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As filed with the Securities and Exchange Commission on September 28, 1999
Registration No. 333-83093
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 5
to
FORM S-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Spinnaker Exploration Company
(Exact name of registrant as specified in its charter)
DELAWARE 1311 76-0560101
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction Classification Code Number) Identification No.)
of incorporation or
organization)
1200 Smith Street, Suite 800
Houston, Texas 77002
(713) 759-1770
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
James M. Alexander
Vice President, Chief Financial Officer and Secretary
Spinnaker Exploration Company
1200 Smith Street, Suite 800
Houston, Texas 77002
(713) 759-1770
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Scott N. Wulfe Walter J. Smith
Vinson & Elkins L.L.P. Baker & Botts, L.L.P.
2300 First City Tower 3000 One Shell Plaza
1001 Fannin 910 Louisiana
Houston, Texas 77002 Houston, Texas 77002
(713) 758-2222 (713) 229-1234
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this registration statement becomes effective.
If any of the securities registered on this form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
section 8(a), may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The expenses of this offering are estimated to be as follows:
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Securities and Exchange Commission registration fee................. $ 46,037
NASD filing fee..................................................... 17,060
NASDAQ listing fee.................................................. 95,000
Legal fees and expenses............................................. 250,000
Accounting fees and expenses........................................ 400,000
Engineering fees and expenses....................................... 60,000
Blue Sky fees and expenses (including legal fees)................... 10,000
Printing expenses................................................... 115,000
Transfer Agent fees................................................. 5,000
Miscellaneous....................................................... 1,903
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TOTAL............................................................. $1,000,000
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* To be provided by amendment.
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("DGCL") provides that a
corporation may 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 whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he 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 his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any
such person serving in any such capacity who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees) actually and reasonably incurred in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or such other court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
Spinnaker's bylaws provide that indemnification shall be to the fullest
extent permitted by the DGCL for all current or former directors or officers of
Spinnaker.
As permitted by the DGCL, the certificate of incorporation provides that
directors of Spinnaker shall have no personal liability to Spinnaker or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except (1) for any breach of the director's duty of loyalty to Spinnaker or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) for
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unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided under Section 174 of the DGCL or (4) for any transaction from which a
director derived an improper personal benefit.
In addition, we have entered into indemnification agreements with our
directors and officers containing provisions which are in some respects broader
than the specific indemnification provisions contained in the Delaware General
Corporation Law. The indemnification agreements may require us, among other
things, to indemnify our directors against certain liabilities that may arise
by reason of their status or service as directors, other than liabilities
arising from willful misconduct of culpable nature, to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified, and to obtain directors' insurance if available on reasonable
terms.
Howard H. Newman and Jeffrey A. Harris, each directors of Spinnaker and
Managing Directors and members of E.M. Warburg, Pincus & Co., LLC and general
partners of Warburg, Pincus & Co., are indemnified by affiliates of E.M.
Warburg, Pincus & Co., LLC and Warburg, Pincus & Co. against certain
liabilities that they may incur as a result of their serving as a director of
Spinnaker.
The Underwriting Agreement that Spinnaker will enter into with respect to
the offer and sale of the common stock covered by this registration statement
will contain certain provisions for the indemnification of directors and
officers of Spinnaker and the underwriters, as applicable, against civil
liabilities under the Securities Act.
Item 15. Recent Sales of Unregistered Securities
The Registrant has sold and issued (without payment of any selling
commission to any person) the following securities since January 6, 1998:
(1) On January 16, 1998, we issued 958,921 shares of preferred stock and
3,960,000 shares of common stock in connection with our conversion from a
limited liability company to a corporation in exchange for, directly or
indirectly, an equal number of preferred and common units of the limited
liability company.
(2) From January 1998 to September 1998, we issued 2,051,969 shares of
preferred stock for $25.00 per share to a total of two accredited investors
in exchange for cash.
(3) From January 1998 to September 1998, we issued a total of 20,030
shares of preferred stock for $25.00 per share to a total of 26 of our
employees in exchange for cash and notes.
(4) From December 31, 1998 to June 30, 1999, we issued a total of 75,000
shares of common stock to a total of two accredited investors in
consideration for the guaranteeing of our indebtedness.
(5) On June 30, 1999, we issued 1,000,000 shares of common stock to one
accredited investor in consideration for entering into an amendment to our
seismic data agreement.
The sale of the above securities described in Item 15 were exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits:
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+1.1 --Form of Underwriting Agreement
+3.1 --Certificate of Incorporation of Spinnaker, as amended
+3.2 --Restated Bylaws of Spinnaker
+4.1 --Specimen Common Stock certificate
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5.1 --Opinion of Vinson & Elkins L.L.P.
+10.1 --Second Amended and Restated Data Contribution Agreement between
Petroleum Geo-Services ASA, Seismic Energy Holdings, Inc., Spinnaker
Exploration Company, L.L.C. and Spinnaker dated June 30, 1999
+10.2 --Amended and Restated 1998 Spinnaker Stock Option Plan
+10.3 --Amended and Restated Stockholders Agreement by and among Spinnaker,
Warburg, Pincus Ventures, Petroleum Geo-Services, Roger L. Jarvis,
James M. Alexander, William D. Hubbard, Kelly M. Barnes and the other
stockholders of Spinnaker (including the Registration Rights Agreement
as Exhibit A to the Stockholders Agreement)
+10.4 --Credit Agreement for an $85 million credit facility between Spinnaker
and Credit Suisse First Boston, Bank of Montreal and Bank of America
dated September 30, 1998, as amended
+10.5 --Form of Lock-Up Agreement
+10.6 --Employment Agreement between Spinnaker and Roger L. Jarvis dated
December 20, 1996, as amended
+10.7 --Employment Agreement between Spinnaker and James M. Alexander dated
December 20, 1996, as amended
+10.8 --Employment Agreement between Spinnaker and William D. Hubbard dated
February 24, 1997, as amended
+10.9 --Employment Agreement between Spinnaker and Kelly M. Barnes dated
February 24, 1997, as amended
+10.10 --1999 Spinnaker Stock Incentive Plan
+10.11 --1999 Spinnaker Employee Stock Purchase Plan
+10.12 --Form of Indemnification Agreement
+21.1 --Subsidiaries of Spinnaker Exploration Company
+23.1 --Consent of Arthur Andersen LLP
+23.2 --Consent of Ryder Scott Company, L.P.
23.3 --Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1 hereto)
+23.4 --Consent of Director Appointee
+24.1 --Power of Attorney (included on the signature page to this
Registration Statement)
+27 --Financial Data Schedule
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+ Previously filed
(b) Consolidated Financial Statement Schedules:
All schedules are omitted because the required information is inapplicable
or the information is presented in the Consolidated Financial Statements or
related notes.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
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 Securities
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
Securities Act and will be governed by the final adjudication of such issue.
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The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 5 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Houston, State of Texas, on the 28th day of September, 1999.
SPINNAKER EXPLORATION COMPANY
By: /s/ Roger L. Jarvis
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Name: Roger L. Jarvis
Title: Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 5 to Registration Statement has been signed below by the
following persons in the capacities and on the 28th day of September, 1999.
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Signature Title
/s/ Roger L. Jarvis Chairman, President and Chief Executive
Officer and Director (Principal
- ----------------------------------- Executive Officer)
Roger L. Jarvis
/s/ James M. Alexander Vice President, Chief Financial Officer
and Secretary (Principal Financial and
- ----------------------------------- Accounting Officer)
James M. Alexander
* Director
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Reidar Michaelsen
* Director
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Bjarte Bruheim
* Director
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Howard H. Newman
* Director
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Jeffrey A. Harris
*By: /s/ Roger L. Jarvis
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Roger L. Jarvis
as attorney-in-fact
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EXHIBIT 5.1
Writer's Phone: 713-758-2750 E-mail: [email protected]
Writer's Fax: 713-615-5637 Web: www.velaw.com
September 28, 1999
Spinnaker Exploration Company
1200 Smith Street, Suite 800
Houston, Texas 77002
Ladies and Gentlemen:
We are acting as counsel for Spinnaker Exploration Company, a Delaware
corporation (the "Company"), in connection with the proposed offer and sale by
the Company to the Underwriters pursuant to the prospectus forming a part of a
Registration Statement on Form S-1, File No. 333-83093, originally filed with
the Securities and Exchange Commission (the "S.E.C.") on July 16, 1999 (such
Registration Statement, as amended at the effective date thereof being referred
to herein as the "Registration Statement"), of an aggregate of 8,000,000 shares
of Common Stock, par value $.01 per share ("Common Stock"), of the Company,
together with a maximum of 1,200,000 shares of Common Stock which may be sold by
the Company to the Underwriters pursuant to the over-allotment option provided
in the Underwriting Agreement. Capitalized terms used but not defined herein
have the meanings set forth in the Underwriting Agreement, a form of which has
been filed as an exhibit to the Registration Statement.
We are rendering this opinion as of the time the Registration Statement
becomes effective in accordance with Section 8(a) of the Securities Act.
In connection with the opinion expressed herein, we have assumed that the
Registration Statement will have become effective and the shares of Common Stock
covered by this opinion will be issued and sold in compliance with applicable
federal and state securities laws and in the manner described in the
Registration Statement and the applicable prospectus.
In connection with the opinion expressed herein, we have examined, among
other things, the Certificate of Incorporation, as amended, and the Restated
Bylaws of the Company, the records of corporate proceedings that have occurred
prior to the date hereof with respect to such offering, the Registration
Statement and the form of Underwriting Agreement. We have also reviewed such
questions of law as we have deemed necessary or appropriate.
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Spinnaker Exploration Company
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September 28, 1999
Based upon the foregoing, we are of the opinion that the shares of Common
Stock proposed to be issued and sold by the Company to the Underwriters have
been validly authorized for issuance and delivery thereof as set forth in the
Registration Statement and when so issued and delivered, will be validly issued,
fully paid and nonassessable.
This opinion is limited in all respects to the corporation laws of the
State of Delaware.
We hereby consent to the statements with respect to us under the heading
"Legal Matters" in the prospectus forming a part of the Registration Statement
and to the filing of this opinion as an exhibit to the Registration Statement
and the incorporation by reference of this opinion, but we do not thereby admit
that we are within the class of persons whose consent is required under the
provisions of the Securities Act of 1933, as amended, or the rules and
regulations of the S.E.C. issued thereunder.
Very truly yours,
Vinson & Elkins L.L.P.
