As filed with the Securities and Exchange Commission on May ___, 1995
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CAIRN ENERGY USA, INC.
(Exact name of registrant as specified in its charter)
Delaware 1311 23-
2169839
(State or other jurisdiction (Primary Standard Industrial
(I.R.S. Employer Identification
of incorporation or organization) Classification Code Number)
Number)
Michael R. Gilbert
President and Chief Executive Officer
Cairn Energy USA, Inc.
8235 Douglas Avenue, Suite 1221
Dallas, Texas 75225
(214) 369-0316
(Name, address, including zip code, and telephone number,
including area code, of registrant's principal executive offices and of
agent for service)
Copy to:
Mark D. Wigder, Esq. James B. Smith, Jr., Esq.
Jenkens & Gilchrist, Cox & Smith Incorporated
a Professional Corporation 112 E. Pecan Street, Suite 1800
1445 Ross Avenue, Suite 3200 San Antonio, Texas 74205
Dallas, Texas 75202 (210) 554-5251
(214) 855-4326
Approximate Date of Commencement of Proposed Sale to the Public: As
soon as practicable after the effective date of this registration
statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered in connection with
dividend or interest reimbursement plans, check the following box.
<PAGE>
<TABLE> CALCULATION OF REGISTRATION FEE
Title of each class of
securities registered Amount to be
registered Proposed maximum
offering price
per security (1) Proposed
maximum
aggregate
offering price
(1) Amount of
registration
fee
<CAPTION>
<S> <C> <C> <C> <C>
Shares of Common Stock . . . 2,623,260 Shares $9.81 $25,734,180.60 $8,873.86
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based upon the average of the high and low
prices reported on the NASDAQ Stock Market on May 8, 1995.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to Section 8(a), may determine.
<PAGE>
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been filed
with the Securities and Exchange Commission. These securities may not be
sold nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be
any sale of these securities in any State in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under
the securities laws of any such State.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 10, 1995PROSPECTUS
2,623,260 Shares
CAIRN ENERGY USA, INC.
Common Stock
This Prospectus relates to an aggregate of 2,623,260 shares (the
"Shares") of common stock, par value $.01 per share (the "Common Stock"),
of Cairn Energy USA, Inc., a Delaware corporation (the "Company"), that may
be offered from time to time by Cairn Energy PLC, a Scottish corporation
(the "Selling Stockholder"). The Selling Stockholder has advised the
Company that up to 1,700,000 of these shares are to be offered and sold on
an agency basis by Southcoast Capital Corporation ("Southcoast").
Southcoast and the Selling Stockholder have agreed that the shares to be
sold by Southcoast shall be sold at a price of at least $9 1/2 per share
and that Southcoast will receive a commission of $.375 per share. The sale
of the remaining 923,260 Shares in this offering is contingent on the
Selling Stockholder receiving the approval of its shareholders to such
sale, if such approval is required. The Selling Stockholder does not
intend to sell the remaining 923,260 Shares in this offering for less than
$9 1/2 per share, before payment of commissions and discounts. See
"Selling Stockholder." The Company will receive no part of the proceeds of
such sales. See "Plan of Distribution." All expenses (other than
commissions and discounts of underwriters, brokers, dealers or agents)
incurred in connection with this offering are expected to be approximately
$39,000. All of such expenses will be paid by the Company.
The Selling Stockholder has advised the Company that it intends to
sell all or a portion of the Shares offered by this Prospectus from time to
time (i) on the NASDAQ National Market at prices prevailing at the time of
such sales, (ii) otherwise than on the NASDAQ National Market at market
prices prevailing at the time of sale, at fixed prices that may be changed
or at negotiated prices, or (iii) by a combination of the foregoing methods
of sale. The Selling Stockholder and any broker, dealer or other agent
executing sell orders on behalf of the Selling Stockholder may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), in which event commissions received by any
such broker, dealer or agent may be deemed to be underwriting commissions
under the Securities Act. See "Plan of Distribution."
The Company's Common Stock is traded on the NASDAQ National Market
under the symbol "CEUS." On May 8, 1995, the closing price for the Common
Stock as reported by NASDAQ was $9 3/4 per share.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is _____________, 1995.
<PAGE>
THE COMPANY
The registrant, Cairn Energy USA, Inc., a Delaware corporation (the
"Company"), was incorporated on May 5, 1981 in Delaware as "Omni
Exploration, Inc." On September 29, 1992, Cairn Energy USA, Inc., an oil
and gas exploration and development company and wholly-owned subsidiary of
Cairn Energy PLC, a Scottish corporation (the "Selling Stockholder"),
merged with and into the registrant with the registrant being the survivor
(the "Merger"). Pursuant to the Merger, the registrant changed its name to
"Cairn Energy USA, Inc." As used in this Prospectus, "Omni" refers to Omni
Exploration, Inc. prior to the Merger, "Cairn USA" refers to the
corporation prior to the Merger that merged into Omni Exploration, Inc. and
the "Company" refers to the surviving corporation in the Merger. Because
Omni was the reporting company under the federal securities laws and the
surviving corporation in the Merger (but was not the survivor for
accounting purposes), all references to the Company prior to September 29,
1992 are to Omni, except for financial data and oil and gas information.
As a result of the accounting treatment of the Merger, all financial data
and oil and gas information of the Company prior to September 29, 1992 are
the historical financial data and oil and gas information of Cairn USA.
The Company's principal executive offices are located at 8235 Douglas
Avenue, Suite 1221, Dallas, Texas 75225 and its telephone number is (214)
369-0316.
SELLING STOCKHOLDER
As of the date of this Prospectus, the Selling Stockholder owned
2,623,260 shares, or approximately 15.5% of the 16,973,150 shares of Common
Stock issued and outstanding. Assuming all Shares offered hereby are
actually sold, the Selling Stockholder will no longer hold any shares of
Common Stock.
Of the 16,973,150 shares of Common Stock issued and outstanding,
1,000,000 shares (the "Escrow Shares") were issued to Phemus Corporation
("Phemus") in connection with the October 1994 acquisition (the "Smith
Acquisition") of substantially all the oil and gas assets of Smith Offshore
Exploration Company II ("Smith") and are being held in escrow. Phemus, a
Massachusetts corporation that is a subsidiary of the President and Fellows
of Harvard College (a Massachusetts non-profit educational corporation) and
the successor in interest to Smith, is entitled to notice of all meetings
of the Company's stockholders and to vote all Escrow Shares on all matters
submitted to the Company's stockholders for a vote. The Escrow Shares,
however, are deemed not to be outstanding for financial reporting purposes.
The Escrow Shares will be released to Phemus or returned to the Company
based on the valuation of the Smith Assets that will occur as of a date on
or before June 30, 1995, to be selected by Phemus, but which may be
extended under certain circumstances until December 31, 1995. See
"Acquisition of Smith Offshore Exploration Company II" at page 4 of the
Company's Annual Report on Form 10-K for the year ended December 31, 1994.
Prior to the Merger, Cairn USA was a wholly-owned subsidiary of the
Selling Stockholder. From time to time prior to the Merger, Cairn USA
obtained funds through borrowings from third parties and borrowings and
capital contributions from the Selling Stockholder. Effective December 31,
1991, the Selling Stockholder converted the unpaid principal balance of its
loans to Cairn USA, an aggregate of approximately $12,400,000, to
<PAGE>
additional paid-in capital. The accrued and unpaid interest on the
converted principal of these promissory notes was not, however, converted
to additional paid-in capital, and as of June 30, 1993, the Company owed
the Selling Stockholder approximately $2,600,000 for this interest. In
connection with the Merger, PLC received 7,992,260 shares of Common Stock
and 200,000 shares of Series A Preferred Stock constituting approximately
95.4% of the issued and outstanding capital stock of the Company. The
Company paid the accrued and unpaid interest on the converted principal of
the promissory notes to the Selling Stockholder from the proceeds of the
Company's July 1993 public offering of Common Stock, which yielded net
proceeds to the Company of approximately $17,100,000. The Company also
used an additional $3,600,000 of such proceeds to redeem from the Selling
Stockholder all of the Company's then outstanding Series A Preferred Stock.
In connection with the Smith Acquisition, the Company and the Selling
Stockholder entered into a registration rights agreement (the "PLC
Registration Rights Agreement") pursuant to which the Selling Stockholder
has the right to up to five demand registrations under the Securities Act
of the Common Stock it holds. Each demand registration must relate to the
offering and sale of at least 1,000,000 shares of Common Stock. The
Company is not obligated to effect any Securities Act registration with
respect to which the registration request is made within six months of the
termination of a prior demand registration of the Selling Stockholder or a
piggyback registration in which there was no reduction in the number of
securities requested by the Selling Stockholder to be included in such
registration. In addition, the Company will not be obligated to register
the sale of shares by the Selling Stockholder under the Securities Act that
may be sold through an exemption from registration available pursuant to
Rule 144(k) promulgated under the Securities Act. The Selling Stockholder
also has piggyback registration rights to include shares in certain
Securities Act registration statements filed by the Company.
The Company shall pay all expenses relating to demand registrations
and piggyback registrations (including the reasonable fees and expenses of
counsel to the Selling Stockholder), except for underwriting discounts and
commissions attributable to the sale of shares of Common Stock by the
Selling Stockholder.
The Selling Stockholder may assign its registration rights to any one
or more transferees; provided, however, that no transferee of the Selling
Stockholder may assign or transfer rights under the PLC Registration Rights
Agreement without the prior written consent of the Company. See
"Registration Rights Relating to Common Stock" at page 18 of the Company's
Proxy Statement relating to its 1995 annual meeting (the "Proxy
Statement").
In connection with the Smith Acquisition, the Company and the Selling
Stockholder entered into a participation agreement (the "Participation
Agreement"). Pursuant to the Participation Agreement, the Selling
Stockholder or an affiliate of the Selling Stockholder has the right under
certain circumstances to acquire an interest in certain oil and gas
prospects to be acquired by the Company in the future in the continental
United States or in the Gulf of Mexico. If the Selling Stockholder is
entitled under the Participation Agreement to acquire such interest, the
Selling Stockholder will be required to purchase such interest at the same
price as the Company has determined that it will offer such interest to
industry participants. The Participation Agreement became effective upon
<PAGE>
the consummation of the Smith Acquisition. As of the date of this
Prospectus, the Company has entered into no transactions with the Selling
Stockholder under the Participation Agreement.
Recent Sales of Shares by the Selling Stockholder
On July 8, 1994, the Selling Stockholder sold 824,000 shares of Common
Stock it held at a price of $7.50 per share pursuant to a registration
statement on Form S-3 under the Securities Act, (Registration No. 33-
80526). Mr. J. Munro M. Sutherland, a then-Director of the Selling
Stockholder and a Director and Senior Vice President of the Company,
purchased 12,000 shares of Common Stock from the Selling Stockholder in
that offering.
On October 10, 1994, in connection with the Smith Acquisition, the
Selling Stockholder sold 2,000,000 shares of Common Stock to Phemus at a
price of $7.50 per share in cash.
On October 18, 1994 the Selling Stockholder sold 1,926,000 shares of
Common Stock at a price of $7.00 per share pursuant to a registration
statement on Form S-3 under the Securities Act (Registration No. 33-84206).
In March 1995, the Selling Stockholder sold 162,000 shares and 7,000
shares of Common Stock at prices of $8 and $8 per share, respectively, in
sales pursuant to Rule 144 under the Securities Act.
PLAN OF DISTRIBUTION
This Prospectus relates to 2,623,260 Shares of Common Stock that may
be offered and sold from time to time by the Selling Stockholder.
As of May 8, 1995, the Selling Stockholder was the beneficial owner of
2,623,260 shares of Common Stock. Assuming all shares offered hereby are
actually sold, the Selling Stockholder will no longer own any shares of
Common Stock.
The Selling Stockholder has advised the Company that it intends to
sell all or a portion of the shares of Common Stock offered by this
Prospectus from time to time (i) on the NASDAQ National Market at prices
reasonably related to the prices of the Common stock prevailing at the time
of such sales, (ii) otherwise than on the NASDAQ national market, in
negotiated transactions (which may include the pledge or hypothecation of
some or all of the shares), at fixed prices that may be changed, at market
prices prevailing at the time of sale or at prices reasonably related
thereto or at negotiated prices, or (iii) by a combination of the foregoing
methods of sale. The Selling Stockholder may effect such transactions by
selling the shares of Common Stock to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholder and/or the
purchasers of the shares of Common Stock for which such broker-dealers may
act as agent or to whom they may sell as principal, or both. The Selling
Stockholder has advised the Company that up to 1,700,000 of these Shares
are to be offered and sold on an agency basis by Southcoast. Southcoast and
the Selling Stockholder have agreed that the Shares to be sold by
Southcoast shall be sold at a price of at least $9 1/2 per Share and that
Southcoast shall receive from the Selling Stockholder a commission of $.375
<PAGE>
per Share.
The sale of the remaining 923,260 Shares in this offering is
contingent on the Selling Stockholder receiving the approval of its
shareholders to such sale, if such approval is required. The Selling
Stockholder does not intend to sell the remaining 923,260 Shares in this
offering for less than $9 1/2 per Share, before payment of commissions and
discounts. The Company is not aware as of the date of the Prospectus of
any other agreements between the Selling Stockholder and any broker-dealer
with respect to the sale of the remaining 923,260 Shares offered by this
Prospectus.
The Selling Stockholder and any broker, dealer or other agent
executing sell orders on behalf of the Selling Stockholder, including
Southcoast, may be deemed to be "underwriters" within the meaning of the
Securities Act, in which event commissions received by any such broker,
dealer or agent and profit on any resale of the shares of Common Stock may
be deemed to be underwriting commissions under the Securities Act. Such
commissions received by a broker, dealer or agent may be in excess of
customary compensation.
In effecting the sale of the Shares offered by this Prospectus, the
Selling Stockholder must comply with Rule 10b-6 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which will require
that the Selling Stockholder, as well as any person who acts in concert
with the Selling Stockholder and the broker, if any, who sells the shares
on behalf of the Selling Stockholder, suspend all purchases of shares of
the Common Stock at least two business days prior to and during any offers
and sales by the Selling Stockholder of the Shares offered by this
Prospectus. Because the Selling Stockholder may be deemed to be an
affiliate of the Company under the Exchange Act, Rule 10b-6 also requires
the Company and all persons who are in a control relationship with the
Company to suspend all purchases of shares of the Company at least two
business days prior to and during any offers and sales by the Selling
Stockholder of the Shares offered by this Prospectus. The Company will
require the Selling Stockholder, and its underwriter, broker or dealer, if
applicable, to provide a letter that acknowledges its compliance with Rule
10b-6 before authorizing the transfer of the Selling Stockholder's shares.
EXPERTS
The consolidated financial statements of the Company included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1994
have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon, included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein
by reference in reliance upon such report given upon the authority of such
firm as experts in accounting and auditing.
The audited financial statements of Smith that are included in the
Company's Prospectus dated October 11, 1994 and in the Company's Proxy
Statement relating to a special meeting of stockholders held on October 10,
1994 have been audited by Arthur Andersen, LLP, independent public
accountants, as set forth in their report thereon, included therein and
incorporated herein by reference in reliance upon the authority of said
firm as experts in giving said reports.
<PAGE>
The estimated reserve review of Ryder Scott included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1994 and
incorporated by reference in this Prospectus has been included herein in
reliance upon the authority of that firm as an expert in petroleum
engineering.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Exchange Act and in accordance therewith files reports, proxy statements
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the following Regional Offices of the Commission: The Chicago
Regional Office, Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and the New York Regional Office, 7
World Trade Center, 12th Floor, New York, New York 10007, at prescribed
rates. Such reports, proxy statements and other information concerning the
Company can also be inspected at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
ADDITIONAL INFORMATION
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act with respect to the Common Stock offered
hereby (the "Registration Statement"). This Prospectus does not contain
all the information set forth in the Registration Statement and the
exhibits and schedules thereto. Such additional information can be
obtained from the Commission's principal office in Washington, D.C.
Statements in this Prospectus concerning provisions of documents filed with
the Registration Statement as exhibits are necessarily summaries of such
documents, and each statement is qualified in its entirety by reference to
the copy of the applicable document filed with the Commission.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents or portions thereof filed by the Company are
hereby incorporated by reference in this Prospectus:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 and Amendment Number 1 thereto on Form 10-K/A;
(ii) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995;
(iii) the Company's Proxy Statement for its 1995 Annual Meeting;
(iv) the Financial Statements of Smith Offshore Exploration Company II
and the Pro Forma Combined Financial Statements contained in the
Company's Proxy Statement for its Special Meeting of Stockholders
held October 10, 1994;
(v) the Financial Statements of Smith Offshore Exploration Company II
contained in the Prospectus dated October 11, 1994, filed
pursuant to Rule 424(b) and included in the Company's
Registration Statement on Form S-3 (Registration No. 33-84206);
and
<PAGE>
(vi) the description of the Common Stock set forth in the Registration
Statement on Form 8-A, filed with the Commission on January 29,
1982, including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of the offering of Common
Stock made hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for the purposes of this Prospectus to the extent
that a statement contained herein or in any subsequently filed document
which 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, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon oral or written request of such
person, a copy of any and all of the documents incorporated by reference
herein (other than exhibits and schedules to such documents, unless such
exhibits or schedules are specifically incorporated by reference into such
documents). Such requests should be directed to A. Allen Paul, Vice
President-Finance, Cairn Energy USA, Inc., 8235 Douglas Avenue, Suite 1221,
Dallas, Texas 75225 or by telephone at (214) 369-0316.
<PAGE>
No dealer, salesperson or any other person has been authorized to give
any information or to make any representation in connection with this
Offering other than those contained in this Prospectus, and, if given or
made, such information or representation must not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an
offer to sell or solicitation of any offer to buy by anyone in any
jurisdiction in which such offers or solicitation is not authorized, or in
which the person making such offer or solicitation is not qualified to do
so or to any person to whom it is unlawful to make such offer or
solicitation. Neither the delivery of this Prospectus nor any sale
hereunder shall, under any circumstances create any implication that there
has been no change in the affairs of the Company since the date hereof or
that the information contained herein is correct as of any time subsequent
to its date.
TABLE OF CONTENTS
Page
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SELLING STOCKHOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . 4
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . 5
ADDITIONAL INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . 5
DOCUMENTS INCORPORATED BY REFERENCE . . . . . . . . . . . . . . . . . . 6
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be incurred in
connection with the issuance and distribution of the securities described
in this registration statement, other than underwriting discounts and
commissions. The Company will pay all such expenses.
SEC registration fee $ 8,873.86
Blue sky fees and expenses 3,000.00*
Accounting fees and expenses 5,000.00*
Legal fees and expenses 15,000.00*
Printing and engraving fees and expenses 5,000.00*
Miscellaneous 2,000.00*
TOTAL $ 38,873.86*
*Estimated.
Item 15. Indemnification of Directors and Officers
The Company has authority under the Delaware General Corporation Law,
subject to certain limitations, to indemnify its directors and officers
against expenses (including attorneys' fees), judgments, fines and certain
settlements actually and reasonably incurred by them in connection with any
suit or proceeding to which they are a party so long as they acted in good
faith and in a manner reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to a criminal action or
proceeding, so long as they had no reasonable cause to believe their
conduct was unlawful.
Reference is also made to the Company's Certificate of Incorporation,
which limits or eliminates a director's liability for monetary damages to
the Company or its stockholders for acts or omissions in the director's
capacity as a director, except that the Company's Certificate of
Incorporation does not eliminate or limit the liability of a director for
(i) a breach of the director's duty of loyalty to the Company or its
stockholders, (ii) an act or omission not in good faith that constitutes a
breach of duty of the director to the Company or an act or omission that
involves intentional misconduct or a knowing violation of the law, (iii) a
transaction from which a director received an improper benefit, whether or
not the benefit resulted from an action taken within the scope of the
director's office, or (iv) an act or omission for which the liability of a
director is expressly provided for by an applicable statute. In the case
of an action by or in the right of the Company, indemnification is
precluded if such person has been adjudged to be liable, unless and only to
the extent that the Court of Chancery of the State of Delaware or the court
in which the action was brought shall determine that indemnification is
proper. The Company will advance amounts to an indemnified person on
<PAGE>
receipt of an undertaking to repay the advance following any subsequent
determination that the indemnified person is not entitled to
indemnification. Indemnification will be provided unless it is determined
to be improper (i) by a majority of disinterested directors constituting a
quorum or if no such quorum is obtainable, a majority vote of a committee
of two or more directors, (ii) by a majority vote of a quorum of the
outstanding shares of stock of all classes entitled to vote for directors,
voting as a single class, which quorum shall consist of disinterested
stockholders, (iii) by independent legal counsel in a written opinion, or
(iv) by a court of competent jurisdiction. The Company also has the power
to obtain insurance indemnifying officers and directors of the Company
against any liability which it may deem proper, whether or not the Company
would have the power to indemnify such officer or director pursuant to the
General Corporation Law of the State of Delaware. The Company has obtained
such insurance.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits:
4 Specimen Stock Certificate evidencing the Common Stock
(incorporated by reference from the Company's Annual Report
on Form 10-K for the year ended December 31, 1992).
5 Opinion of Jenkens & Gilchrist, a Professional Corporation.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants
23.3 Consent of Jenkens & Gilchrist, A Professional Corporation
(included in opinion Exhibit 5).
23.4 Consent of Ryder Scott Company.
24 Power of Attorney (included on the signature page of the
Registration Statement).
Item 17. 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:
(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
<PAGE>
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 these
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.
(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.
(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 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 that is incorporated by
reference in the 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. The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security-holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to
be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
D. 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 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 Act and will be governed by the
<PAGE>
final adjudication of such issue.
E. The 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 or 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 of 1933 shall be
deemed to be part of this registration statement as of the time it was
declared effective.
(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.
<PAGE>
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-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, and State of Texas, on
the 9th day of May, 1995.
CAIRN ENERGY USA, INC.
(Registrant)
By: MICHAEL R. GILBERT
Michael R. Gilbert, President
and Chief Executive Officer
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints Michael R. Gilbert and J. M. M.
Sutherland, and each of them, each with full power to act without the
other, his or her true and lawful attorney-in-fact and agent, with full
power and substitution, 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 all 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
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 attorney-in-fact and agent, or his substitute, may lawfully
do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
MICHAEL R. GILBERT President and Chief Executive May 9, 1995
Michael R. Gilbert Officer and Director (Principal
Executive Officer)
J. MUNRO M. SUTHERLAND Senior Vice President, Chief
Financial May 9, 1995
J.Munro M. Sutherland Officer, Treasurer and Director
(Principal Financial Officer)
<PAGE>
A. ALLEN PAUL Vice President-Finance (Principal
May 9, 1995
A. Allen Paul Accounting Officer)
JACK O. NUTTER Director May 9, 1995
Jack O. Nutter, II
R. DANIEL ROBINS Director May 9, 1995
R. Daniel Robins
WILLIAM B. B. GAMMELL Director May 9, 1995
William B. B. Gammell
MICHAEL E. MCMAHON Director May 5, 1995
Michael E. McMahon
JOHN C. HALSTED Director May 9, 1995
John C. Halsted
<PAGE>
EXHIBIT INDEX
Exhibit
Number: Exhibit: Page
Number:
4 Specimen Stock Certificate evidencing
the Common Stock (incorporated by
reference from the Company's Annual
Report on Form 10-K for the year
ended December 31, 1992).
5 Opinion of Jenkens & Gilchrist, a
Professional Corporation.
23.1 Consent of Ernst & Young, LLP,
Independent Auditors.
23.2 Consent of Arthur Andersen LLP,
Independent Public Accountants.
23.3 Consent of Jenkens & Gilchrist, a
Professional Corporation (included in
opinion Exhibit 5).
23.4 Consent of Ryder Scott Company.
24 Power of Attorney (included on the
signature page of the Registration
Statement).
<PAGE>
EXHIBIT 5
JENKENS & GILCHRIST
1445 Ross Avenue Suite 3200
Dallas, Texas 75202
May 9, 1995
Cairn Energy USA, Inc.
8235 Douglas Avenue, Suite 1221
Dallas, Texas 75225
Re: Offering by Cairn Energy PLC of Common Stock of
Cairn Energy USA, Inc. on Form S-3
Gentlemen:
On May 9, 1995, Cairn Energy USA, Inc., a Delaware
corporation (the "Company"), will file with the Securities and
Exchange Commission a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as
amended (the "Act"). Such Registration Statement relates to the
sale by Cairn Energy PLC, the selling stockholder (the "Selling
Stockholder") of an aggregate of 2,623,260 shares (the "Shares")
of the Company's common stock, par value $.01 per share (the
"Common Stock"). We have acted as counsel to the Company in
connection with the preparation and filing of the Registration
Statement.
In connection therewith, we have examined and relied upon
the original or copies, certified to our satisfaction, of (i) the
Certificate of Incorporation and the Bylaws of the Company, as
<PAGE>
amended, (ii) copies of documents related to the merger of Cairn
Energy USA, Inc. with and into Omni Exploration, Inc. pursuant to
which the Shares were issued to the Selling Stockholder,
(iii) copies of documents relating to the issuance of the Shares
to the Selling Stockholder; (iv) copies of resolutions of the
Board of Directors of the Company authorizing the preparation and
filing of the Registration Statement, (v) the Registration
Statement, and all exhibits thereto, and (vi) such other
documents and instruments as we have deemed necessary for the
expression of the opinions herein contained. In making the
foregoing examinations, 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. As
to various questions of fact material to this opinion, 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 examination, we are of the opinion
that the Shares to be sold by the Selling Stockholder in the
offering, as described in the Registration Statement, have been
duly and validly authorized for issuance and are validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our name
under the caption "Legal Matters" in the Prospectus forming part
of the Registration Statement. In giving such consent, we do not
admit that we come within the category of persons whose consent
is required by Section 7 of the Act or the rules and regulations
of the Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By: Mark D. Wigder
Mark D. Wigder
Authorized Signatory
MDW/dc
DCC10EEF 15467.6
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-3) and related
Prospectus of Cairn Energy USA, Inc. for the registration of
2,623,260 shares of its common stock, and to the incorporation by
reference therein of our report dated February 17, 1995, with
respect to the consolidated financial statements of Cairn Energy
USA, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Dallas, Texas
May 8, 1995
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
use of our reports included in or made a part of this
registration statement.
ARTHUR ANDERSEN, LLP
Houston, Texas
May 8, 1995
<PAGE>
EXHIBIT 23.4
CONSENT OF RYDER SCOTT COMPANY
We hereby consent to the reference to our firm under the
caption "Experts" and the reference to the results of our reserve
review letter, dated January 1, 1995 (the "Reserve Review
Letter"), in the Registration Statement and related Prospectus of
Cairn Energy USA, Inc. (the "Company") on Form S-3 and to the
incorporation by reference therein of references to our firm and
to the Reserve Review Letter in the Company's Form 10-K for the
year ended December 31, 1994, filed with the Securities and
Exchange Commission.
/s/ RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
Ryder Scott Company
Petroleum Engineers
Houston, Texas
May 8, 1995
<PAGE>
