate Certificate of Designation with the Secretary of State of the State of Utah, may be reissued as part of another series of preferred stock, par value $0.01 per share, of the Corporation subject to the conditions or restrictions on issuance set forth herein, but in any event may not be -3- 4 reissued as shares of Preferred Stock or other Parity Stock unless all of the shares of Preferred Stock issued on the Issue Date shall have already been redeemed, converted or exchanged. Section 6. Liquidation, Dissolution or Winding Up. (a) If the Corporation shall commence a voluntary case under the United States bankruptcy laws or any applicable bankruptcy, insolvency or similar law of any other country, or consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or make an assignment for the benefit of its creditors, or admit in writing its inability to pay its debts generally as they become due (any such event, a "Voluntary Liquidation Event"), or if a decree or order for relief in respect of the Corporation shall be entered by a court having jurisdiction in the premises in an involuntary case under the United States bankruptcy laws or any applicable bankruptcy, insolvency or similar law of any other country, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and on account of any such event the Corporation shall liquidate, dissolve or wind up, or if the Corporation shall otherwise liquidate, dissolve or wind up, no distribution shall be made (i) to the holders of shares of Junior Stock unless, prior thereto, the holders of shares of Preferred Stock shall have received the Liquidation Preference. (b) Neither the consolidation or merger of the Corporation with or into any other Person nor the sale or other distribution to another Person of all or substantially all the assets, property or business of the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation for purposes of this Section 6. Section 7. Conversion. (a) Any holder of Preferred Stock shall have the right, at its option, at any time and from time to time, to convert, subject to the terms and provisions of this Section 7, any or all of such holder's shares of Preferred Stock into such number of fully paid and non-assessable shares of Common Stock as is equal, subject to Section 7(g), to the product of the number of shares of Preferred Stock being so converted multiplied by the quotient of (i) the Purchase Price divided by (ii) the Conversion Price (as defined below) then in effect. The Conversion Price shall be $1.00, subject to adjustment as set forth in Section 7(d). Such conversion right shall be exercised by the surrender of the shares to be converted to the Corporation at any time during usual business hours at its principal place of business to be maintained by it, accompanied by written notice that the holder elects to convert such shares and specifying the name or names (with address) in which a certificate or certificates for shares of Common Stock are to be issued and (if so required by the Corporation) by a written instrument or instruments of transfer in form reasonably satisfactory to the Corporation duly executed by the holder or its duly authorized legal representative and transfer tax stamps or funds therefor, if required pursuant to Section 7(j). All shares of Preferred Stock surrendered for conversion shall be delivered to the Corporation for cancellation and cancelled by it and no shares of Preferred Stock shall be issued in lieu thereof. (b) As promptly as practicable after the surrender, as herein provided, of any shares of Preferred Stock for conversion pursuant to Section 7(a), the Corporation shall deliver to or upon the written order of the holder of such shares so surrendered a certificate or certificates representing the number of fully paid and non-assessable shares -4- 5 of Common Stock into which such shares of Preferred Stock may be or have been converted in accordance with the provisions of this Section 7. Subject to the following provisions of this paragraph and of Section 7(d), such conversion shall be deemed to have been made immediately prior to the close of business on the date that such shares of Preferred Stock shall have been surrendered in satisfactory form for conversion, and the Person or Persons entitled to receive the Common Stock deliverable upon conversion of such shares of Preferred Stock shall be treated for all purposes as having become the record holder or holders of such Common Stock at such appropriate time, and such conversion shall be at the Conversion Price in effect at such time; provided, however, that no surrender shall be effective to constitute the Person or Persons entitled to receive the Common Stock deliverable upon such conversion as the record holder or holders of such Common Stock while the share transfer books of the Corporation shall be closed (but not for any period in excess of five days), but such surrender shall be effective to constitute the Person or Persons entitled to receive such Common Stock as the record holder or holders thereof for all purposes immediately prior to the close of business on the next succeeding day on which such share transfer books are open, and such conversion shall be deemed to have been made at, and shall be made at the Conversion Price in effect at, such time on such next succeeding day. (c) To the extent permitted by law, when shares of Preferred Stock are converted, all dividends declared and unpaid on the Preferred Stock so converted to the date of conversion shall be immediately due and payable and must accompany the shares of Common Stock issued upon such conversion. (d) The Conversion Price shall be subject to adjustment as follows: (i) In case the Corporation shall at any time or from time to time (A) pay a dividend or make a distribution (other than a dividend or distribution paid or made to holders of shares of Preferred Stock in the manner provided in Section 2) on the outstanding shares of Common Stock in capital stock (which, for purposes of this Section 7(d) shall include, without limitation, any dividends or distributions in the form of options, warrants or other rights to acquire capital stock) of the Corporation, (B) subdivide the outstanding shares of Common Stock into a larger number of shares, (C) combine the outstanding shares of Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock then, and in each such case, the Conversion Price in effect immediately prior to such event shall be adjusted (and any other appropriate actions shall be taken by the Corporation) so that the holder of any share of Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other securities of the Corporation that such holder would have owned or would have been entitled to receive upon or by reason of any of the events described above, had such share of Preferred Stock been converted immediately prior to the occurrence of such event. An adjustment made pursuant to this Section 7(d)(i) shall become effective retroactively (A) in the case of any such dividend or distribution, to a date immediately following the close of business on the record date for the determination of holders of Common Stock entitled to receive such dividend or distribution or (B) in the case of any such subdivision, combination or reclassification, to the close of business on the day upon which such corporate action becomes effective. -5- 6 (ii) In the case the Corporation, at any time or from time to time, shall take any action affecting its Common Stock similar to or having an effect similar to any of the actions described in any of Section 7(d)(i), or Section 7(h) (but not including any action described in any such Section) and the Board of Directors of the Corporation in good faith determines that it would be equitable in the circumstances to adjust the Conversion Price as a result of such action, then, and in each such case, the Conversion Price shall be adjusted in such manner and at such time as the Board of Directors of the Corporation in good faith determines would be equitable in the circumstances (such determination to be evidenced in a resolution, a certified copy of which shall be mailed to the holders of the Preferred Stock). (iii) Notwithstanding anything herein to the contrary, no adjustment under this Section 7(d) need be made to the Conversion Price unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price then in effect. Any lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment, which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% of such Conversion Price. Any adjustment to the Conversion Price carried forward and not theretofore made shall be made immediately prior to the conversion of any shares of Preferred Stock pursuant hereto. (e) If the Corporation shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or deliver such dividend or distribution, then thereafter no adjustment in the Conversion Price then in effect shall be required by reason of the taking of such record. (f) Upon any increase or decrease in the Conversion Price, then, and in each such case, the Corporation promptly shall deliver to each registered holder of Preferred Stock at least 10 Business Days prior to effecting any of the foregoing transactions a certificate, signed by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation, setting forth in reasonable detail the event requiring the adjustment and the method by which such adjustment was calculated and specifying the increased or decreased Conversion Price then in effect following such adjustment. (g) No fractional shares or scrip representing fractional shares shall be issued upon the conversion of any shares of Preferred Stock. If more than one share of Preferred Stock shall be surrendered for conversion at one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate Purchase Price of the shares of Preferred Stock so surrendered. If the conversion of any share or shares of Preferred Stock results in a fraction, an amount equal to such fraction multiplied by the Current Market Price of the Common Stock on the Business Day preceding the day of conversion shall be paid to such holder in cash by the Corporation. (h) In case of any capital reorganization or reclassification or other change of outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value), or in case of any consolidation or merger of the Corporation with or into another Person (other than a consolidation or merger in which the Corporation is the resulting or surviving Person and -6- 7 which does not result in any reclassification or change of outstanding Common Stock), or in case of any sale or other disposition to another Person of all or substantially all of the assets of the Corporation (any of the foregoing, a "Transaction"), the Corporation, or such successor or purchasing Person, as the case may be, shall execute and deliver to each holder of Preferred Stock at least 10 Business Days prior to effecting any of the foregoing Transactions a certificate that the holder of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock or other securities (of the Corporation or another issuer) or property or cash receivable upon such Transaction by a holder of the number of shares of Common Stock into which such share of Preferred Stock could have been converted immediately prior to such Transaction. Such certificate shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 7. If, in the case of any such Transaction, the stock, other securities, cash or property receivable thereupon by a holder of Common Stock includes shares of stock or other securities of a Person other than the successor or purchasing Person and other than the Corporation, which controls or is controlled by the successor or purchasing Person or which, in connection with such Transaction, issues stock, securities, other property or cash to holders of Common Stock, then such certificate also shall be executed by such Person, and such Person shall, in such certificate, specifically acknowledge the obligations of such successor or purchasing Person and acknowledge its obligations to issue such stock, securities, other property or cash to the holders of Preferred Stock upon conversion of the shares of Preferred Stock as provided above. The provisions of this Section 7(h) and any equivalent thereof in any such certificate similarly shall apply to successive Transactions. (i) Unless otherwise agreed to in writing by the holders of all of the Preferred Stock, the Corporation shall at all times reserve and keep available for issuance upon the conversion of the Preferred Stock, such number of its authorized but unissued shares of Common Stock as will from time to time be sufficient to permit the conversion of all outstanding shares of Preferred Stock, and shall take all action required to increase the authorized number of shares of Common Stock if at any time there shall be insufficient authorized but unissued shares of Common Stock to permit such reservation or to permit the conversion of all outstanding shares of Preferred Stock. (j) The issuance or delivery of certificates for Common Stock upon the conversion of shares of Preferred Stock shall be made without charge to the converting holder of shares of Preferred Stock for such certificates or for any tax in respect of the issuance or delivery of such certificates or the securities represented thereby, and such certificates shall be issued or delivered in the respective names of, or (subject to compliance with the applicable provisions of federal and state securities laws) in such names as may be directed by, the holders of the shares of Preferred Stock converted; provided, however, that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any such certificate in a name other than that of the holder of the shares of Preferred Stock converted, and the Corporation shall not be required to issue or deliver such certificate unless or until the Person or Persons requesting the issuance or delivery thereof shall have paid to the Corporation the amount of such tax or shall have established to the reasonable satisfaction of the Corporation that such tax has been paid. Section 8. Certain Remedies. Any registered holder of Preferred Stock shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Certificate of Designation and to enforce specifically the terms and provisions of this Certificate of Designation in any -7- 8 court of the United States or any state thereof having jurisdiction, this being in addition to any other remedy to which such holder may be entitled at law or in equity. Section 9. Definitions. For the purposes of this Certificate of Designation of Preferred Stock, the following terms shall have the meanings indicated: "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act; provided that "Affiliate" shall not include the Purchaser or any Affiliate of the Purchaser. "Business Day" shall mean any day other than a Saturday, Sunday or other day on which commercial banks in the City of New York are authorized or required by law or executive order to close. "Common Stock" shall mean and include the Common Stock, par value $0.01 per share, of the Corporation and each other class of capital stock of the Corporation that does not have a preference over any other class of capital stock of the Corporation as to dividends or upon liquidation, dissolution or winding up of the Corporation and, in each case, shall include any other class of capital stock of the Corporation into which such stock is reclassified or reconstituted. "Current Market Price" per share shall mean, on any date specified herein for the determination thereof, (a) the average daily Market Price of the Common Stock for those days during the period of 20 days, ending on such date, which are Trading Days, and (b) if the Common Stock is not then listed or admitted to trading on any national securities exchange or quoted in the over-the-counter market, the Market Price on such date. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder. "Issue Date" shall mean the first date on which shares of Preferred Stock are issued. "Junior Stock" shall mean any capital stock of the Corporation ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Preferred Stock including, without limitation, the Common Stock. "Liquidation Preference" with respect to a share of Preferred Stock shall mean $10.00. "Market Price" shall mean, per share of Common Stock on any date specified herein: (a) the closing price per share of the Common Stock on such date published in the Wall Street Journal or, if no such closing price on such date is published in the Wall Street Journal, the average of the closing bid and asked prices on such date, as officially reported on the principal national securities exchange on which the Common Stock is then listed or admitted to trading; or (b) if the Common Stock is not then listed or admitted to trading on any national securities exchange but is designated as a national market system security by the NASD, the last trading price of the Common Stock on such date; or (c) if there shall have been no trading on such date or if the Common Stock is not so designated, the average of the reported closing bid and asked prices of the Common Stock on such date as shown by NASDAQ and reported by any member firm of the New -8- 9 York Stock Exchange, Inc. selected by the Corporation. If none of (a), (b) or (c) is applicable, Market Price shall mean a market price per share determined at the Corporation's expense by an appraiser chosen by the holders of a majority of the shares of Preferred Stock or, if no such appraiser is so chosen more than twenty business days after notice of the necessity of such calculation shall have been delivered by the Corporation to the holders of Preferred Stock, then by an appraiser chosen by the Corporation. "NASD" shall mean the National Association of Securities Dealers, Inc. "NASDAQ" shall mean the National Market System of the National Association of Securities Dealers, Inc. Automated Quotations System. "Parity Stock" shall mean any capital stock of the corporation ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Preferred Stock. "Person" shall mean any individual, firm, corporation, partnership, trust, incorporated or unincorporated association, limited liability company, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger) of such entity. "Purchase Price" means $260 per share of Preferred Stock. "Purchaser" shall mean Bargo Energy Resources, Ltd., a Texas limited partnership. "Senior Stock" shall mean any capital stock of the Corporation ranking senior (either as to dividends or upon liquidation, dissolution or winding up) to the Preferred Stock. "Subsidiary" shall mean, with respect to any Person, a corporation or other entity of which 50% or more of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by such Person. "Trading Day" shall mean a day on which the national securities exchanges are open for trading. -9- 10 IN WITNESS WHEREOF, FPT CORPORATION has caused this Certificate to be duly executed in its corporate name on this 4th day of March, 1999. FPT CORPORATION By: /s/ Tim J. Goff --------------------------------- Tim J. Goff, President -10- EX-99.1 6 PRESS RELEASE 1 EXHIBIT 99.1 FOR IMMEDIATE RELEASE CONTACT: Carl Price, President April 28, 1999 (713) 236-9792 FUTURE PETROLEUM ANNOUNCES REINCORPORATION, NAME CHANGE AND INCREASE IN CAPITAL STOCK Houston- Future Petroleum Corporation (OTC Bulletin Board "FUPT") announced today that on April 26, 1999 it completed a reincorporation merger into a Texas subsidiary. In connection with the reincorporation merger, the company also changed its name to "Bargo Energy Company" and caused an increase in the amount of capital stock available for issuance. Effective April 29, 1999, the common stock of the company will be traded on the OTC under the symbol "BARG." -----END PRIVACY-ENHANCED MESSAGE-----