As filed with the Securities and Exchange Commission on June 4, 1996
Registration No. 33-77102
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
TO FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CAIRN ENERGY USA, INC.
(Exact name of registrant as specified in its charter)
Delaware 23-2169839
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8235 Douglas Avenue, Suite 1221
Dallas, Texas 75225
(Address of principal executive offices) (Zip Code)
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CAIRN ENERGY USA, INC. 1993 STOCK OPTION PLAN
CAIRN ENERGY USA, INC. 1993 DIRECTORS STOCK OPTION PLAN
(Full title of the plans)
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Michael R. Gilbert Copy to:
President Mark D. Wigder, Esq.
Cairn Energy USA, Inc. Jenkens & Gilchrist,
8235 Douglas Avenue, Suite 1221 A Professional Corporation
Dallas, Texas 75225 1445 Ross Avenue, Suite 3200
(214) 369-0316 Dallas, Texas 75202
(Name, address and telephone number
including area code of agent for service)
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<PAGE>
Part II
Information Required in Registration Statement
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description of Exhibit
4.3+ Amendment No. 3 to Cairn Energy USA, Inc. 1993 Stock Option Plan, as
amended.
4.4+ Form of Incentive Stock Option Agreement under the Cairn Energy USA,
Inc. 1993 Stock Option Plan, as amended.
4.5+ Form of Nonstatutory Stock Option Agreement under the Cairn Energy
USA, Inc. 1993 Stock Option Plan, as amended.
- ------------------------
+ Stock option plan, management contract or compensatory arrangement
<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
the requirements for filing on Form S-8 and has duly caused this Post-Affective
Amendment No. 2 to Registration Statement No. 33-77102 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Dallas,
Texas, on June 3, 1996:
CAIRN ENERGY USA, INC.
By: /s/ Michael R. Gilbert
Michael R. Gilbert,
President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to Registration Statement No. 33-77102 has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Office Date
/s/ Michael R. Gilbert President and Chief Executive June 3, 1996
Michael R. Gilbert Officer and Director (Principal
Executive Officer)
/s/ J. Munro M. Sutherland Senior Vice President, Chief June 3, 1996
- -------------------------------------
J. Munro M. Sutherland Financial Officer, Treasurer and
Director (Principal Financial and
Accounting Officer)
/s/ Robert P. Murphy Vice President-Exploration June 3, 1996
- -------------------------------------
Robert P. Murphy and Director
/s/ R. Daniel Robins Director June 3, 1996
- -------------------------------------
R. Daniel Robins
/s/ John C. Halsted Director June 3, 1996
- -------------------------------------
John C. Halsted
/s/ Jack O. Nutter II Director June 3, 1996
- -------------------------------------
Jack O. Nutter, II
CORPDAL:48046.1 15467-00006
<PAGE>
Signature Office Date
/s/ James M. Alexander Director June 3, 1996
- -------------------------------------
James M. Alexander
/s/ Thomas R. Hix Director June 3, 1996
- -------------------------------------
Thomas R. Hix
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
4.3+ Amendment No. 3 to Cairn Energy USA, Inc. 1993 Stock Option Plan, as
amended
4.4+Form of Incentive Stock Option Agreement under the Cairn Energy USA,
Inc. 1993 Stock Option Plan, as amended.
4.5+Form of Nonstatutory Stock Option Agreement under the Cairn Energy USA,
Inc. 1993 Stock Option Plan, as amended.
- ---------------
+ Stock option plan, management contract or compensatory arrangement.
CORPDAL:48046.1 15467-00006
<PAGE>
EXHIBIT 4.3
CORPDAL:48046.1 15467-00006
<PAGE>
AMENDMENT NO. 3
TO THE
CAIRN ENERGY USA, INC.
1993 STOCK OPTION PLAN
This Amendment No. 3 to the Cairn Energy USA, Inc. 1993 Stock Option Plan
(the "Amendment") is hereby adopted by Cairn Energy USA, Inc. on the 29th day of
May, 1996 pursuant to the terms of Section 9 of the Cairn Energy USA, Inc. 1993
Stock Option Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, Cairn Energy USA, Inc., a Delaware corporation (the
"Corporation"), established the Plan as approved and ratified by stockholders
effective April 8, 1993;
WHEREAS, the Corporation subsequently adopted amendments to the Plan;
WHEREAS, pursuant to Section 9 of the Plan, the Corporation, acting
through its Board of Directors, has the right to amend the Plan subject to
stockholder approval;
WHEREAS, the Compensation Committee of the Board of Directors (the
"Committee") has recommended to the Board of Directors of the Corporation that
the Plan be amended to extend the exercise period upon termination of employment
and provide for full vesting on death, effective only for options granted after
the effective date of this Amendment, unless a holder of a granted option
consents to either or both of these changes for his or her granted option, to
increase the maximum number of shares of stock to be granted under the Plan, and
to correct certain typographical errors in a previous amendment;
WHEREAS, the Board of Directors has accepted the recommendation of the
Committee, has obtained the approval of the stockholders of the Corporation, and
has delegated to the Committee the preparation, adoption, and execution of this
Amendment within constraints it established;
NOW THEREFORE, pursuant to its authority under Section 9 of the Plan, the
Corporation hereby amends the Plan, effective May 22, 1996 unless otherwise
indicated below, as follows:
1. Existing Paragraph 2.1 is hereby deleted in its entirety and replaced
with the following new Paragraph 2.1:
"2.1 Description of Stock and Maximum Shares Allocated. The Stock which
may be issued upon the exercise of an Option may either be unissued or
reacquired shares of Stock, as the Board of Directors may, in its sole and
absolute discretion, from time to time determine.
Subject to the adjustments provided in Paragraph 6.6, the aggregate
number of shares of Stock to be issued pursuant to the exercise of all
Options granted under the Plan may equal but shall not exceed 1,150,000
shares of Stock."
2. Effective as of February 23, 1994, Paragraph 6.4 is hereby deleted in
its entirety and the following new paragraph 6.4 is added in its place:
CORPDAL:48046.1 15467-00006
<PAGE>
"6.4. Term, Time of Exercise and Transferability of Options. In
addition to such other terms and conditions as may be included in a
particular Agreement granting an Option, an Option shall be exercisable
during a Holder's lifetime only by the Holder or by the Holder's guardian
or legal representative.
An Option shall not be transferrable other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I of the Employee Retirement Income
Security Act or the rules thereunder.
The provisions of the remainder of this Paragraph shall apply to the
extent a Holder's Agreement does not expressly provide otherwise. If a
Holder ceases to be an Eligible Individual, the portion, if any, of the
Option that is exercisable but remains unexercised on the date the Holder
stops being an Eligible Individual shall terminate ninety (90) days after
such Holder ceases to be an Eligible Individual. Notwithstanding the
foregoing, if a Holder ceases to be an Eligible Individual by reason of
(a) disability (as defined in section 105(d)(4) of the Code immediately
prior to its repeal) or (b) death, the Holder shall have the right for
twelve months after the date of disability or death to exercise an Option
to the extent such Option is exercisable on the date of his disability or
death.
The portion of the Option that is not exercisable on the date the
Holder ceases to be an Eligible Individual shall terminate and be
forfeited to the Corporation on the date of such cessation.
Notwithstanding the previous sentence, if a Change in Control of the
Corporation occurs and, within twenty-four months from the date of the
Change in Control of the Corporation, a Holder ceases to be an Eligible
Individual either because (i) the Corporation terminates the Holder's
employment with the Corporation for a reason other than Due Cause or (ii)
the Holder terminates his employment with the Corporation due to a
Severance Termination by the Holder of the Holder's Employment Agreement,
then any Options held by such Holder shall be exercisable in full on the
date such Holder ceases to be an Eligible Individual and no portion of an
Option held by such Holder shall terminate or forfeit on the date such
holder ceases to be an Eligible Person.
Notwithstanding any other provision of this Plan, no Option shall be
exercisable after the expiration of ten (10) years from the date it is
granted, or the period specified in Paragraph 4.1 if applicable.
The Committee shall have the authority to prescribe in any Agreement
that the Option evidenced by the Agreement may be exercised in full or in
part as to any number of shares subject to the Option at any time or from
time to time during the term of the Option, or in such installments at
such times during said term as the Committee may prescribe; provided,
however, that no part of an Option may be made exercisable during the six
(6) month period beginning on the date the Option was granted. Except as
provided above and unless otherwise provided in any Agreement, an Option
may be exercised at any time or from time to time during the term of the
Option. Such exercise may be as to any or all whole (but no fractional)
shares which have become purchasable under the Option.
Within a reasonable time (or such time as may be permitted by law)
after the Corporation receives written notice that the Holder has elected
to exercise all or a portion of an Option, such notice to be accompanied
by payment in full of the aggregate Option exercise price of the number of
shares of Stock purchased, the Corporation shall issue and deliver a
certificate representing the shares acquired in consequence of the
exercise and any other amounts payable in consequence of such exercise. In
the event that a Holder exercises both an Incentive Option, or portion of
one, and a Nonstatutory Stock Option, or a portion of one, separate Stock
certificates shall be issued, one for the Stock subject to the Incentive
CORPDAL:48046.1 15467-00006
<PAGE>
Option and one for the Stock subject to the Nonstatutory Stock Option. The
number of the shares of Stock transferrable due to an exercise of an
Option under this Plan shall not be increased due to the passage of time,
except as may be provided in an Agreement; provided, however, the number
of such shares of Stock which are transferrable may increase due to the
occurrence of certain events which are fully described in Paragraph 6.5.
Nothing in the Plan or in any Option granted under the Plan shall
require the Corporation to issue any shares upon exercise of any Option if
such issuance would, in the opinion of counsel for the Corporation,
constitute a violation of the Securities Act or any other applicable
statute or regulation, as then in effect. At the time of any exercise of
an Option, the Corporation may, as a condition precedent to the exercise
of such Option, require from the Holder (or in the event of his death, his
legal representatives, heirs, legatees, or distributees) such written
representations, if any, concerning his sophistication, financial means,
access to information about the Corporation, and intentions with regard to
the retention or disposition of the shares being acquired by exercise of
such Option and such written covenants and agreements, if any, as to the
manner of disposal of such shares as, in the opinion of counsel to the
Corporation, may be necessary to ensure that any disposition by such
Holder (or in the event of his death, his legal representatives, heirs,
legatees, or distributees), will not involve a violation of the Securities
Act or any other applicable state or federal statute or regulation, as
then in effect. Certificates for shares of Stock, when issued, may have
the following or similar legend, or statements of other applicable
restrictions, endorsed on them, and may not be immediately transferable:
The shares of stock evidenced by this certificate have been issued to
the registered owner in reliance upon written representations that
these shares have been purchased for investment. These shares have not
been registered under the Securities Act of 1933, as amended, or any
applicable state securities laws, in reliance upon an exemption from
registration. Without such registration, these shares may not be sold,
transferred, assigned or otherwise disposed of unless, in the opinion
of the Corporation and its legal counsel, such sale, transfer,
assignment or disposition will not be in violation of the Securities
Act of 1933, as amended, applicable rules and regulations of the
Securities and Exchange Commission, and any applicable state securities
laws."
3. Paragraph 6.4 is hereby amended to delete the third and fourth
paragraphs of Paragraph 6.4 in their entirety and to replace them with the
following new language:
"The provisions of the remainder of this Paragraph shall apply to the
extent a Holder's Agreement does not expressly provide otherwise. If a
Holder ceases to be an Eligible Individual, the portion, if any, of the
Option that is exercisable but remains unexercised on the date the Holder
stops being an Eligible Individual shall terminate twenty-four (24) months
after such Holder ceases to be an Eligible Individual.
The portion of the Option that is not exercisable on the date the
Holder ceases to be an Eligible Individual shall terminate and be
forfeited to the Corporation on the date of such cessation.
Notwithstanding the previous sentence, if (i) a Change in Control of the
Corporation occurs and, within twenty-four months from the date of the
Change in Control of the Corporation, a Holder ceases to be an Eligible
Individual either because (A) the Corporation terminates the Holder's
employment with the Corporation for a reason other than Due Cause or (B)
the Holder terminates his employment with the Corporation due to a
Severance Termination by the Holder of the Holder's Employment Agreement,
or (ii) a Holder ceases to be an Eligible Individual by reason of death,
any Options held by such Holder shall be exercisable in full on the date
such Holder ceases to be an Eligible Individual, and no portion of an
CORPDAL:48046.1 15467-00006
<PAGE>
Option held by such Holder shall terminate or forfeit on the date such
Holder ceases to be an Eligible Individual. The provisions of this
paragraph of Paragraph 6.4 shall be applied before the provisions of the
immediately preceding paragraph of Paragraph 6.4."
CORPDAL:48046.1 15467-00006
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed by its duly authorized officer on the date first written above.
CAIRN ENERGY USA, INC.
By: /s/ Michael R. Gilbert
Title: President
CORPDAL:48046.1 15467-00006
<PAGE>
EXHIBIT 4.4
CORPDAL:48046.1 15467-00006
<PAGE>
CAIRN ENERGY USA, INC.
1993 STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into this day of , 199 , between Cairn
Energy USA, Inc., a Delaware corporation (the "Corporation"), and (the "Holder")
in connection with the grant of an Incentive Option (defined below) under the
Cairn Energy USA, Inc.
1993 Stock Option Plan (the "Plan"), as amended.
W I T N E S S E T H:
WHEREAS, the Holder is employed by the Corporation or one of its Affiliates
(defined below) in a key position; and
WHEREAS, the Corporation desires to encourage the Holder to own Stock
(defined below) and to give him added incentive to advance the interests of the
Corporation through the Plan; and
WHEREAS, the Corporation adopted the Plan, as approved and ratified by
stockholders, effective April 8, 1993, and subsequently adopted amendments to
the Plan; and
WHEREAS, the Corporation desires to grant the Holder an Incentive Option
to purchase shares of Stock of the Corporation under terms and conditions
established by the Board of Directors (defined below);
NOW, THEREFORE, in consideration of these premises, the parties agree that
the following shall constitute the Agreement between the Corporation and the
Holder:
1. Definitions. For purposes of this Agreement, defined terms shall have
the meanings given to them by the Plan except as specified below:
a. "Affiliate" shall mean (a) any corporation, other than the Corporation,
in an unbroken chain of corporations ending with the Corporation if
each of the corporations, other than the Corporation, owns stock
possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain and (b) any corporation, other than the Corporation, in an
unbroken chain of corporations beginning with the Corporation if each
of the corporations, other than the last corporation in the unbroken
chain, owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
b. "Agreement" shall mean this document as executed by the Corporation and
the Holder, and as it may be subsequently amended.
c. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar or superseding statute or statutes.
d. "Incentive Option" and "Option" shall mean a stock option granted
pursuant to this Agreement that is intended to satisfy the requirements of
section 422 of the Code.
CORPDAL:48046.1 15467-00006
<PAGE>
e. "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar or superseding statute or statutes.
2. Grant of Incentive Option. Subject to the terms and conditions set
forth in this Agreement, the Corporation grants to the Holder an
Incentive Option to purchase from the Corporation during the period
ending ten (10) years from the date of this Agreement shares of Stock
at a price of $ per share, subject to adjustment, if any, as provided
in this Agreement. In no event shall the exercise price per share of
this Option be less than the greater of (a) the par value per share of
Stock or (b) 100% of the Fair Market Value per share of Stock on the
date of grant of this Option.
This Incentive Option is exercisable with respect to the shares of Stock
indicated above on or after the following dates:
shares of Stock
additional shares of Stock
additional shares of Stock
In no event shall the Option be exercisable within the first six months of its
Date of Grant. In addition, the number of shares exercisable under this Option
shall be reduced to the extent necessary so that the sum of:
(a) the aggregate Fair Market Value of shares of Stock subject to
this Incentive Option that first become purchasable in a
calendar year under this Incentive Option, and
(b) the aggregate Fair Market Value of shares of Stock or stock of
any Affiliate (or a predecessor of the Corporation or an
Affiliate) subject to any other incentive stock option (within
the meaning of section 422 of the Code) of the Corporation or
its Affiliates (or a predecessor corporation of any such
corporation), that first become purchasable in a calendar year
under such incentive stock option
does not (with respect to the Holder) exceed $100,000, with such Fair Market
Value to be determined as of the date this Incentive Option or such other
incentive stock option is granted.
For purposes of this Paragraph, "predecessor corporation" means (i) a
corporation that was a party to a transaction described in section 425(a) of the
Code (or that would be so described if a substitution or assumption under such
section had been effected) with the Corporation, (ii) a corporation that at the
time the new incentive stock option (within the meaning of section 422 of the
Code) is granted, is an Affiliate of the Corporation or a predecessor
corporation of any such corporations, or (iii) a predecessor corporation of any
such corporations.
3. Notice of Exercise. This Incentive Option may be exercised in whole or
in part, from time to time, in accordance with Paragraph 2, by written notice to
the Corporation at the address provided in this Agreement, which notice shall:
i. specify the number of whole shares of Stock to be purchased and the
exercise price to be paid for such shares;
CORPDAL:48046.1 15467-00006
<PAGE>
ii. if the person exercising this Incentive Option is not the Holder
himself, contain or be accompanied by evidence satisfactory to the Committee of
such person's right to exercise this Incentive Option; and
(c) be accompanied by payment in full of the purchase price in the form
of cash, a certified or cashier's check to the order of the Corporation, or a
wire transfer of immediately available funds.
This Incentive Option may be exercised only in increments at least equal
to the lesser of one hundred (100) shares or ten percent (10%) of the number of
whole shares as to which it is exercisable.
4. Investment Letter. The Holder agrees that the shares of Stock acquired
on exercise of this ----------------- Incentive Option shall be acquired for his
own account for investment only and not with a view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act or other applicable securities laws. If the Committee so
determines, any Stock certificates issued upon exercise of this Incentive Option
shall bear a legend to the effect that the shares have been so acquired. The
Corporation may, but in no event shall be required to, bear any expenses of
complying with the Securities Act, other applicable securities laws or the rules
and regulations of any national securities exchange or other regulatory
authority in connection with the registration, qualification, or transfer, as
the case may be, of this Incentive Option or any shares of Stock acquired upon
the exercise thereof. The foregoing restrictions on the transfer of the shares
of Stock shall be inoperative if (a) the Corporation previously shall have been
furnished with an opinion of counsel, satisfactory to it, to the effect that
such transfer will not require registration under the Securities Act or other
applicable securities laws or (b) the shares of Stock shall have been duly
registered in compliance with the Securities Act and other applicable securities
laws.
5. Transfer and Exercise of Incentive Option. This Incentive Option shall
not be transferable except by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as
defined in the Code or Title I of the Employee Retirement Income
Security Act ("ERISA") or the rules thereunder. No assignment or
transfer of this Incentive Option, whether voluntary or involuntary, by
operation of law or otherwise, except a transfer by will or by the laws
of descent or distribution or pursuant to a qualified domestic
relations order as defined in the Code or Title I of ERISA or the rules
thereunder, shall vest in the assignee or transferee any interest or
right whatsoever in this Incentive Option.
During the Holder's lifetime, this Incentive Option may be exercised only
by him, his guardian or legal representative or the recipient of this Incentive
Option pursuant to a qualified domestic relations order as defined in the Code
or Title I of ERISA or the rules thereunder.
6. Status of Holder. The Holder shall not be deemed a stockholder of the
Corporation with respect to any of the shares of Stock subject to this
Incentive Option, except to the extent that such shares shall have been
purchased and transferred to him. The Corporation shall not be required
to issue or transfer any certificates for shares of Stock purchased
upon exercise of this Incentive Option until all applicable
requirements of law have been complied with and such shares shall have
been duly listed on any securities exchange on which the Stock may then
be listed.
7. No Effect on Capital Structure. This Incentive Option shall not affect
the right of the Corporation or any Affiliate to reclassify, recapitalize or
otherwise change its capital or debt
CORPDAL:48046.1 15467-00006
<PAGE>
structure or to merge, consolidate, convey any or all of its assets,
dissolve, liquidate, windup, or otherwise reorganize.
8. Expiration of Incentive Option Upon Termination of Employment.
Except as otherwise specifically provided in this Agreement, if a Holder
ceases to be an Eligible Individual, the portion, if any, of the Option that is
exercisable but remains unexercised on the date the Holder stops being an
Eligible Individual shall terminate twenty-four (24) months after such Holder
ceases to be an Eligible Individual.
The portion of the Option that is not exercisable on the date the Holder
ceases to be an Eligible Individual shall terminate and be forfeited to the
Corporation on the date of such cessation. Notwithstanding the previous
sentence, if (i) a Change in Control of the Corporation occurs and, within
twenty-four months from the date of the Change in Control of the Corporation, a
Holder ceases to be an Eligible Individual either because (A) the Corporation
terminates the Holder's employment with the Corporation for a reason other than
Due Cause or (B) the Holder terminates his employment with the Corporation due
to a Severance Termination by the Holder of the Holder's Employment Agreement,
or (ii) a Holder ceases to be an Eligible Individual by reason of death, then
any Options held by such Holder shall be exercisable in full on the date such
Holder ceases to be an Eligible Individual, and no portion of an Option held by
such Holder shall terminate or forfeit on the date such Holder ceases to be an
Eligible Individual. The provisions of this paragraph of Paragraph 8 shall be
applied before the provisions of the immediately preceding paragraph of
Paragraph 8.
9. Adjustments Upon Changes in Capitalization, Merger, Etc. Notwithstanding
any other provision of this Agreement, in the event of any change in the number
of outstanding shares of Stock
(a) effected without receipt of consideration by the Corporation,
by reason of a stock dividend, or split, combination, exchange
of shares or other recapitalization, merger, or otherwise, in
which the Corporation is the surviving corporation, or
(b) by reason of a spin-off of a part of the Corporation into a separate
entity, or assumptions and conversions of outstanding grants due to an
acquisition by the Corporation of a separate entity,
(1) the aggregate number and class of shares subject to this Incentive Option
and (2) the exercise price of this Incentive Option shall be automatically
adjusted to accurately and equitably reflect the effect of such changes. In the
event of a dispute concerning such adjustment, the Committee shall have full
discretion to resolve the dispute. The number of shares subject to this
Incentive Option shall be automatically reduced by any fraction which results
from any adjustment made pursuant to this Paragraph.
In the event of:
(a) a dissolution or liquidation of the Corporation,
(b) a merger or consolidation (other than a merger effecting a
reincorporation of the Corporation in another state or any
other merger or a consolidation in which the stockholders of
the surviving corporation and their proportionate interests in
the surviving corporation immediately after the merger or
consolidation are substantially identical to the stockholders
of the Corporation and their proportionate interests in the
Corporation immediately prior to the merger or consolidation)
in
CORPDAL:48046.1 15467-00006
<PAGE>
which the Corporation is not the surviving corporation (or
survives only as a subsidiary of another corporation in a
transaction in which the stockholders of the parent of the
Corporation and their proportionate interests in the parent
immediately after the transaction are not substantially
identical to the stockholders of the Corporation and their
proportionate interests therein immediately prior to the
transaction; provided that the Board of Directors may at any
time prior to such a merger or consolidation provide by
resolution that the foregoing provisions of this parenthetical
shall not apply if a majority of the board of directors of
such parent immediately after the transaction consists of
individuals who constituted a majority of the Board of
Directors immediately prior to the transaction), or
(c) a transaction in which any person (other than Cairn Energy
PLC) becomes the owner of 50% or more of the total combined
voting power of all classes of stock of the Corporation
(provided, however, that the Board of Directors may at any
time prior to such transaction provide by resolution that this
Subparagraph (c) shall not apply if such acquiring person is a
corporation and a majority of the board of directors of the
acquiring corporation immediately after the transaction
consists of individuals who constituted a majority of the
Board of Directors immediately prior to the acquisition of
such 50% or more total combined voting power)
the Board of Directors may, at its election, as of the effective time of such
transaction, either (1) change the number and kind of shares of stock (including
substitution of shares of another corporation) and exercise price in the manner
it deems appropriate, provided, however, that in no event may any change be made
under this Paragraph which would constitute a "modification" within the meaning
of section 425(h)(3) of the Code, or (2) purchase the Option from the Holder by
tendering cash equal to the Fair Market Value of the Stock represented by the
Option less the exercise price of the Option specified in this Agreement,
without regard to the determination as to the periods and installments of
exercisability made pursuant to this Agreement, if (and only if) the Option has
not at that time expired or been terminated.
10. Committee Authority. Any question concerning the interpretation of this
Agreement, any adjustments required to be made under this Agreement, and any
controversy which may arise under this Agreement shall be determined by the
Committee in its sole discretion.
11. Notice of Disqualifying Disposition. In order to enable the Corporation
to avail itself of ----------------------------------- any income tax deduction
to which it may be entitled, the Holder shall notify the Corporation of his
intent to dispose of any of the shares of Stock purchased pursuant to this
Incentive Option within two (2) years from the date of the grant of the
Incentive Option and one (1) year from the date of exercise of the Incentive
Option, and promptly after such disposition the Holder shall notify the
Corporation of the number of shares of Stock disposed of, the dates of
acquisition and disposition of such shares, and the consideration, if any,
received on such disposition. Nothing in this Paragraph, however, shall give the
Holder any right to dispose of shares of Stock in a manner that is inconsistent
with any provision of the Plan or any Paragraph of this Agreement. If in
connection with any such disposition the Corporation becomes liable for
withholding taxes and has no amounts owing the Holder with which to discharge
its withholding obligation, the Holder shall provide the Corporation with the
amount needed to discharge the Corporation's withholding obligation and shall
indemnify the Corporation against any penalties it may incur through its
inability to apply amounts owing the Holder in discharge of its withholding
obligation.
12. Incentive Option Qualification. This Incentive Option is intended to
qualify as an "incentive stock option" within the meaning of section 422 of the
Internal Revenue Code of 1986,
CORPDAL:48046.1 15467-00006
<PAGE>
as amended, and shall be so construed; provided, however, that
nothing in this Agreement shall be interpreted as a
representation, guarantee or other undertaking on the part of
the Corporation that this Incentive Option is or will be
determined to be an "incentive stock option" within such
section or any other section of the Internal Revenue Code.
13. Plan Controls. The terms of this Agreement are governed by the
terms of the Plan, a copy of which is attached as Exhibit A
and made a part of this Agreement as if fully set forth in
this Agreement, and in the case of any inconsistency between
the terms of this Agreement and the terms of the Plan, the
terms of the Plan shall control.
14. Notice. Whenever any notice is required or permitted under the Plan or
this Agreement, ------ such notice must be in writing and personally delivered,
telecopied (if confirmed), or sent by mail. Any notice required or permitted to
be delivered under the Plan or this Agreement shall be deemed to be delivered on
the date which it is personally delivered, or, whether actually received or not,
on the third business day after it is deposited in the United States mail,
certified or registered, postage prepaid, addressed to the person who is to
receive it at the address which such person has previously specified by written
notice delivered in accordance with this Paragraph. The Corporation or Holder
may change, at any time and from time to time, by written notice to the other,
the address previously specified for receiving notices. Until changed in
accordance with this paragraph, the Corporation and the Holder specify their
respective addresses as set forth below: Corporation:
Cairn Energy USA, Inc.
8235 Douglas Avenue, Suite 1221
Dallas, Texas 75225
Attention: Secretary
Holder:
15. Information Confidential. As partial consideration for the
granting of this Incentive Option, the Holder agrees that he
will keep confidential all information and knowledge that he
has relating to the manner and amount of his participation in
the Plan; provided, however, that such information may be
disclosed as required by law and may be given in confidence to
the Holder's spouse, tax and financial advisors, or to a
financial institution to the extent that such information is
necessary to secure a loan.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed and the Holder has executed this Agreement on the day and year first
above written.
"CORPORATION"
CAIRN ENERGY USA, INC.
By:
CORPDAL:48046.1 15467-00006
<PAGE>
"HOLDER"
CORPDAL:48046.1 15467-00006
<PAGE>
EXHIBIT 4.5
CORPDAL:48046.1 15467-00006
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CAIRN ENERGY USA, INC.
1993 STOCK OPTION PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into this day of , 199 , between Cairn
Energy USA, Inc., a Delaware corporation (the "Corporation"), and (the "Holder")
in connection with the grant of a Nonstatutory Option (defined below) under the
Cairn Energy USA, Inc. 1993 Stock Option Plan (the "Plan"), as amended.
W I T N E S S E T H:
WHEREAS, the Holder is either an employee of the Corporation or one of its
Affiliates (defined below) in a key position; and
WHEREAS, the Corporation
desires to encourage the Holder to own Stock
(defined below) and to give him added incentive to advance the interests of the
Corporation through the Plan; and
WHEREAS, the Corporation adopted the Plan, as approved and ratified by
stockholders, effective April 8, 1993, and subsequently adopted amendments to
the Plan; and
WHEREAS, the Corporation desires to grant the Holder a Nonstatutory Option
to purchase shares of Stock of the Corporation under terms and conditions
established by the Board of Directors (defined below);
NOW, THEREFORE, in consideration of these premises, the parties agree that
the following shall constitute the Agreement between the Corporation and the
Holder:
1. Definitions. For purposes of this Agreement, defined terms shall have
the meanings given to them by the Plan except as specified below:\
1.1 "Agreement" shall mean this document as executed by the Corporation and
the Holder, and as it may be subsequently amended.
1.2 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar or superseding statute or statutes.
1.3 "Nonstatutory Option" and "Option" shall mean a stock option granted
pursuant to this Agreement that does not satisfy the requirements of section 422
of the Code.
1.4 "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar or superseding statute or statutes.
CORPDAL:48046.1 15467-00006
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2. Grant of Nonstatutory Option. Subject to the terms and conditions set
forth in this Agreement, the Corporation grants to the Holder a Nonstatutory
Option to purchase from the Corporation during the period ending ten (10) years
from the date of this Agreement shares of Stock at a price of $ per share,
subject to adjustment, if any, as provided in this Agreement. In no event shall
the exercise price per share of this Option be less than the par value per share
of Stock.
This Nonstatutory Option is exercisable with respect to the shares of
Stock indicated above on or after the following dates:
shares of Stock
additional shares of Stock
additional shares of Stock
In no event shall the Option be exercisable within the first six months of its
Date of Grant.
3. Notice of Exercise. This Nonstatutory Option may be exercised in whole
or in part, from time to time, in accordance with Paragraph 2, by written notice
to the Corporation at the address provided in this Agreement, which notice
shall:
(a) specify the number of whole shares of Stock to be purchased and the
exercise price to be paid for such shares;
(b) if the person exercising this Nonstatutory Option is not the Holder
himself, contain or be accompanied by evidence satisfactory to the Committee of
such person's right to exercise this Nonstatutory Option; and
(c) be accompanied by payment in full of the purchase price in the form
of cash, a certified or cashier's check to the order of the Corporation or a
wire transfer of immediately available funds.
This Nonstatutory Option may be exercised only in increments at least
equal to the lesser of one hundred (100) shares or ten percent (10%) of the
number of whole shares as to which it is exercisable.
4. Investment Letter. The Holder agrees that the shares of Stock acquired
on exercise of this Nonstatutory Option shall be acquired for his own account
for investment only and not with a view to, or for resale in connection with,
any distribution or public offering thereof within the meaning of the Securities
Act or other applicable securities laws. If the Committee so determines, any
Stock certificates issued upon exercise of this Nonstatutory Option shall bear a
legend to the effect that the shares have been so acquired. The Corporation may,
but in no event shall be required to, bear any expenses of complying with the
Securities Act, other applicable securities laws or the rules and regulations of
any national securities exchange or other regulatory authority in connection
with the registration, qualification, or transfer, as the case may be, of this
Nonstatutory Option or any shares of Stock acquired upon the exercise of this
Nonstatutory Option. The foregoing restrictions on the transfer of the shares of
Stock shall be inoperative if (a) the Corporation previously shall have been
furnished with an opinion of counsel, satisfactory to it, to the effect that
such transfer will not require registration under the Securities Act or other
applicable securities laws, or (b) the shares of Stock shall have been duly
registered in compliance with the Securities Act and other applicable securities
laws.
5. Transfer and Exercise of Nonstatutory Option. This Nonstatutory Option
shall not be transferable except by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations
<PAGE>
order as defined in the Code or Title I of the Employee Retirement Income
Security Act ("ERISA") or the rules thereunder. No assignment or transfer of
this Nonstatutory Option, whether voluntary or involuntary, by operation of law
or otherwise, except a transfer by will or by the laws of descent or
distribution or pursuant to a qualified domestic relations order as defined in
the Code or Title I of ERISA or the rules thereunder, shall vest in the assignee
or transferee any interest or right whatsoever in this Nonstatutory Option.
During the Holder's lifetime, this Nonstatutory Option may be exercised
only by him, his guardian or legal representative or the recipient of the
Nonstatutory Option pursuant to a qualified domestic relations order as defined
in the Code or Title I of ERISA or the rules thereunder.
6. Status of Holder. The Holder shall not be deemed a stockholder of the
Corporation with respect to any of the shares of Stock subject to this
Nonstatutory Option, except to the extent that such shares shall have been
purchased and transferred to him. The Corporation shall not be required to issue
or transfer any certificates for shares of Stock purchased upon exercise of this
Nonstatutory Option until all applicable requirements of law have been satisfied
and such shares shall have been duly listed on any securities exchange on which
the Stock may then be listed.
7. No Effect on Capital Structure. This Nonstatutory Option shall not
affect the right of the Corporation or any Affiliate to reclassify, recapitalize
or otherwise change its capital or debt structure or to merge, consolidate,
convey any or all of its assets, dissolve, liquidate, windup, or otherwise
reorganize.
8. Expiration of Nonstatutory Option Upon Termination of Employment.
Except as otherwise specifically provided in this Agreement, if a Holder
ceases to be an Eligible Individual, the portion, if any, of the Option that is
exercisable but remains unexercised on the date the Holder stops being an
Eligible Individual shall terminate twenty-four (24) months after such Holder
ceases to be an Eligible Individual.
The portion of the Option that is not exercisable on the date the Holder
ceases to be an Eligible Individual shall terminate and be forfeited to the
Corporation on the date of such cessation. Notwithstanding the previous
sentence, if (i) a Change in Control of the Corporation occurs and, within
twenty-four months from the date of the Change in Control of the Corporation, a
Holder ceases to be an Eligible Individual either because (A) the Corporation
terminates the Holder's employment with the Corporation for a reason other than
Due Cause or (B) the Holder terminates his employment with the Corporation due
to a Severance Termination by the Holder of the Holder's Employment Agreement,
or (ii) a Holder ceases to be an Eligible Individual by reason of death, then
any Options held by such Holder shall be exercisable in full on the date such
Holder ceases to be an Eligible Individual, and no portion of an Option held by
such Holder shall terminate or forfeit on the date such Holder ceases to be an
Eligible Individual. The provisions of this paragraph of Paragraph 8 shall be
applied before the provisions of the immediately preceding paragraph of
Paragraph 8.
9. Adjustments Upon Changes in Capitalization, Merger, Etc. Notwithstanding
any other provision of this Agreement, in the event of any change in the number
of outstanding shares of Stock
(a) effected without receipt of consideration by the Corporation,
by reason of a stock dividend, split, combination, exchange or
other recapitalization, merger, or otherwise, in which the
Corporation is the surviving corporation, or
CORPDAL:48046.1 15467-00006
<PAGE>
(b) by reason of a spin-off of a part of the Corporation into a separate
entity, or assumptions and conversions of outstanding grants due to an
acquisition by the Corporation of a separate entity,
(1) the aggregate number and class of shares subject to this Nonstatutory Option
and (2) the exercise price of this Nonstatutory Option shall be automatically
adjusted to accurately and equitably reflect the effect of such changes. In the
event of a dispute concerning such adjustment, the Committee shall have full
discretion to resolve the dispute. The number of shares subject to this
Nonstatutory Option shall be automatically reduced by any fraction which results
from any adjustment made pursuant to this Paragraph.
In the event of:
(a) a dissolution or liquidation of the Corporation,
(b) a merger or consolidation (other than a merger effecting a
reincorporation of the Corporation in another state or any other merger or
consolidation in which the stockholders of the surviving corporation and their
proportionate interests in the surviving corporation immediately after the
merger or consolidation are substantially identical to the stockholders of the
Corporation and their proportionate interests in the Corporation immediately
prior to the merger or consolidation) in which the Corporation is not the
surviving corporation (or survives only as a subsidiary of another corporation
in a transaction in which the stockholders of the parent of the Corporation and
their proportionate interests in the parent immediately after the transaction
are not substantially identical to the stockholders of the Corporation and their
proportionate interests therein immediately prior to the transaction; provided,
however, that the Board of Directors may at any time prior to such a merger or
consolidation provide by resolution that the foregoing provisions of this
parenthetical shall not apply if a majority of the board of directors of such
parent immediately after the transaction consists of individuals who constituted
a majority of the Board of Directors immediately prior to the transaction), or
(c) a transaction in which any person (other than Cairn Energy
PLC) becomes the owner of 50% or more of the total combined
voting power of all classes of stock of the Corporation
(provided, however, that the Board of Directors may at any
time prior to such transaction provide by resolution that this
Subparagraph (c) shall not apply if such acquiring person is a
corporation and a majority of the board of directors of the
acquiring corporation immediately after the transaction
consists of individuals who constituted a majority of the
Board of Directors immediately prior to the acquisition of
such 50% or more total combined voting power)
the Board of Directors may, at its election, as of the effective time of such
transaction, either (1) change the number and kind of shares of stock (including
substitution of shares of another corporation) and exercise price in the manner
it deems appropriate, or (2) purchase the Option from the Holder by tendering
cash equal to the Fair Market Value of the Stock represented by the Option less
the exercise price of the Option specified in this Agreement, without regard to
the determination as to the periods and installments of exercisability made
pursuant to this Agreement, if (and only if) the Option has not at that time
expired or been terminated.
10. Committee Authority. Any question concerning the interpretation of this
Agreement, any adjustments required to be made under this Agreement, and any
controversy which may arise under this Agreement shall be determined by the
Committee in its sole discretion.
CORPDAL:48046.1 15467-00006
<PAGE>
11. Plan Controls. The terms of this Agreement are governed by the terms
of the Plan, a copy of which is attached as Exhibit A and made a part of this
Agreement as if fully set forth in this Agreement, and in the case of any
inconsistency between the terms of this Agreement and the terms of the Plan, the
terms of the Plan shall control.
12. Notice. Whenever any notice is required or permitted under this
Agreement, such notice must be in writing and personally delivered, telecopied
(if confirmed), or sent by mail. Any notice required or permitted to be
delivered under this Agreement shall be deemed to be delivered on the date which
it is personally delivered, or, whether actually received or not, on the third
business day after it is deposited in the United States mail, certified or
registered, postage prepaid, addressed to the person who is to receive it at the
address which such person has previously specified by written notice delivered
in accordance with this Agreement. The Corporation or Holder may change, at any
time and from time to time, by written notice to the other, the address
previously specified for receiving notices. Until changed in accordance with
this Agreement, the Corporation and the Holder specify their respective
addresses as set forth below:
Corporation: Cairn Energy USA, Inc.
8235 Douglas Avenue, Suite 1221
Dallas, Texas 75225
Attention: Secretary
Holder:
13. Information Confidential. As partial consideration for the granting of
this Nonstatutory Option, the Holder agrees that he will keep confidential all
information and knowledge that he has relating to the manner and amount of
participation in the Plan; provided, however, that such information may be
disclosed as required by law and may be given in confidence to the Holder's
spouse, tax and financial advisors, or to a financial institution to the extent
that such information is necessary to secure a loan.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed and the Holder has executed this Agreement on the day and year first
above written.
"CORPORATION"
CAIRN ENERGY USA, INC.
By:
"HOLDER"
CORPDAL:48046.1 15467-00006
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