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As filed with the Securities and Exchange Commission on August 11, 1998
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
VENUS EXPLORATION, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3299127
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1250 N.E. LOOP 410, SUITE 1000 78209
SAN ANTONIO, TEXAS (Zip Code)
(210) 930-4900
(Address of Principal Executive Offices)
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1997 INCENTIVE PLAN OF
VENUS EXPLORATION, INC.
(Full title of the plan)
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E.L. AMES, JR.
Chairman and Chief Executive Officer
Venus Exploration, Inc.
1250 N.E. Loop 410, Suite 1000
San Antonio, Texas 78209
(210) 930-4900
(Name and address of agent for service)
Copy to:
Will C. Jones, IV
Haynes and Boone, LLP
112 East Pecan Street, Suite 1600
San Antonio, Texas 78205
(210) 978-7427
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed Proposed
maximum maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered(1) per share(2) offering price(2) registration fee(2)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value.............. 1,500,000 $3.125 $4,687,500 $1,383
================================================================================================================================
</TABLE>
(1) Of the 1,500,000 shares to be registered hereunder, 69,683 shares are
shares which may be issued upon exercise of options granted under a prior
plan and assumed under the 1997 Incentive Plan of Venus Exploration, Inc.
The amount to be registered also includes such indeterminate number of
shares as may be issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions in accordance with Rule 416
promulgated under the Securities Act of 1933.
(2) The offering price per share, the aggregate offering price and the
registration fee have each been calculated in accordance with paragraphs
(c) and (h)(1) of Rule 457 under the Securities Act of 1933 based on the
average high and low sales prices of the Common Stock as reported on the
Nasdaq SmallCap Market on August 3, 1998 ($3.125 per share).
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VENUS EXPLORATION, INC.
1,500,000 SHARES OF COMMON STOCK
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
Venus Exploration, Inc. (the "Company") hereby incorporates by
reference the following documents filed with the Securities and Exchange
Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for its fiscal year
ended December 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for its fiscal
quarter ended March 31, 1998;
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated March 12,
1986; and
(d) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment that indicates that all securities
offered hereunder have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from
the date such documents are filed. Any statement contained in
a 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 herein or in any other subsequently
filed document which also is or is deemed to be incorporated
by reference in this Registration Statement modifies or
supersedes such statement.
ITEM 4: DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5: INTEREST OF NAMED EXPERTS AND COUNSEL.
Will C. Jones, IV, Of Counsel to Haynes and Boone, LLP, is married to
Elizabeth Ames Jones ("Mrs. Jones"). Mrs. Jones is the daughter of Eugene L.
Ames, Jr., Chairman of the Board, Chief Executive Officer and a significant
stockholder of the Company, and the sister to John Y. Ames, President and a
director of the Company, and Eugene L. Ames, III, a Vice President of the
Company. Mrs. Jones also owns 262,373 shares of the Company's Common Stock, all
of which are subject to a Voting Trust Agreement under which E.L. Ames, Jr., has
sole voting power.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
In accordance with Section 145 of the Delaware General Corporation Law,
as amended (the "DGCL"), Article Eleven of the Company's Certificate of
Incorporation (the "Certificate") and Section 6.5 of the Company's Bylaws (the
"Bylaws") provides that the Company shall indemnify, to the full extent
permitted by law, 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 or officer of the corporation or is or was serving at the request of
the corporation, in any capacity, another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees),
<PAGE> 3
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding.
Section 145, the Certificate and the Bylaws further provide that
indemnification provided for thereby shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled, and that the corporation
is empowered to purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145. Section 145, the Certificate and the Bylaws
also allow for the indemnification provisions to continue as to a person who has
ceased to be a director, officer, employee or agent of the Company and to inure
to the benefit of the heirs, executors and administrators of such a person.
The Company also maintains insurance policies insuring its directors
and officers against certain liabilities arising under the securities laws.
For the undertaking with respect to indemnification, see Item 9 herein.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8: EXHIBITS
Exhibit No. Exhibit
----------- -------
4.1 Certificate of Incorporation of Venus Exploration, Inc. as
amended (filed as Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31,
1997, and incorporated by reference herein).
4.2 Bylaws of Venus Exploration, Inc. as amended (filed as
Exhibit 3.2 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, and
incorporated by reference herein).
4.3* Specimen Common Stock Certificate.
5.1* Opinion of Haynes and Boone, LLP with respect to validity
of issuance of securities.
23.1* Consent of KPMG Peat Marwick LLP.
23.2* Consent of Williamson Petroleum Consultants, Inc.
23.3* Consent of Haynes and Boone, LLP (included in Exhibit
5.1).
24.1 Power of Attorney of the directors (included on the
signature page of the Registration Statement)
* Filed herewith.
ITEM 9: UNDERTAKINGS
(a) 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:
II-3
<PAGE> 4
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the 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 the registration
statement; and
(iii) to 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 Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; and
(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) The undersigned registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, 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; and
(2) For the purpose of determining any liability under
the Securities Act of 1933, 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 AND POWER OF ATTORNEY
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 San Antonio, State of Texas, on the 11th day of
August, 1998.
VENUS EXPLORATION, INC.
By: /s/ E.L. AMES, JR.
-------------------------------------------
E.L. Ames, Jr.
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of E.L. Ames, Jr., and John Y. Ames,
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, execute and file with the Securities and
Exchange Commission and any state securities regulatory board or commission any
documents relating to the proposed issuance and registration of the securities
offered pursuant to this Registration Statement on Form S-8 under the Securities
Act of 1933, including any amendment or amendments relating thereto (and any
additional Registration Statement related hereto permitted by Rule 462(b)
promulgated under the Securities Act of 1933, including any amendment or
amendments relating thereto), with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully to all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons on
behalf of the Registrant in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ E.L. AMES, JR. Chairman, Chief Executive August 11, 1998
- ----------------------------------- Officer and Director
E.L. Ames, Jr.
/s/ JOHN Y. AMES President, Chief Operating August 11, 1998
- ----------------------------------- Officer and Director
John Y. Ames
/s/ J.C. ANDERSON Director August 11, 1998
- -----------------------------------
J.C. Anderson
/s/ MARTIN A. BELL Director August 11, 1998
- -----------------------------------
Martin A. Bell
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/JAMES W. GORMAN
- -------------------- Director August 11, 1998
James W. Gorman
/s/JERE W. MCKENNY
- -------------------- Director August 11, 1998
Jere W. McKenny
/s/JOHN H. PINKERTON
- -------------------- Director August 11, 1998
John H. Pinkerton
/s/PATRICK A. GARCIA
- -------------------- Treasurer and Chief August 11, 1998
Patrick A. Garcia Financial Officer
(Principal Financial and
Accounting Officer)
</TABLE>
II-6
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit
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<S> <C>
4.1 Certificate of Incorporation of Venus Exploration, Inc. as amended (filed as
Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, and incorporated by reference herein).
4.2 Bylaws of Venus Exploration, Inc. as amended (filed as Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1997, and incorporated by reference herein).
4.3* Specimen Common Stock Certificate.
5.1* Opinion of Haynes and Boone, LLP with respect to validity of issuance of
securities.
23.1* Consent of KPMG Peat Marwick LLP.
23.2* Consent of Williamson Petroleum Consultants.
23.3* Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
24.1 Power of Attorney of the directors (included on the signature page of the
Registration Statement)
</TABLE>
* Filed herewith.
<PAGE> 1
EXHIBIT 4.3
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK COMMON STOCK
NUMBER AMOUNT
VX 0178 [VENUS LOGO]
VENUS EXPLORATION, INC.
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 923333 10 8
SPECIMEN
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK
OF THE PAR VALUE OF $.01 EACH OF
VENUS EXPLORATION, INC.
(hereinafter called the "Corporation") transferable on the books of the
Corporation in person or by duly authorized attorney upon surrender of this
Certificate properly endorsed. This Certificate and the shares represented
hereby are issued and shall be held subject to all of the provisions of the
Articles of Incorporation and By-Laws of the Corporation and the amendments from
time to time made thereto, copies of which are or will be on file at the
principal office of the Corporation to all of which the holder by acceptance
hereof assents. This Certificate is not valid unless countersigned by the
Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
Secretary President
COUNTERSIGNED:
AMERICAN STOCK TRANSFER AND TRUST
COMPANY
(NEW YORK, N.Y.)
By: TRANSFER AGENT
AND REGISTRAR
AUTHORIZED OFFICER
<PAGE> 2
The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT --
TEN ENT -- as tenants by the entireties Custodian
JT TEN -- as joint tenants with right of ----------------------------- ------------------------
survivorship and not as tenants (Cust.) (Minor)
in common and Uniform Gifts to Minors Act
--------------------------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
--------------------
</TABLE>
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
- -------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
shares
- ----------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint Attorney to
---------------------------------
transfer the said stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated
-----------------------------
-----------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
<PAGE> 1
EXHIBIT 5.1
August 11, 1998
Venus Exploration, Inc.
1250 N.E. Loop 410, Suite 1000
San Antonio, Texas 78209
Gentlemen:
We have acted as special counsel to Venus Exploration, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to the registration of 1,500,000 shares of Common Stock, par value
$0.01 per share (the "Common Stock"), of the Company that may be issued pursuant
to the 1997 Incentive Plan of Venus Exploration, Inc. (the "Plan"). The law
covered by the opinions expressed herein is limited to the Federal law of the
United States and the General Corporation Law of the State of Delaware.
In connection therewith, we have examined (i) the Certificate of Incorporation
and the Bylaws of the Company; (ii) minutes and records of the corporate
proceedings of the Company with respect to the adoption of the Plan and the
granting of awards thereunder; and (iii) such other documents as we have deemed
necessary for the expression of the opinion contained herein.
In making the foregoing examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. Furthermore, we have assumed that the exercise
prices of all stock options that may be granted under the Plan will equal or
exceed the par value per share of the Common Stock. As to questions of fact
material to this opinion, where such facts have not been independently
established, and as to the content and form of the Certificate of Incorporation,
Bylaws, minutes, records, resolutions and other documents or writings of the
Company, we have relied, to the extent we deem reasonably appropriate, upon
representations or certificates of officers or directors of the Company and upon
documents, records and instruments furnished to us by the Company, without
independent check or verification of their accuracy.
Based upon the foregoing, and having due regard for such legal considerations as
we deem relevant, we are of the opinion that the 1,500,000 shares of Common
Stock covered
<PAGE> 2
Venus Exploration, Inc.
August 11, 1998
Page 2
by the Registration Statement which may be issued from time to time in
accordance with the terms of the Plan have been duly authorized for issuance by
the Company, and, when so issued in accordance with the terms and conditions of
the Plan and any related option or other applicable agreements, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement and to the reference to
our firm under the caption, "Item 5. Interests of Named Experts and Counsel" in
the Registration Statement.
Very truly yours,
/s/ HAYNES AND BOONE, LLP
Haynes and Boone, LLP
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
Venus Exploration, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Venus Exploration, Inc. of our report dated March 26, 1998, relating to
the consolidated balance sheets of Venus Exploration, Inc. and subsidiaries as
of December 31, 1997, and 1996, and the related consolidated statements of
operations, shareholders' equity (deficit), and cash flows for each of the years
in the three-year period ended December 31, 1997, which report appears in the
December 31, 1997, annual report on Form 10-K of Venus Exploration, Inc.
KPMG PEAT MARWICK LLP
San Antonio, Texas
August 10, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ENGINEERS
Williamson Petroleum Consultants, Inc. (Williamson) hereby consents to the
references to Williamson as expert and to our reserve reports entitled
"Evaluation of Oil and Gas Reserves to the Interests of Venus Exploration, Inc.
in Certain Properties Located in Texas and Oklahoma, Effective December 31,
1996, for Disclosure to the Securities and Exchange Commission, Williamson
Project 7.8482" and "Evaluation of Oil and Gas Reserves to the Interests of
Venus Exploration, Inc. in Certain Properties, Effective December 31, 1997, for
Disclosure to the Securities and Exchange Commission, Williamson Project 8.8572"
and to information depicted in the Venus Exploration, Inc., a Delaware
corporation (the "Company") Annual Report on Form 10-K for the year ended
December 31, 1997, that was derived from our reserve reports, in the Prospectus
constituting a part of the Registration Statement on Form S-8 and the
Registration Statement on Form S-8 to be filed with the Securities and Exchange
Commission on or about August 4, 1998.
/s/ WILLIAMS PETROLEUM CONSULTANTS, INC.
WILLIAMS PETROLEUM CONSULTANTS, INC.
July 31, 1998
