Unit Corporation
Extract: Charter Amended/Restated (Plain English Desc) from a 8-K on 09/10/2020   Download
SEC Document
SEC Filing
On the Effective Date, under the Plan, the Company filed the Amended and Restated Certificate of Incorporation (Certificate of Incorporation) with the office of the Secretary of State of the State of Delaware. Also on the Effective Date, and under the terms of the Plan, the Company adopted the Amended and Restated Bylaws (Bylaws).
A description of the material changes from the Company’s prior certificate of incorporation (Prior Certificate) and bylaws (Prior Bylaws) is set forth below. Additionally, the General Corporation Law of the State of Delaware (DGCL) may contain provisions that affect the capital stock of the Company. For purposes of this section, Common Stock means New Common Stock issued pursuant to the Plan.
With respect to the Certificate of Incorporation, the material differences between the Certificate of Incorporation and the Prior Certificate include the following:
The Certificate of Incorporation authorizes the Company to issue up to 25,000,000 shares of common stock, par value $0.01 per share (Common Stock) and 1,000,000 shares of preferred stock, par value $0.01 per share (Preferred Stock). The Prior Certificate authorized the Company to issue up to 175,000,000 shares of Common Stock, par value $0.20 per share and 5,000,000 shares of Preferred Stock, par value $1.00 per share.
The Certificate of Incorporation prohibits the Company from issuing non-voting equity securities (which shall not be deemed to include any warrants or options to purchase capital stock of the Company) to the extent provided by Section 1123(a)(6) of the Bankruptcy Code. The Prior Certificate did not contain a comparable provision.
The Certificate of Incorporation provides that, commencing at the time the Company does not have any class of securities registered pursuant to Section 12 of the Exchange Act, and for so long as the Company does not have a class of securities registered pursuant to Section 12 of the Exchange Act, until the earlier to occur of (x) the Consenting Noteholders (as defined in the Plan) ceasing to hold at least 50% of the outstanding shares of then outstanding shares of capital stock of the Company entitled to vote generally in the election of directors (Voting Stock) and (y) a public offering of Common Stock having occurred and shares of the Company’s Common Stock with a value of at least $250 million having been listed for trading on a national securities exchange, the Company shall not take certain actions without the consent of holders of at least 50% of the voting power of the then outstanding Voting Stock. Such actions include, among other things, (i) increasing or decreasing the size of the Board, (ii) undertaking any fundamental change to the nature of the business, (iii) consummating a public offering of Common Stock, (iv) any redemption or
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repurchase of the Company’s equity securities or declaring any dividend on the Common Stock, or (v), subject to certain exceptions, incurring an aggregate amount of indebtedness for borrowed money of the Company and its subsidiaries taken as a whole in excess of $25 million. The Prior Certificate provided that certain business combinations would require the affirmative vote of at least 80% of the Voting Stock.
The Certificate of Incorporation provides that the Board will be divided into two classes, Group I and Group II, each of which will consist, as nearly as possible, of one-half of the total number of directors. The Group I directors will initially serve until the Company’s annual meeting of stockholders in 2021 or until their successors are elected and qualified, and the Group II directors will initially serve until the Company’s annual meeting of stockholders in 2022 or until their successors are elected and qualified. Commencing at the 2021 annual meeting of stockholders, each nominee for director will stand for election to a two-year term expiring at the second annual meeting of stockholders occurring after such director’s election and until such director’s successor is duly elected and qualified, subject to such director’s earlier resignation, retirement, removal from office, death or incapacity. The Prior Bylaws divided the Board into three classes, with each class elected to serve three-year terms.
The Certificate of Incorporation provides that the directors may be removed, with or without cause, by an affirmative vote of the holders of at least a majority of the voting power of the then outstanding Voting Stock. The Prior Certificate and Prior Bylaws were silent on director removal, and under the default law of Delaware, stockholders may effect removal of directors serving on a classified board only for cause.
The Certificate of Incorporation provides that, subject to certain exceptions, the Company renounces any interest or expectancy of the Company or any of its controlled Affiliates (as defined in the Certificate of Incorporation) in, or in being offered an opportunity to participate in, any Corporate Opportunity (as defined in the Certificate of Incorporation) that is from time to time presented to any “Dual Role Person.” A “Dual Role Person” means any of the following individually or collectively, other than any person who is an employee (including an officer) of the Company or any of its subsidiaries: (A) any stockholder of the Company and (B) any person elected, appointed or otherwise serving as a director of the Company in accordance with the terms hereof, and, in each case of clauses (A) and (B), any of such stockholder’s or person’s Affiliates (other than, if applicable, the Company and its subsidiaries). The Prior Certificate did not contain a comparable provision.
The Certificate of Incorporation provides that for so long as the Company does not have a class of securities registered under Section 12 of the Exchange Act, holders of 5% of the outstanding Common Stock who also held at least 5% of the Common Stock as of the Effective Date will have certain preemptive rights in respect of any issuance or sale of the Common Stock, preferred stock or certain other securities by the Company. The Prior Certificate expressly prohibited such preemptive rights.
The Certificate of Incorporation expressly opts out of Section 203 of the DGCL. The Prior Certificate did not contain the same provision (which means the Company was subject to Section 203 of the DGCL under the Prior Certificate) but required a supermajority vote by stockholders for certain business combinations with interested stockholders.
The Certificate of Incorporation designates courts in Delaware as the exclusive forum for derivative actions and certain other actions and claims. The Prior Certificate did not contain a comparable provision.
The Certificate of Incorporation contains certain restrictions on transfer of the Company’s equity securities by persons with a percentage stock ownership of 4.75% or more to ensure the preservation of certain tax attributes for the benefit of the Company and its stockholders. The Prior Certificate did not contain a comparable provision.