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As filed with the Securities and Exchange Commission on June 16, 1998
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRIGHAM EXPLORATION COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 75-2692967
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
6300 BRIDGE POINT PARKWAY, BUILDING 2,
SUITE 500, AUSTIN, TEXAS 78730
(Address of principal executive offices) (Zip Code)
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1997 INCENTIVE PLAN
OF BRIGHAM EXPLORATION COMPANY
(Full title of the Plan)
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Ben M. Brigham Copy to:
Chief Executive Officer, President Joe Dannenmaier
and Chairman of the Board Thompson & Knight,
Brigham Exploration Company A Professional Corporation
6300 Bridge Point Parkway, Building 2, Suite 500 1700 Pacific Avenue
Austin, Texas 78730 Suite 3300
(Name and address of agent for service) Dallas, Texas 75201
(214) 969-1700
(512) 427-3300
(Telephone number, including
area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Title of securities to be Amount to be Proposed maximum offering Proposed maximum Amount of
registered registered(1) price per share(2) aggregate offering price(2) registration fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock par value 1,588,169 $10.91 $17,326,923 $5,111
$.01 per share ............. shares
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</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, shares issuable upon
any stock split, stock dividend or similar transaction with respect to
these shares are also being registered hereunder.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form
S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(1) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998.
(2) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(3) The Company's Current Report on Form 8-K (Date of Event: November
12, 1997) dated January 23, 1998.
(4) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1997.
(5) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A (Registration Statement No.
000-22433), including any amendment or report filed for the
purpose of updating such description.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
In accordance with Section 102(b)(7) of the Delaware General Corporation
Law ("DGCL"), the Company's Certificate of Incorporation includes a provision
that, to the fullest extent permitted by law, eliminates the personal liability
of members of its Board of Directors to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director. Such provision does
not eliminate or limit the liability of a director (1) for any breach of a
director's duty of loyalty to the Company or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of a law, (3) for paying an unlawful dividend or approving an illegal
stock repurchase (as provided in Section 174 of the DGCL) or (4) for any
transaction from which the director derived an improper personal benefit.
Under Section 145 of the DGCL, the Registrant has the power to indemnify
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 (other than an
action by or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of any corporation,
partnership, joint venture, trust or other enterprise, reasonably incurred in
connection with such action,
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suit or proceeding. The power to indemnify applies only if the person acted in
good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe the person's
conduct was unlawful.
In the case of an action by or in the right of the Registrant, no
indemnification may be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Registrant unless
and only to the extent that the court of chancery or the court in which such
action or suit was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Section 145 of the DGCL further
provides that to the extent a director or officer of the Registrant has been
successful in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter therein, that person shall be
indemnified against expenses (including attorney's fees) actually and reasonably
incurred in connection therewith.
The Registrant also has the power to purchase and maintain insurance on
behalf of any person covering any liability incurred in that person's capacity
as a director, officer, employee or agent of the corporation, or arising out of
that person's status as such, whether or not the corporation would have the
power to indemnify against the liability.
The Certificate of Incorporation and Bylaws provide that the Registrant
will indemnify its officers and directors and former officers and directors
against any expenses, judgments or settlement payments sustained or paid by such
persons as a result of having acted as an officer or director of the Registrant,
or, at the request of the Registrant, as an officer, director, agent or employee
of another business entity. The Certificate of Incorporation and Bylaws further
provide that the Registrant may, by action of its Board of Directors, provide
indemnification to employees and agents of the Registrant, individually or as a
group, with the same scope and effect as the indemnification of directors and
officers.
The Company has entered into an Indemnity Agreement with each of its
executive officers, which provides for the indemnification in certain instances
against liability and expenses incurred in connection with proceedings brought
by or in the right of the Company or by third parties by reason of a person
serving as an officer or director of the Company.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration
Statement:
4.1 1997 Incentive Plan of Brigham Exploration Company (filed as
Exhibit 10.9 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-22491)) and incorporated herein by
reference.
5.1 Opinion of Thompson & Knight, A Professional Corporation.
23.1 Consent of Thompson & Knight, A Professional Corporation (included
in the opinion of Thompson & Knight, P.C. filed herewith as
Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
24.1 Power of Attorney (included on signature page of this Registration
Statement).
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Item 9. Undertakings.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Austin and State of Texas on the 28th day of May,
1998.
BRIGHAM EXPLORATION COMPANY
By: /s/ Ben M. Brigham
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Ben M. Brigham, Chief Executive
Officer, President and Chairman
of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of Brigham Exploration Company, a Delaware corporation, which is filing
a Registration Statement on Form S-8 with the Securities and Exchange Commission
under the provisions of the Securities Act of 1933, as amended, hereby
constitute and appoint Ben M. Brigham and Anne L. Brigham, and each of them, his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any or all amendments to the
Registration Statement, and all other documents in connection therewith to be
filed with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact as agents or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Ben M. Brigham Chief Executive Officer, May 28, 1998
- -------------------------------------- President and Chairman of
Ben M. Brigham the Board (principal
executive officer)
/s/ Anne L. Brigham Executive Vice President May 28, 1998
- -------------------------------------- and Director
Anne L. Brigham
/s/ Jon L. Glass Vice President - May 28, 1998
- -------------------------------------- Exploration and Director
Jon L. Glass
/s/ Craig M. Fleming Chief Financial Officer May 28, 1998
- -------------------------------------- (principal financial and
Craig M. Fleming accounting officer)
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Harold D. Carter Director May 28, 1998
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Harold D. Carter
/s/ Alexis M. Cranberg Director May 28, 1998
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Alexis M. Cranberg
/s/ Gary J. Milavec Director May 28, 1998
- --------------------------------------
Gary J. Milavec
/s/ Stephen P. Reynolds Director May 28, 1998
- --------------------------------------
Stephen P. Reynolds
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4.1 1997 Incentive Plan of Brigham Exploration Company (filed as
Exhibit 10.9 to the Registrant's Registration Statement on Form
S-1 (Registration Statement No. 333-22491)) and incorporated
herein by reference.
5.1 Opinion of Thompson & Knight, A Professional Corporation.
23.1 Consent of Thompson & Knight, A Professional Corporation (included
in the opinion of Thompson & Knight, P.C. filed herewith as
Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
24.1 Power of Attorney (included on signature page of this Registration
Statement).
</TABLE>
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Exhibit 5.1
(214) 969-1700
June 16, 1998
Brigham Exploration Company
6300 Bridge Point Parkway, Suite 500
Austin, Texas 78730
Re: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as counsel for Brigham Exploration Company, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of an aggregate of
1,588,169 shares of the Company's Common Stock, $.01 par value per share (the
"Shares"), for issuance under the Company's 1997 Incentive Plan (the "Plan").
We have participated in the preparation of the Company's Registration
Statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission, relating to the registration of the Shares under the
Securities Act.
In connection with the foregoing, we have examined the originals or
copies, certified or otherwise authenticated to our satisfaction, of the
resolutions of the Company's Board of Directors establishing the Plan, the
Registration Statement and such corporate records of the Company, certificates
of officers of the Company, and other instruments and documents as we have
deemed necessary to require as a basis for the opinion hereinafter expressed. As
to various questions of fact material to such opinion, we have, where relevant
facts were not independently established, relied upon statements of officers of
the Company whom we believe to be responsible.
Based upon the foregoing and in reliance thereon, we advise you that in
our opinion the Shares, when issued and delivered in accordance with the
provisions of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
THOMPSON & KNIGHT,
A Professional Corporation
By: /s/ Joe Dannenmaier
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Joe Dannenmaier, Attorney
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 6, 1998, which appears on page
F-2 of the 1997 Annual Report on Form 10-K of Brigham Exploration Company for
the year ended December 31, 1997.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Houston, Texas
June 15, 1998
