As filed with the Securities and Exchange Commission on August 7, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MIDCOAST ENERGY RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Nevada
(State or Other Jurisdiction ofIncorporation or Organization)
76-0378638
(I.R.S. EmployerIdentification No.)
1100 Louisiana, Suite 2950
Houston, Texas 77002
(Address, including Zip Code, of Registrant's Principal Executive Offices)
MIDCOAST ENERGY RESOURCES, INC.
1996 INCENTIVE STOCK PLAN
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plans)
Name, Address and Telephone
Number of Agent for Service:
Dan C. Tutcher
President and Chief Executive Officer
Midcoast Energy Resources, Inc.
1100 Louisiana, Suite 2950
Houston, Texas 77002
Phone: (713) 650-8900
Fax: (713) 650-3232
Copy of communications to:
Robert G. Reedy
Porter & Hedges, L.L.P.
700 Louisiana
Houston, Texas 77002-2764
Phone: (713) 226-0600
Fax: (713) 228-1331
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered - Common Stock, par value $.01 per share
Amount to be Registered(1) - 280,000
Proposed Maximum Offering Price per Share(2) - $18.19
Proposed Maximum Aggregate Offering Price(2) - $5,093,200.
Amount of Registration Fee - $1,543.39
(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate
number of shares of Common Stock issuable
as a result of the anti-dilution provision of the Midcoast Energy
Resources, Inc. 1996 Incentive Stock Plan (the "Incentive Plan") and
the 1997 Non-Employee Director Stock Option Plan (the "Director Plan"
and, together with the Incentive Plan, the "Plans").
(2) Pursuant to Rule 457(c), the registration fee is calculated on the basis
of the average of the high and low price of the Common Stock on the
American Stock Exchange Composite Tape on July 31, 1997, $18.19 per share.
Pursuant to Rule 457(h), the registration fee is calculated with respect
to the maximum number of the registrant's securities issuable under
the Plans.<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3.INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Midcoast Energy Resources, Inc., a Nevada corporation (the "Company"),
hereby incorporates by reference into this registration statement (the
"Registration Statement") (i) the contents of its Prospectus, as filed with
the Securities and Exchange Commission (the "Commission") on June 27, 1997,
pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the
"Securities Act") and (ii) the Company's quarterly report on Form 10-QSB for
the fiscal quarter ended March 31, 1997, filed with the Commission on May 15,
1997, as supplemented by Form 10-QSB/A, filed with the Commission on May 22,
1997. The Company's Prospectus filed on June 27, 1997 also contains a
description of the Company's securities registered under Section 12 of the
Securities Exchange Act of 1934 (the "Exchange Act").
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
filing date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement 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 such
documents. The Company will provide without charge to each participant
in each of the Company's 1996 Incentive Stock Plan and the 1997 Non-Employee
Director Stock Option Plan, upon written or oral request of such person, a copy
(without exhibits, unless such exhibits are specifically incorporated by
reference) of any or all of the documents incorporated by reference pursuant
to this Item 3.
ITEM 4.DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5.INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's articles of incorporation ("Articles") contain indemnification
provisions which are consistent with those contained in the General Corporation
Law of Nevada (the "NGCL"). Accordingly, the Company generally may
indemnify its directors and officers against liabilities and expenses to which
they may become subject or which they may incur as a result of being or having
been a director, officer, employee or agent of the Company.
The following discussion of the NGCL and the Company's Articles and bylaws
of the Company ("Bylaws") is not intended to be exhaustive and is qualified in
its entirety by the NGCL and such Articles and Bylaws.
Limitation on Director Liability. As permitted by Section 78.037 of the
NGCL, the Company's Articles eliminate the liability of its directors and
officers to the Company and its stockholders for damages for breach of fiduciary
duty, except for (i) acts or omissions which involve intentional misconduct,
fraud of a knowing violation of law, or (ii) for the payment of dividends in
violation of the NGCL. To the extent that this provision limits the remedies
of the Company and its stockholders to equitable remedies it might reduce the
likelihood of derivative litigation and discourage the Company's management or
stockholders from initiating litigation against its directors or officers for
breach of their fiduciary duties. Additionally, equitable remedies may not be
effective in many situations. If a stockholder's only remedy is to enjoin the
completion of an action, such remedy would be ineffective if the stockholder
does not become aware of a transaction or event until after it has been
completed. In such a situation, it is possible that the Company and
its stockholders would have no effective remedy against the directors and
officers.
Indemnification. The NGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party, by reason of
the fact that such person was an officer or director of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, to (x) any action or suit by or in the right of the
corporation against expenses, including amounts paid in settlement and
attorneys' fees, actually and reasonably incurred, in connection with the
defense or settlement believed to be in, or not opposed to, the best interests
of the corporation, except that indemnification may not be made for any
claim, issue or matter as to which such a person has been adjudged by a court
of competent jurisdiction to be liable to the corporation or for amounts paid
in settlement to the corporation and (y) any other action or suit or proceeding
against expenses, including attorneys' fees, judgments, fines and amounts
paid in settlement, actually and reasonably incurred, if he or she acted in
good faith and in a manner which he or she reasonably believed to be in, or not
opposed to, reasonable cause to believe his or her conduct was unlawful. To
the extent that a director, officer, employee or agent has been "successful on
the merits or otherwise" the corporation must indemnify such person. The
articles of incorporation or bylaws may provide that the expenses of officers
and directors incurredin defending any such action must be paid as incurred and
in advance of the final disposition of such action. The NGCL
also permits the Registrant to purchase and maintain insurance on behalf of the
Registrant's directors and officers against any liability arising out of their
status as such, whether or not the Registrant would have the power to indemnify
him against such liability. These provisions may be sufficiently broad to
indemnify such persons for liabilities arising under the Securities Act.
The Company's Articles and Bylaws provide that the Company shall, to the
fullest extent not prohibited by applicable law, indemnify any director or
officer of the Company in connection with certain actions, suits or
proceedings, against expenses, including attorney's fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred. The Company is
also required to pay any expenses incurred by a director or officer in
defending such an action, in advance of the final disposition of such action.
The Company's Articles and Bylaws further provide that, by resolution of the
Board, such benefits may be extended to employees, agents or other
representatives of the Company. In addition, the Company's Articles and Bylaws
provide that all rights to indemnification and advancement of expenses are
deemed to arise out of a contract between the Company and each person to be
indemnified which may be evidenced by a separate contract between the
Company and each such person.
The NGCL provides that a corporation's articles of incorporation may contain
a provision which eliminates or limits the personal liability of a director
or officer to the corporation or its stockholders for damages for breach of
fiduciary duty as a director or officer, provided that such a provision must
not eliminate or limit the liability of a director or officer
for: (a) acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law; or (b) the payment of illegal distributions. The
Company's Articles include a provision eliminating the personal liability of
directors for breach of fiduciary duty except that such provision will not
eliminate or limit any liability which may not be so eliminated or limited
under applicable law.
The Company's Bylaws provide that the Registrant may maintain insurance, at
its expense, to protect itself and any of its directors, officers, employees or
agents or any person serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against any expense, liability or loss, whether or
not the Registrant would have the power to indemnify such person against such
expense, liability or loss under the NGCL.
Pursuant to certain indemnity agreements executed by each current director
and executive officer, the Company must indemnify, defend and hold harmless its
directors and officers from and against any loss, liability or claim arising
out of or relating to their capacities as such. There is in effect for the
Company an insurance policy providing directors and officers with
indemnification, subject to certain exclusions and to the extent not otherwise
indemnified by the Company, against loss (including expenses incurred in the
defense of actions, suits or proceedings in connection therewith) arising from
any negligent act, error, omission or breach of duty while acting in their
capacity as directors and officers of the Company. The policy also reimburses
the Company for liability incurred in the indemnification of its directors and
officers.
Insofar as indemnification for liabilities arising out of the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, the Company has been informed 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.
ITEM 7.EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8.EXHIBITS
Exhibits
Description
4.1
Shareholder Agreement by and between Midcoast Energy Resources, Inc. and Bill G.
Bray dated April 30, 1994 (Incorporated by reference from Midcoast Form
10-KSB for the fiscal year ended December 31, 1994).
4.2
Shareholder Agreement by and between Midcoast Energy Resources, Inc. and Duane
S. Herbst dated April 30, 1994 (Incorporated by reference from Midcoast Form
10-KSB for the fiscal year ended December 31, 1994).
4.3
Shareholder Agreement by and between Midcoast Energy Resources, Inc. and Richard
A. Robert dated April 30, 1994 (Incorporated by reference from Midcoast Form
10-KSB for the fiscal year ended December 31, 1994).
4.4
Shareholder Agreement by and between Midcoast Energy Resources, Inc. and Iris J.
Berthelot, II dated April 30, 1994 (Incorporated by reference from Midcoast
Form 10-KSB for the fiscal year ended December 31, 1994).
4.5
Specimen Certificate for Shares of Common Stock, par value $.01 per share.
(Incorporated by reference from Midcoast Registration Statement on Form SB-2
(No. 333-4643) dated August 8, 1996).
4.6
Representative's Warrants. (Incorporated by reference from Midcoast
Registration Statement on Form SB-2 (No. 333-4643) dated August 8, 1996).
4.7
Voting Proxy Agreement by and between Midcoast Energy Resources, Inc., Stevens
G. Herbst, Kenneth B. Holmes, Jr., Rainbow Investments Company and Texas
Commerce Bank National Association. (Incorporated by reference from Midcoast
Registration Statement on Form SB-2 (No. 333-4643) dated August 8, 1996).
4.8
Registration Rights Agreement by and between Midcoast Energy Resources, Inc.
and Stevens G. Herbst. (Incorporated by reference from Midcoast Registration
Statement on Form SB-2 (No. 333-4643) dated August 8, 1996).
4.9
Registration Rights Agreement by and between Midcoast Energy Resources, Inc.
and Kenneth B. Holmes, Jr. (Incorporated by reference from Midcoast
Registration Statement on Form SB-2 (No. 333-4643) dated August 8, 1996).
4.10
Registration Rights Agreement by and between Midcoast Energy Resources, Inc.
and Rainbow Investments Company. (Incorporated by reference from Midcoast
Registration Statement on Form SB-2 (No. 333-4643) dated August 8, 1996).
4.11
1996 Incentive Stock Plan. (Incorporated by reference to Exhibit 10.56 from
Midcoast Registration Statement on Form SB-2 (No. 333-4643) dated August 8,
1996.)
4.12
Midcoast Energy Resources, Inc. 1997 Non-Employee Director Stock Option Plan
(Incorporated by reference to Exhibit 10.8 from Midcoast Form 10-QSB for the
three-month period ended March 31, 1997).
5.1
Opinion of Porter & Hedges, L.L.P. with respect to legality of securities
(filed herewith).
23.1
Consent of Hein + Associates LLP (filed herewith).
23.2
Consent of Porter & Hedges, L.L.P. (included in Exhibit 5).
24.1
Powers of Attorney (included on signature page).
ITEM 9.UNDERTAKINGS
(a)Undertaking to Update
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 to:
(i)include any prospectus required by section 10(a)(3) of the Securities
Act;
(ii)reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in the
Registration Statement; and
(iii)include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(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 15(d) of the Exchange Act that are incorporated by
reference in the 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.
(b)Undertaking With Respect to Documents Incorporated by Reference
The undersigned Registrant hereby undertakes that, for 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 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.
(c)Undertaking With Respect to Indemnification
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.
Exhibit 5.1
August 7, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Midcoast Energy Resources, Inc. Registration Statement on Form S-8;
1996 Incentive Stock Plan and 1997 Non-Employee Director Stock Option Plan
Gentlemen:
We have acted as counsel to Midcoast Energy Resources, Inc., a Nevada
corporation ("Company"), in connection with the preparation for filing with the
Securities and Exchange Commission a Registration Statement
on Form S-8 ("Registration Statement") under the Securities Act of 1933,
as amended. The Registration Statement relates to an aggregate of 280,000
shares ("Shares") of the Company's common stock, par value $.01 per share
("Common Stock"), issuable pursuant to the Company's 1996 Incentive Stock Plan
(the "Incentive Plan") and the Company's 1997 Non-Employee Director Stock
Option Plan (the "Director Plan").
We have examined the Incentive Plan and the Director Plan and such corporate
records, documents,instruments and certificates of the Company, and have
reviewed such questions of law as we have deemed necessary, relevant or
appropriate to enable us to render the opinion expressed herein. In such
examination, we have assumed without independent investigation the
authenticity of all documents submitted to us as originals, the genuineness
of all signatures, the legal capacity of all natural persons, and the
conformity of any documents submitted to us as copies to their respective
originals. As to certain questions of fact material to this opinion, we
have relied without independent investigation upon statements or certificates
of public officials and officers of the Company.
Based upon such examination and review, we are of the opinion that the Shares
have been duly and validly authorized and will, upon issuance and delivery as
contemplated by the Incentive Plan and the Director Plan, be
validly issued, fully paid and nonassessable outstanding shares of Common
Stock.
This Firm consents to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Porter & Hedges, L.L.P.
PORTER & HEDGES, L.L.P.
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 27, 1997 accompanying the consolidated
financial statements of Midcoast Energy Resources, Inc. ("Registrant") and
Subsidiaries appearing in its Annual Report on Form 10-KSB for the year
ended December 31, 1996 which is incorporated by reference in this Registration
Statement. We consent to the incorporation by reference in the Registration
Statement of the aforementioned report.
/s/ Hein + Associates LLP
Houston, Texas
August 7, 1997
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Dan C. Tutcher and Duane S. Herbert, and each
of them, either of whom may act without joinder of the other, 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 any or all amendments to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Commission, granting unto such
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 and agents, and each of them, or the substitute or
substitutes of either of them, may lawfully do or cause to be done by
virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds tobelieve 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 seventh day of August 1997.
MIDCOAST ENERGY RESOURCES, INC.
By: /s/ DAN C. TUTCHER
Dan C. Tutcher, Chairman of the Board,
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed by the following persons in the capacities and on dates
indicated.
Signature
Title
Date
/s/ DAN C. TUTCHER
(Dan C. Tutcher)
Chairman of the Board, President and Chief Executive Officer
August 7, 1997
/s/ I.J. BERTHELOT, II
(I.J. Berthelot, II)
Vice President of Operations and Director
August 7, 1997
/s/ RICHARD A. ROBERT
(Richard A. Robert)
Treasurer, Principal Financial Officer and Principal Accounting Officer
August 7, 1997
/s/ RICHARD N. RICHARDS
(Richard N. Richards)
Director
August 7, 1997
/s/ BRUCE M. WITHERS
(Bruce M. Withers)
Director
August 7, 1997
