SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 8-A/A
(AMENDMENT NO. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
---------------
POGO PRODUCING COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-1659398
(STATE OF INCORPORATION (I.R.S. EMPLOYER
OR ORGANIZATION) IDENTIFICATION NO.)
5 GREENWAY PLAZA, SUITE 2700
HOUSTON, TEXAS 77046
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NAME OF EACH EXCHANGE ON WHICH
TITLE OF EACH CLASS TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
--------------------------------------- ------------------------------
COMMON STOCK, PAR VALUE $1.00 PER SHARE NEW YORK STOCK EXCHANGE
PACIFIC EXCHANGE
IF THIS FORM RELATES TO THE REGISTRATION OF A CLASS OF SECURITIES
PURSUANT TO SECTION 12(b) OF THE EXCHANGE ACT AND IS EFFECTIVE PURSUANT TO
GENERAL INSTRUCTION A.(c), CHECK THE FOLLOWING BOX. [X]
IF THIS FORM RELATES TO THE REGISTRATION OF A CLASS OF SECURITIES
PURSUANT TO SECTION 12(g) OF THE EXCHANGE ACT AND IS EFFECTIVE PURSUANT TO
GENERAL INSTRUCTION A.(d), CHECK THE FOLLOWING BOX. [ ]
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM RELATES:
(NOT APPLICABLE)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
(TITLE OF CLASS)
This Amendment No. 1 hereby amends and restates the Registration Statement
on Form 8-A originally filed by Pogo Producing Company, a Delaware corporation
(the "Company") on November 7, 1978 relating to the Company's Common Stock (as
defined below).
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
-------------------------------------------------------
The class of securities registered is the common stock, par value $1.00 per
share of the Company. The authorized capital stock of the Company currently
consists of 200,000,000 shares of common stock and 4,000,000 shares of preferred
stock, par value $1.00 per share. The following summary is qualified by
reference to the Company's restated certificate of incorporation, a copy of
which has been filed as Exhibit 3(a) to the Company's annual report on Form 10-K
for the year ended December 31, 1996, filed on March 20, 1997, as amended by the
certificate of amendment to the restated certificate of incorporation, a copy of
which has been filed as Exhibit 4.3 to the Company's registration statement on
Form S-3, filed on May 11, 2001, and by reference to the Company's bylaws, as
amended and restated through January 27, 1998, a copy of which has been filed as
Exhibit 3(b) to the Company's annual report on Form 10-K for the year ended
December 31, 1997, filed on March 17, 1998.
COMMON STOCK
The holders of common stock are entitled to any dividends declared from
time to time in the discretion of Pogo's board of directors out of funds legally
available for that purpose, subject to any preferential rights of any
outstanding shares of Pogo's preferred stock. Holders of common stock are
entitled to share ratably in Pogo's net assets upon liquidation after the
liquidator pays or provides for all liabilities and any preferential liquidation
rights of any preferred stock then outstanding. The rights of holders of common
stock are subject to the rights of holders of any preferred stock that may be
issued in the future. The holders of common stock have no preemptive rights to
purchase additional shares of Pogo's capital stock. Shares of common stock are
not subject to any redemption or sinking fund provisions and are not convertible
into any other securities. All of Pogo's outstanding shares of common stock are
validly issued, fully paid and non-assessable.
The holders of shares of common stock are entitled to one vote for each
share held on all matters submitted to a vote of holders of common stock. Pogo's
common stock does not have cumulative voting rights. This means that the holders
of a majority of the shares of common stock outstanding can elect all the
directors standing for election at any given time if they choose to do so.
PREFERRED STOCK
The prospectus supplement relating to any series of preferred stock being
offered will include specific terms relating to the offering. In general, Pogo's
board of directors is empowered, without approval of the shareholders, to cause
shares of preferred stock to be issued in one or more series, with the number of
shares of each series and the rights, preferences and limitations of each series
to be determined by it. When issued and
paid for, all shares of preferred stock will be validly issued, fully paid and
non-assessable. Among the specific matters that may be determined by Pogo's
board of directors are:
- the description and number of shares to constitute each series;
- the annual dividend rate;
- whether the dividends will be cumulative;
- the time and price of redemption and the liquidation preference
applicable to the series;
- whether the series will be subject to the operation of a "sinking" or
"purchase" fund and, if so, the terms and provisions of that fund;
- whether the shares of that series will be convertible into shares of any
other class or classes and the terms and provisions of those conversion
rights; and
- any voting powers of the shares of that series.
Pogo's board of directors may change the designation, rights, preferences,
descriptions and terms of, and the number of shares in, any series if no shares
have been issued before that time.
The issuance of one or more series of our preferred stock could adversely
affect the voting power of the holders of Pogo's common stock and could have the
effect of discouraging or making more difficult any attempt by a person or group
to obtain control of Pogo.
Pogo's board of directors has reserved for issuance under the Shareholder
Rights Plan described below a total of 2,000,000 shares of Pogo's Series A
Preferred Stock. Pogo has not issued any shares of Series A Preferred Stock as
of the date of this prospectus.
LISTINGS
Pogo's common stock is listed and traded on the New York Stock Exchange and
the Pacific Exchange under the symbol "PPP."
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for Pogo's common stock is Computershare
Investor Services of Dallas, Texas.
SHAREHOLDER RIGHTS PLAN
Pogo has a shareholder rights plan under which one preferred share purchase
right is attached to each outstanding share of Pogo's common stock. Those rights
become exercisable under specified circumstances, including any person or group
(an "acquiring person") becoming the beneficial owner of 20% or more of Pogo's
outstanding common stock, subject to specified exceptions. Pursuant to action by
the board of directors, the former owners of NORIC Corporation, who may be
deemed to constitute a group owing more than 20% of Pogo's outstanding common
stock, were permitted to become Pogo shareholders without causing the rights to
become exercisable. Each right entitles the registered holder to purchase from
Pogo one one-hundredth of a share of Series A Preferred Stock at an exercise
price of $80, subject to adjustment under
specified circumstances. If events specified in the shareholder rights plan
occur, each holder of rights other than the acquiring person can exercise their
rights. When a holder exercises a right, the holder will be entitled to receive
common stock valued at twice the exercise price of the right. In some cases, the
holder will receive cash, property or other securities instead of common stock.
Pogo may redeem the rights for $0.01 per right at any time prior to the tenth
day after a person or group becomes an acquiring person. The shareholder rights
plan and the rights expire in April 2004.
The rights have certain antitakeover effects. The rights will cause
substantial dilution to a person or group that attempts to acquire Pogo on terms
not approved by the board of directors, except pursuant to an offer conditioned
on a substantial number of rights being acquired. The rights should not
interfere with any merger or other business combination approved by the board of
directors at a time when the rights are redeemable.
This description of the shareholder rights plan is incomplete and is
qualified in its entirety by reference to the plan itself. The plan is filed as
an exhibit to Pogo's Annual Report on Form 10-K.
DELAWARE LAW AND CERTAIN CHARTER AND BYLAW PROVISIONS
As permitted by the Delaware corporations statute, Pogo has included in its
Restated Certificate of Incorporation a provision that, to the fullest extent
permitted by that statute, Pogo's directors will not be liable for monetary
damages for breach of their fiduciary duty of care to Pogo and its shareholders.
The Restated Certificate of Incorporation provides that directors of a company
will not be personally liable for monetary damages for breach of their fiduciary
duties as directors, except for liability:
- for any breach of their duty of loyalty to Pogo or its shareholders;
- for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
- under Section 174 of the Delaware corporations statute regarding unlawful
payments of dividends or unlawful stock repurchases or redemptions; or
- for any transaction from which the director derived an improper personal
benefit.
This provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
Pogo's Bylaws likewise require Pogo to indemnify its directors, officers,
employees or other agents to the fullest extent permitted by the Delaware
corporations statute, and to advance expenses to its officers and directors as
incurred. Pogo also has in place employment agreements with some of its officers
providing coverage that is substantially identical to the indemnification
provisions in its Bylaws.
ANTI-TAKEOVER PROVISIONS
The provisions of Pogo's Restated Certificate of Incorporation summarized
in the succeeding paragraphs may have an anti-takeover effect. Those provisions
may delay, defer or prevent a tender offer or takeover attempt that shareholders
might consider in their best interest, including those attempts that might
result in a premium over the market price for the shares of common stock held by
shareholders.
Before Pogo can take any of the following actions, holders of at least 80%
of Pogo's outstanding shares of common stock must vote in favor of that action:
- a merger or similar reorganization of Pogo or other specified
transactions involving Pogo if the other party to that transaction
already beneficially owns 5% or more of Pogo's outstanding common stock
and Pogo's board of directors has not approved the transaction prior to
the time at which the other party becomes a 5% beneficial owner;
- an amendment to Pogo's Restated Certificate of Incorporation to alter or
change the provision establishing a "classified" board of directors,
elected approximately one-third annually; and
- an amendment to the foregoing and other specified provisions of the
Restated Certificate of Incorporation.
Pogo's board of directors is divided into three classes having staggered
terms, with one-third of the directors being elected each year for a term of
three years. Pogo's common stock does not have cumulative voting rights. This
means that the holders of a majority of the shares of common stock outstanding
can elect all the directors standing for election at any given time if they
choose to do so. If that happens, then the holders of the remaining shares will
not be able to elect any directors.
Pogo's board of directors may establish by resolution one or more
additional series of preferred stock having the number of shares, designation,
relative voting rights, dividend rates, liquidation and other rights,
preferences and limitations as may be fixed by the board of directors without
any further stockholder approval. Those rights, preferences, privileges and
limitations could impede or discourage attempts to acquire control of Pogo. See
the section under the heading "Shareholder Rights Plan" above.
Pogo's Restated Certificate of Incorporation and Bylaws further provide
that:
- shareholders may act only at an annual or special meeting of shareholders
and may not act by written consent, and
- special meetings of shareholders cannot be called by the shareholders.
Pogo's Bylaws establish advance notice procedures for the nomination, other
than by or at the direction of the board of directors or a committee of the
board, of candidates for election as directors and for matters to be brought
before an annual meeting of Pogo's shareholders. These procedures require a
shareholder to give timely written notice of any nomination for the election of
a director in writing to Pogo's corporate secretary prior to the meeting at
which directors are to be elected. Also, at an annual meeting, and subject to
any other applicable requirements, the only business that may be conducted is
generally business that is brought by or at the direction of Pogo's board of
directors or by or at the direction of a shareholder who has given Pogo's
corporate secretary timely written notice of that shareholder's intention to
bring that business before the meeting. For a notice to be timely, Pogo must
receive the notice at its principal executive offices not less than 80 days nor
more than 110 days prior to the meeting. However, if Pogo provides fewer than 90
days' notice or prior public disclosure of the meeting date, then the
shareholder's notice will only be considered timely if Pogo receives the notice
at its principal executive offices not later than the 10th day following the day
on which Pogo mails the notice or makes the public disclosure about the meeting
date. The notice must contain the information specified in the Bylaws.
Pogo is a Delaware corporation and is subject to Section 203 of the
Delaware corporations statute. In general, Section 203 prevents an "interested
stockholder" from engaging in a merger or other "business combination," as
defined in the statute, with a Delaware corporation for three years following
the date the person became an interested stockholder unless one of the following
circumstances exists:
- before the person became an interested stockholder, the board of
directors of the corporation approved the transaction in which the
interested stockholder became an interested stockholder or approved the
business combination; or
- upon consummation of the transaction that resulted in the interested
stockholder's becoming an interested stockholder, the interested
stockholder owns at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced; however, the 85%
calculation excludes stock held by directors who are also officers of the
corporation and by employee stock plans that do not provide employees
with the rights to determine confidentially whether shares held subject
to the plan will be tendered in a tender or exchange offer; or
- following the transaction in which the person became an interested
stockholder, the business combination is approved by the board of
directors of the corporation and authorized at a meeting of stockholders
by the affirmative vote of the holders of two-thirds of the outstanding
voting stock of the corporation not owned by the interested stockholder.
An "interested stockholder" is defined generally as a person owning 15% or more
of a corporation's outstanding voting stock. Section 203 also provides that
there are some other circumstances in which the restrictions described above do
not apply. The foregoing summary of Section 203 is not complete. For a complete
description, you should refer to Section 203.
ITEM 2. EXHIBITS.
No exhibits are filed as part of this registration statement on Form 8-A.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF SECTION 12 OF THE SECURITIES EXCHANGE
ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS AMENDMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THERETO DULY AUTHORIZED.
POGO PRODUCING COMPANY
DATE: NOVEMBER 1, 2001 BY: /s/ GERALD A. MORTON
-----------------------------------
GERALD A. MORTON
VICE PRESIDENT -- LAW,
CHIEF REGULATORY OFFICER
AND CORPORATE SECRETARY