<PAGE>
As filed with the Securities and Exchange Commission on May 9, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
SPINNAKER EXPLORATION COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 76-0560101
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1200 SMITH STREET, SUITE 800
HOUSTON, TEXAS 77002
(Address of principal executive offices, including zip code)
______________________
1999 STOCK INCENTIVE PLAN
ADJUNCT STOCK OPTION PLAN
(Full title of the plans)
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 77002-6760
(713) 758-2222
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE AGGREGATE OFFERING REGISTRATION
PER SHARE (2) PRICE FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value......... 1,300,000 shares $16.36 $21,273,995 $5,617
- ------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value......... 21,920 shares $ 2.50 $ 54,800 $ 15
==================================================================================================================
</TABLE>
(1) This registration statement shall also cover any additional shares of
Common Stock which become issuable under the Plans 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 for those options granted and the average of the high and low
prices as reported by Nasdaq for those options not yet granted.
<PAGE>
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) our Annual Report on Form 10-K filed with the Securities and
Exchange Commission (the "Commission") pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") on March 3, 2000, which
contains audited financial statements for the fiscal year ended December 31,
1999, 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 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 hereby have been
sold or deregistering all securities then remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained in any other subsequently filed document that
also is or is deemed to be incorporated by reference herein 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 none of our directors shall be personally liable to us or our 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 us or our 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 (No. 333-83093), 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 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
2
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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 us 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, 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 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 our directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
--------
Unless otherwise indicated below as being incorporated by reference to another
filing of ours with the Commission, each of the following exhibits is filed
herewith:
3.1 Certificate of Incorporation of Spinnaker Exploration Company, as
amended (filed with the Commission as Exhibit 3.1 to our registration
statement on Form S-1 (No. 333-83093) and incorporated herein by
reference)
3.2 Restated Bylaws of Spinnaker Exploration Company (filed with the
Commission as Exhibit 3.2 to our 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 our registration statement on Form S-1 (No. 333-83093)
and incorporated herein by reference)
4.2 1999 Stock Incentive Plan (filed with the Commission as Exhibit 10.10
to our registration statement on Form S-1 (No. 333-83093) and
incorporated herein by reference)
4.3 Adjunct Stock Option Plan
5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of Arthur Andersen LLP
3
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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 of 1933 (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; and
(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.
4
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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 9th day of May, 2000.
By: /s/ JAMES M. ALEXANDER
----------------------
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
9th day of May, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<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
James M. Alexander Secretary (Principal Financial Officer)
/s/ JEFFREY C. ZARUBA
- ---------------------------------------------- Treasurer (Principal Accounting Officer)
Jeffrey C. Zaruba
/s/ BJARTE BRUHEIM
- ---------------------------------------------- Director
Bjarte Bruheim
/s/ SHELDON R. ERIKSON
- ---------------------------------------------- Director
Sheldon R. Erikson
/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>
5
<PAGE>
INDEX TO EXHIBITS
3.1 Certificate of Incorporation of Spinnaker Exploration Company, as amended
(filed with the Commission as Exhibit 3.1 to our registration statement on
Form S-1 (No. 333-83093) and incorporated herein by reference)
3.2 Restated Bylaws of Spinnaker Exploration Company (filed with the Commission
as Exhibit 3.2 to our 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 our registration statement on Form S-1 (No. 333-83093) and incorporated
herein by reference)
4.2 1999 Stock Incentive Plan (filed with the Commission as Exhibit 10.10 to
our registration statement on Form S-1 (No. 333-83093) and incorporated
herein by reference)
4.3 Adjunct Stock Option Plan
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)
6
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EXHIBIT 4.3
SPINNAKER EXPLORATION COMPANY
ADJUNCT STOCK OPTION PLAN
I. PURPOSE
The purpose of the SPINNAKER EXPLORATION COMPANY ADJUNCT STOCK OPTION PLAN
is to provide a means through which SPINNAKER EXPLORATION COMPANY, a Delaware
corporation, and its subsidiaries may attract able persons to serve as
directors, consultants, or advisors or to enter the employ of the Company or its
subsidiaries and to provide a means whereby those individuals upon whom the
responsibilities of the successful administration and management of the Company
and its subsidiaries rest, and whose present and potential contributions to the
welfare of the Company and its subsidiaries are of importance, can acquire and
maintain stock ownership, thereby strengthening their concern for the welfare of
the Company and its subsidiaries. A further purpose of the Plan is to provide
such individuals with additional incentive and reward opportunities designed to
enhance the profitable growth of the Company and its subsidiaries. Accordingly,
the Plan provides for granting options that do not constitute Incentive Stock
Options.
II. DEFINITIONS
The following definitions shall be applicable throughout the Plan unless
specifically modified by any paragraph:
(a) "AWARD" means, individually or collectively, any Option Award.
(b) "BOARD" means the Board of Directors of the Company.
(c) "CODE" means the Internal Revenue Code of 1986, as amended. Reference
in the Plan to any section of the Code shall be deemed to include any amendments
or successor provisions to such section and any regulations under such section.
(d) "COMMITTEE" means the Board or a committee of the Board that is
selected by the Board as provided in Paragraph IV(a).
(e) "COMMON STOCK" means the common stock, par value $.01 per share, of the
Company, or any security into which such Common Stock may be changed by reason
of any transaction or event of the type described in Paragraph VIII.
(f) "COMPANY" means Spinnaker Exploration Company, a Delaware corporation.
(g) "CONSULTANT" means any person who is not an employee and who is
providing advisory or consulting services to the Company or any parent or
subsidiary entity.
(h) "DIRECTOR" means an individual elected to the Board by the stockholders
of the Company or by the Board under applicable corporate law who is serving on
the Board on the date the Plan is adopted by the Board or is elected to the
Board after such date.
(i) An "EMPLOYEE" means any person (including a Director) in an employment
relationship with the Company or any parent or subsidiary entity.
(j) "FAIR MARKET VALUE" means, as of any specified date, the mean of the
high and low sales prices of the Common Stock (i) reported by the National
Market System of NASDAQ on that date or (ii) if the Common Stock is listed on a
national stock exchange, reported on the stock exchange composite tape on that
date; or, in either case, if no prices are reported on that date, on the last
preceding date on which such prices of the Common Stock are so reported.
7
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If the Common Stock is traded over the counter at the time a determination of
its fair market value is required to be made hereunder, its fair market value
shall be deemed to be equal to the average between the reported high and low or
closing bid and asked prices of Common Stock on the most recent date on which
Common Stock was publicly traded. In the event Common Stock is not publicly
traded at the time a determination of its value is required to be made
hereunder, the determination of its fair market value shall be made by the
Committee in such manner as it deems appropriate. Notwithstanding the foregoing,
the Fair Market Value of a share of Common Stock on the date of an initial
public offering of Common Stock shall be the offering price under such initial
public offering.
(k) "HOLDER" means an employee, Consultant, or Director who has been
granted an Award.
(l) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(m) "OPTION" means an Award granted under Paragraph VII of the Plan.
(n) "OPTION AGREEMENT" means a written agreement between the Company and a
Holder with respect to an Option.
(o) "PLAN" means the Spinnaker Exploration Company Adjunct Stock Option
Plan, as amended from time to time.
(p) "RULE 16B-3" means SEC Rule 16b-3 promulgated under the 1934 Act, as
such may be amended from time to time, and any successor rule, regulation or
statute fulfilling the same or a similar function.
(q) "STOCK APPRECIATION RIGHT" shall have the meaning assigned to such term
in Paragraph VII(c) of the Plan.
III. EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall become effective upon the date of its adoption by the Board.
No further Awards may be granted under the Plan after one year from the date the
Plan is adopted by the Board. The Plan shall remain in effect until all Options
granted under the Plan have been exercised or expired.
IV. ADMINISTRATION
(a) COMPOSITION OF COMMITTEE. The Plan shall be administered by the Board
and/or a committee of, and appointed by, the Board, comprised solely of two or
more outside Directors (within the meaning of the term "outside directors" as
used in section 162(m) of the Code and applicable interpretive authority
thereunder and within the meaning of "Non-Employee Director" as defined in Rule
16b-3).
(b) POWERS. Subject to the express provisions of the Plan, the Committee
shall have authority, in its discretion, to determine which employees,
Consultants, or Directors shall receive an Award, the time or times when such
Award shall be made and the number of shares to be subject to each Option Award.
In making such determinations, the Committee shall take into account the nature
of the services rendered by the respective employees, Consultants, or Directors,
their present and potential contribution to the Company's success and such other
factors as the Committee in its sole discretion shall deem relevant.
(c) ADDITIONAL POWERS. The Committee shall have such additional powers as
are delegated to it by the other provisions of the Plan. Subject to the express
provisions of the Plan, this shall include the power to construe the Plan and
the respective agreements executed hereunder, to prescribe rules and regulations
relating to the Plan, to determine the terms, restrictions and provisions of the
agreement relating to each Award and to make all other determinations necessary
or advisable for administering the Plan. The Committee may correct any defect
or supply any omission or reconcile any inconsistency in the Plan or in any
agreement relating to an Award in the manner and to the extent it shall deem
expedient to carry it into effect. The determinations of the Committee on the
matters referred to in this Paragraph IV shall be conclusive.
8
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V. SHARES SUBJECT TO THE PLAN AND GRANT OF OPTIONS
(a) SHARES SUBJECT TO THE PLAN AND AWARD LIMIT. Subject to adjustment in
the same manner as provided in Paragraph VIII with respect to shares of Common
Stock subject to Options then outstanding, the aggregate number of shares of
Common Stock that may be issued under the Plan shall not exceed 21,920 shares.
Shares shall be deemed to have been issued under the Plan only (i) to the extent
actually issued and delivered pursuant to an Award or (ii) to the extent an
Award is settled in cash. To the extent that an Award lapses or the rights of
its Holder terminate, any shares of Common Stock subject to such Award shall
again be available for the grant of an Award under the Plan.
(b) GRANT OF OPTIONS. The Committee may from time to time grant Options to
one or more employees, Consultants, or Directors determined by it to be eligible
for participation in the Plan in accordance with the terms of the Plan.
(c) STOCK OFFERED. Subject to the limitations set forth in Paragraph V(a),
the stock to be offered pursuant to the grant of an Award may be authorized but
unissued Common Stock or Common Stock previously issued and outstanding and
reacquired by the Company. Any of such shares which remain unissued and which
are not subject to outstanding Awards at the termination of the Plan shall cease
to be subject to the Plan but, until termination of the Plan, the Company shall
at all times make available a sufficient number of shares to meet the
requirements of the Plan.
VI. ELIGIBILITY
Awards may be granted only to persons who, at the time of grant, are
employees, Consultants, or Directors. An Award may be granted on more than one
occasion to the same person.
VII. STOCK OPTIONS
(a) OPTION PERIOD. The term of each Option shall be as specified by the
Committee at the date of grant.
(b) LIMITATIONS ON EXERCISE OF OPTION. An Option shall be exercisable in
whole or in such installments and at such times as determined by the Committee.
(c) OPTION AGREEMENT. Each Option shall be evidenced by an Option
Agreement in such form and containing such provisions not inconsistent with the
provisions of the Plan as the Committee from time to time shall approve. Each
Option Agreement shall specify the effect of termination of (i) employment, (ii)
the consulting or advisory relationship, or (iii) membership on the Board, as
applicable, on the exercisability of the Option. An Option Agreement may
provide for the payment of the option price, in whole or in part, by the
delivery of a number of shares of Common Stock (plus cash if necessary) having a
Fair Market Value equal to such option price. Moreover, an Option Agreement may
provide for a "cashless exercise" of the Option by establishing procedures
satisfactory to the Committee with respect thereto. Further, an Option
Agreement may provide for the surrender of the right to purchase shares under
the Option in return for a payment in cash or shares of Common Stock or a
combination of cash and shares of Common Stock equal in value to the excess of
the Fair Market Value of the shares with respect to which the right to purchase
is surrendered over the option price therefor ("Stock Appreciation Rights"), on
such terms and conditions as the Committee in its sole discretion may prescribe.
The terms and conditions of the respective Option Agreements need not be
identical.
(d) OPTION PRICE AND PAYMENT. The price at which a share of Common Stock
may be purchased upon exercise of an Option shall be determined by the
Committee. The Option or portion thereof may be exercised by delivery of an
irrevocable notice of exercise to the Company, as specified by the Committee.
The purchase price of the Option or portion thereof shall be paid in full in the
manner prescribed by the Committee.
(e) STOCKHOLDER RIGHTS AND PRIVILEGES. The Holder shall be entitled to all
the privileges and rights of a stockholder only with respect to such shares of
Common Stock as have been purchased under the Option and for which certificates
of stock have been registered in the Holder's name.
9
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VIII. RECAPITALIZATION OR REORGANIZATION
(a) NO EFFECT ON RIGHT OR POWER. The existence of the Plan and the Awards
granted hereunder shall not affect in any way the right or power of the Board or
the stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's or any
subsidiary's capital structure or its business, any merger or consolidation of
the Company or any subsidiary, any issue of debt or equity securities ahead of
or affecting Common Stock or the rights thereof, the dissolution or liquidation
of the Company or any subsidiary or any sale, lease, exchange or other
disposition of all or any part of its assets or business or any other corporate
act or proceeding.
(b) SUBDIVISION OR CONSOLIDATION OF SHARES; STOCK DIVIDENDS. The shares
with respect to which Options may be granted are shares of Common Stock as
presently constituted, but if, and whenever, prior to the expiration of an
Option theretofore granted, the Company shall effect a subdivision or
consolidation of shares of Common Stock or the payment of a stock dividend on
Common Stock without receipt of consideration by the Company, the number of
shares of Common Stock with respect to which such Option may thereafter be
exercised (i) in the event of an increase in the number of outstanding shares
shall be proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the number of
outstanding shares shall be proportionately reduced, and the purchase price per
share shall be proportionately increased. Any fractional share resulting from
such adjustment shall be rounded up to the next whole share.
(c) RECAPITALIZATIONS AND CORPORATE CHANGES. If the Company recapitalizes,
reclassifies its capital stock, or otherwise changes its capital structure (a
"recapitalization"), the number and class of shares of Common Stock covered by
an Option theretofore granted shall be adjusted so that such Option shall
thereafter cover the number and class of shares of stock and securities to which
the Holder would have been entitled pursuant to the terms of the
recapitalization if, immediately prior to the recapitalization, the Holder had
been the holder of record of the number of shares of Common Stock then covered
by such Option. If (i) the Company merges with or into any entity or is a party
to a consolidation, (ii) the Company sells, leases or exchanges or agrees to
sell, lease or exchange all or substantially all of its assets to any other
person or entity, (iii) the Company is to be dissolved and liquidated, (iv) any
person or entity, including a "group" as contemplated by Section 13(d)(3) of the
1934 Act, acquires or gains ownership or control (including, without limitation,
power to vote) of more than 50% of the outstanding shares of the Company's
voting stock (based upon voting power), or (v) as a result of or in connection
with a contested election of Directors, the persons who were Directors of the
Company before such election shall cease to constitute a majority of the Board
(each such event is referred to herein as a "Corporate Change"), no later than
(x) ten days after the approval by the stockholders of the Company of such
merger, consolidation, reorganization, sale, lease or exchange of assets or
dissolution or such election of Directors or (y) thirty days after a Corporate
Change of the type described in clause (iv), the Committee, acting in its sole
discretion without the consent or approval of any Holder, shall effect one or
more of the following alternatives, which alternatives may vary among individual
Holders and which may vary among Options held by any individual Holder: (1)
accelerate the time at which Options then outstanding may be exercised so that
such Options may be exercised in full for a limited period of time on or before
a specified date (before or after such Corporate Change) fixed by the Committee,
after which specified date all unexercised Options and all rights of Holders
thereunder shall terminate, (2) require the mandatory surrender to the Company
by selected Holders of some or all of the outstanding Options held by such
Holders (irrespective of whether such Options are then exercisable under the
provisions of the Plan) as of a date, before or after such Corporate Change,
specified by the Committee, in which event the Committee shall thereupon cancel
each such Option and pay or cause to be paid to each Holder the securities or
other property (including, without limitation, cash) referred to in clause (4)
below with respect to the shares subject to such Option in exchange for payment
by such Holder of the exercise price(s) under such Option for such shares, (3)
make such adjustments to Options then outstanding as the Committee deems
appropriate to reflect such Corporate Change (provided, however, that the
Committee may determine in its sole discretion that no adjustment is necessary
to Options then outstanding), or (4) provide that the number and class of shares
of Common Stock covered by an Option theretofore granted shall be adjusted so
that such Option shall thereafter cover the number and class of shares of stock
or other securities or property (including, without limitation, cash) to which
the Holder would have been entitled pursuant to the terms of the agreement of
merger, consolidation or sale of assets and dissolution if, immediately prior to
such merger, consolidation or sale of assets and dissolution, the Holder had
been the holder of record of the number of shares of Common Stock then covered
by such Option. Notwithstanding the foregoing, if (A) the Company is involved
in a merger or consolidation and, immediately after giving effect to such merger
or consolidation, less than 50% of the total voting power of the outstanding
voting stock of the surviving or resulting entity and of the parent company of
the surviving or resulting
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entity is then "beneficially owned" (within the meaning of Rule 13d-3 under the
1934 Act) in the aggregate by the stockholders of the Company immediately prior
to such merger or consolidation or (B) any person or entity, including a "group"
as contemplated by Section 13(d)(3) of the 1934 Act, acquires or gains ownership
or control (including, without limitation, power to vote) of more than 50% of
the outstanding shares of the Company's voting stock (based upon voting power),
then, except as provided in any Award agreement, (I) outstanding Awards shall
immediately vest and become exercisable or satisfiable, as applicable, and (II)
any such Award that is an Option shall continue to be exercisable for the
remainder of the applicable Option term unless the Committee has determined, in
its sole discretion, to take the action described in clause (1) or (2) above
with respect to such Option. The provisions contained in this Subparagraph shall
not terminate any rights of the Holder to further payments pursuant to any other
agreement with the Company following a Corporate Change.
(d) OTHER CHANGES IN THE COMMON STOCK. In the event of changes in the
outstanding Common Stock by reason of recapitalizations, reorganizations,
mergers, consolidations, combinations, split-ups, split-offs, spin-offs,
exchanges or other relevant changes in capitalization or distributions to the
holders of Common Stock occurring after the date of the grant of any Award and
not otherwise provided for by this Paragraph VIII, such Award and any agreement
evidencing such Award shall be subject to adjustment by the Committee at its
discretion as to the number and price of shares of Common Stock or other
consideration subject to such Award. In the event of any such change in the
outstanding Common Stock or distribution to the holders of Common Stock, the
aggregate number of shares available under the Plan and the maximum number of
shares that may be subject to Awards granted to any one individual may be
appropriately adjusted by the Committee, whose determination shall be
conclusive.
(e) STOCKHOLDER ACTION. Any adjustment provided for in the above
Subparagraphs shall be subject to any required stockholder action.
(f) NO ADJUSTMENTS UNLESS OTHERWISE PROVIDED. Except as hereinbefore
expressly provided, the issuance by the Company of shares of stock of any class
or securities convertible into shares of stock of any class, for cash, property,
labor or services, upon direct sale, upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, and in any case whether or not
for fair value, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of shares of Common Stock subject to Awards
theretofore granted or the purchase price per share, if applicable.
IX. AMENDMENT AND TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with respect
to any shares of Common Stock for which Awards have not theretofore been
granted. The Board shall have the right to alter or amend the Plan or any part
thereof from time to time; provided that no change in any Award theretofore
granted may be made which would impair the rights of the Holder without the
consent of the Holder, and provided, further, that the Board may not, without
approval of the stockholders, amend the Plan to (a) increase the maximum
aggregate number of shares that may be issued under the Plan or (b) change the
class of individuals eligible to receive Awards under the Plan.
X. MISCELLANEOUS
(a) NO RIGHT TO AN AWARD. Neither the adoption of the Plan nor any action
of the Board or of the Committee shall be deemed to give an employee,
Consultant, or Director any right to be granted an Option or any other rights
hereunder except as may be evidenced by an Option Agreement duly executed on
behalf of the Company, and then only to the extent and on the terms and
conditions expressly set forth therein. The Plan shall be unfunded. The
Company shall not be required to establish any special or separate fund or to
make any other segregation of funds or assets to assure the performance of its
obligations under any Award.
(b) NO EMPLOYMENT/MEMBERSHIP RIGHTS CONFERRED. Nothing contained in the
Plan shall (i) confer upon any employee or Consultant any right with respect to
continuation of employment or of a consulting or advisory relationship with the
Company or any subsidiary or (ii) interfere in any way with the right of the
Company or any subsidiary to terminate his or her employment or consulting or
advisory relationship at any time. Nothing contained in the Plan shall confer
upon any Director any right with respect to continuation of membership on the
Board.
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(c) OTHER LAWS; WITHHOLDING. The Company shall not be obligated to issue
any Common Stock pursuant to any Award granted under the Plan at any time when
the shares covered by such Award have not been registered under the Securities
Act of 1933, as amended, and such other state and federal laws, rules and
regulations as the Company or the Committee deems applicable and, in the opinion
of legal counsel for the Company, there is no exemption from the registration
requirements of such laws, rules and regulations available for the issuance and
sale of such shares. No fractional shares of Common Stock shall be delivered,
nor shall any cash in lieu of fractional shares be paid. The Company shall have
the right to deduct in connection with all Awards any taxes required by law to
be withheld and to require any payments required to enable it to satisfy its
withholding obligations.
(d) NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Company or any subsidiary from taking any
corporate action which is deemed by the Company or such subsidiary to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any Award made under the Plan. No employee,
Consultant, Director, beneficiary or other person shall have any claim against
the Company or any subsidiary as a result of any such action.
(e) RESTRICTIONS ON TRANSFER. An Award shall not be transferable otherwise
than (i) by will or the laws of descent and distribution, (ii) pursuant to a
qualified domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder, or (iii) with the consent of the Committee.
(f) GOVERNING LAW. THE PLAN SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE.
(g) TERMS OF OPTION AWARD. As to each Award hereunder, the terms of the
Plan shall be subject to the terms set forth in the Option Agreement.
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EXHIBIT 5.1
[LETTERHEAD OF VINSON & ELKINS APPEARS HERE]
May 9, 2000
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 1,300,000 shares of
common stock, par value $.01 per share (the "Common Stock") pursuant to the
Spinnaker Exploration Company 1999 Stock Incentive Plan (the "1999 Plan") and
the offer and sale of 21,920 shares of Common Stock pursuant to the Spinnaker
Exploration Company Adjunct Stock Option Plan (the "Adjunct Plan"). The shares
of Common Stock of the Company that are to be issued under the 1999 Plan and the
Adjunct Plan are collectively referred to herein as the "Shares."
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, 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 1999 Plan and the Adjunct 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 February 23, 2000,
included in the Annual Report of Spinnaker Exploration Company on Form 10-K for
the year ended December 31, 1999, and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
May 9, 2000
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