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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 27, 1999
Registration 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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SPINNAKER EXPLORATION COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 76-0560101
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1200 SMITH STREET, SUITE 800
HOUSTON, TEXAS 77002
(Address of principal executive offices, including zip code)
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AMENDED AND RESTATED 1998 STOCK OPTION PLAN
(Full title of the plan)
JAMES M. ALEXANDER
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
SPINNAKER EXPLORATION COMPANY
1200 SMITH STREET, SUITE 800
HOUSTON, TEXAS 77002
(Name and address of agent for service)
(713) 759-1770
(Telephone number, including area code, of agent for service)
Copies to:
Scott N. Wulfe
Vinson & Elkins L.L.P.
2300 First City Tower, 1001 Fannin
Houston, Texas 77002
(713) 758-2222
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<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================
PROPOSED
TITLE OF MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par
value...................... 1,520,608 shares $ 5.00 $ 7,603,040 $2,114
========================================================================================================
Common Stock, $0.01 par
value...................... 1,152,634 shares $15.625 $18,009,906 $5,007
========================================================================================================
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered pursuant to
this Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the receipt
of consideration which results in an increase in the number of the Registrant's
outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee. Specifically, the
offering price per share is based on the price at which the options may be
exercised.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following are incorporated by reference and made a part of this
prospectus: (i) the Spinnaker Prospectus dated September 28, 1999 filed with
the Securities & Exchange Commission (the "Commission") by Spinnaker on
September 29, 1999 pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Securities Act"); and (ii) the Description of our Capital Stock
contained in our Registration Statement on Form 8-A filed with the Commission
under Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") and
declared effective on September 28, 1999, including any amendments or reports
filed for the purpose of updating such description.
All documents we have filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act subsequent to the effective date of this Registration
Statement, prior to the filing of a post-effective amendment to this
Registration Statement indicating that all securities offered by this prospectus
have been sold or deregistering all securities then remaining unsold, shall be
deemed to be incorporated by reference of this prospectus and to be a part of
this prospectus from the date of filing of such documents. Any statement
contained herein or in any document incorporated or deemed to be incorporated by
reference shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this
prospectus or in any other subsequently filed document which also is or is
deemed to be incorporated by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed to constitute a
part of this Registration Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Certificate of Incorporation, as amended, a copy of which is filed as
Exhibit 3.1 to our Registration Statement on Form S-1 (No. 333-83093), provides
that no director of Spinnaker shall be personally liable to Spinnaker or its
stockholders for monetary damages for any breach of fiduciary duty by such a
director as a director, except for liability to the extent provided by
applicable law (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 unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
under Section 174 of the Delaware General Corporation Law ("DGCL") or (4) for
any transaction from which the director derived an improper personal benefit.
Article VI of our Restated Bylaws, a copy of which is filed as Exhibit 3.2 to
our Registration Statement on Form S-1, provides that all current and former
officers and directors shall be indemnified to the fullest extent permitted by
law.
Section 145 of the DGCL authorizes a corporation 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, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation),
by reason of the fact that the person is or was an officer or director of such
corporation, or is or was serving at the request of that 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 such person 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
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respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. A Delaware corporation may indemnify past or present
officers and directors of that corporation or of another corporation or other
enterprise at the former corporation's request, in an action by or in the right
of the corporation to procure a judgment in its favor under the same conditions,
except that no indemnification is permitted without judicial approval if that
person is adjudged to be liable to the corporation. Where an officer or director
is successful on the merits or otherwise in defense of any action referred to
above, or in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify him against the
expenses (including attorneys' fees) which he actually and reasonably incurred
in connection therewith. Section 145 further provides that any indemnification
shall be made by the corporation only as authorized in each specific case upon a
determination by the (i) stockholders, (ii) Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding or (iii) independent counsel if a quorum of disinterested
directors so directs. Section 145 provides that indemnification pursuant to its
provision is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 145 of the DGCL also empowers us to purchase and maintain insurance on
behalf of any person who is or was an officer or director of Spinnaker against
liability asserted against or incurred by him in any such capacity, whether or
not we would have the power to indemnify such officer or director against such
liability under the provisions of Section 145.
In addition, Spinnaker has 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 DGCL. The
indemnification agreements may require us, among other things, to indemnify our
directors against 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 directors of Spinnaker.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to another
filing of the Company with the Commission, each of the following exhibits is
filed herewith:
3.1 Certificate of Incorporation of Spinnaker, as amended (filed with
the Commission as Exhibit 3.1 to Spinnaker's Registration Statement
on Form S-1 (No. 333-83093) and incorporated herein by reference)
3.2 Restated Bylaws of Spinnaker (filed with the Commission as Exhibit
3.2 to Spinnaker's Registration Statement on Form S-1 (No. 333-
83093) and incorporated herein by reference)
4.1 Specimen Common Stock certificate (filed with the Commission as
Exhibit 4.1 to Spinnaker's Registration Statement on Form S-1 (No.
333-83093) and incorporated herein by reference)
5.1 Opinion of Vinson & Elkins L.L.P.
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23.1 Consent of Arthur Andersen LLP
23.2 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page to this
registration statement)
UNDERTAKINGS
The undersigned 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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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;
(c) 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)(a) and (1)(b) 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 Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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 the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) 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 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 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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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 Houston, State of Texas, on the 26th day of October,
1999.
By: /s/ JAMES M. ALEXANDER
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James M. Alexander
Vice President, Chief Financial Officer
and Secretary
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Roger L. Jarvis and James M. Alexander or any of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and agent
or his 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
26th day of October, 1999.
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<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ ROGER L. JARVIS Chairman, President and
- --------------------------------------- Chief Executive Officer and Director
Roger L. Jarvis (Principal Executive Officer)
/s/ JAMES M. ALEXANDER Vice President, Chief Financial
- --------------------------------------- Officer and Secretary (Principal
James M. Alexander Financial and Accounting Officer)
/s/ BJARTE BRUHEIM Director
- ---------------------------------------
Bjarte Bruheim
/s/ JEFFREY A. HARRIS Director
- ---------------------------------------
Jeffrey A. Harris
/s/ MICHAEL E. MCMAHON Director
- ---------------------------------------
Michael E. McMahon
/s/ REIDAR MICHAELSEN Director
- ---------------------------------------
Reidar Michaelsen
/s/ HOWARD H. NEWMAN Director
- ---------------------------------------
Howard H. Newman
</TABLE>
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INDEX TO EXHIBITS
3.1 Certificate of Incorporation of Spinnaker, as amended (filed with the
Commission as Exhibit 3.1 to Spinnaker's Registration Statement on
Form S-1 (No. 333-83093) and incorporated herein by reference)
3.2 Restated Bylaws of Spinnaker (filed with the Commission as Exhibit 3.2 to
Spinnaker's Registration Statement on Form S-1 (No. 333-83093) and
incorporated herein by reference)
4.1 Specimen Common Stock certificate (filed with the Commission as Exhibit
4.1 to Spinnaker's Registration Statement on Form S-1 (No. 333-83093) and
incorporated herein by reference)
5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page to this registration
statement)
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EXHIBIT 5.1
[LETTERHEAD OF VINSON & ELKINS APPEARS HERE]
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
1001 FANNIN STREET
HOUSTON, TEXAS 77002-6760
TELEPHONE (713) 758-2222
FAX (713) 758-2346
October 27, 1999
Spinnaker Exploration Company
1200 Smith Street, Suite 800
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as counsel for Spinnaker Exploration Company, a Delaware
corporation (the "Company"), with respect to certain legal matters in connection
with the registration by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), of the offer and sale of 2,673,242 shares of
Common Stock, par value $.01 per share (the "Shares") pursuant to the Spinnaker
Amended and Restated 1998 Stock Option Plan (the "1998 Plan").
In connection with the foregoing, we have examined or are familiar with the
Certificate of Incorporation of the Company, as amended, the Restated Bylaws of
the Company, the corporate proceedings with respect to the issuance of the
Shares, and the Registration Statement on Form S-8 filed in connection with the
registration of the Shares (the "Registration Statement"), and such other
certificates, instruments and documents as we have considered necessary or
appropriate for purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and, when the Shares are issued in accordance with the
provisions of the 1998 Plan, will be validly issued and fully paid and non-
assessable.
The foregoing opinion is limited to the laws of the United States of
America and the State of Texas and to the general corporation law of the State
of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act and the rules and regulations thereunder.
Very truly yours,
/s/ Vinson & Elkins L.L.P.
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
April 13, 1999 included in Spinnaker Exploration Company's Form S-1
(Registration No. 333-83093) and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
October 25, 1999
