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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
KEY PRODUCTION COMPANY, INC.
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(Exact name of registrant as specified in its charter)
Delaware 84-1089744
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(State of incorporation) (I.R.S. Employer Identification No.)
707 17th Street, Suite 3300, Denver, CO 80202-3403
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(Address of Principal Executive Offices) (Zip Code)
KEY PRODUCTION COMPANY, INC.
STOCK OPTION AGREEMENT
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(Full title of the Plan)
-With a copy to-
F.H. Merelli, Chairman of the Board,
President and Chief Executive Officer
Key Production Company, Inc. Nick Nimmo, Esq.
707 17th Street, Suite 3300 Holme Roberts & Owen LLP
Denver, Colorado 80202-3403 1700 Lincoln, #4100
(303) 295-3995 Denver, Colorado 80203
- ----------------------------
(Name, address and telephone
number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum Proposed Maxi- Amount of
Securities to be to be Offering Price mum Aggregate Registration
Registered Registered Per Share Offering Price Fee
- ------------------ ---------- ---------------- -------------- ------------
Common Stock, 500,000 $10.40625 $5,203,125 $1,447(1)
$.25 Par Value
(1) Determined under Rule 457.
<PAGE>
Part II of Form S-8
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3 DOCUMENTS INCORPORATED BY REFERENCE
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The following documents filed with the Securities and Exchange
Commission are incorporated by reference into this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for its fiscal year
ended December 31, 1998.
(b) The Company's Quarterly Report on Form 10-Q for its fiscal quarter
ended March 31, 1999.
(c) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
(d) The description of the Company's Common Stock contained in the
Company's Form 8-A Registration Statement, dated September 2,
1988.
Item 4 DESCRIPTION OF SECURITIES
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Because the class of securities offered under the Plans is registered
under Section 12 of the Exchange Act (see Item 3(d) above), this item
is not applicable.
Item 5 INTEREST OF NAMED EXPERTS AND COUNSEL
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None.
Item 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
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In accordance with the General Corporation Law of the State of
Delaware, the Company has included a provision in its Certificate to
limit the personal liability of its directors for violations of their
fiduciary duties. The provision eliminates such directors' personal
liability to the Company or its stockholders for monetary damages,
except:
(1) for any breach of the directors' duty of loyalty to the
Company or its stockholders;
<PAGE>
(2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(3) for unlawful payments of dividends or unlawful stock purchases or
redemptions; or
(4) for any transaction from which any director derived an improper
personal benefit.
This provision protects the Company's directors against personal
liability for monetary damages arising from breaches of their duty of
care. Directors remain liable for breaches of their duty of loyalty to
the Company and its stockholders and for the specific matters set
forth above, as well as for violations of the federal securities laws.
The provision has no effect on the availability of equitable remedies
such as injunction or recision. Additionally, these provisions do not
protect a director from activities undertaken in any capacity other
than that of director.
Section 145 of the Delaware General Corporation Law, inter alia,
authorizes a corporation to indemnify any person who was or is a party
or is threatened to be made a party to any suit or proceeding (other
than an action by or in the right of the corporation) because such
person is or was a director, officer, employee or agent of the
corporation or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation. Similar indemnity is
authorized for such persons against expenses (including attorneys'
fees) actually and reasonably incurred in defense or settlement of any
pending, completed or threatened action or suit by or in the right of
a corporation, if such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have
been adjudged liable to the corporation. Any such indemnification may
be made only as authorized in each specific case upon a determination
by the shareholders or disinterested directors that indemnification is
proper because the indemnitee has met the applicable standard of
conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent
of another corporation or enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would otherwise
have the power to indemnify him.
<PAGE>
Item 7 EXEMPTION FROM REGISTRATION CLAIMED
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Not applicable.
Item 8 EXHIBITS
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Exhibits not incorporated by reference to a prior filing are
designated by an asterisk (*) and are included or filed herewith; all
exhibits not so designated are incorporated by reference to a prior
SEC filing as indicated.
Exhibit Description
- ------- -----------
3.1 Certificate of Incorporation of the Registrant (incorporated by reference
to Exhibit 3.1 to the Registrant's Registration Statement on Form S-4,
registration no. 33-23533 filed with the SEC on August 5, 1988).
3.2 Amendment to Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.2 to the Registrant's Registration Statement on
Form S-4, registration no. 33-23533 filed with the SEC on August 5,
1988).
3.3 Bylaws of the Registrant, as amended and restated on June 8, 1995
(incorporated by reference to Exhibit 3.3 to the Registrant's Form 10-Q
for the quarter ended June 30, 1995, file no. 0-17162).
4.1 Form of Common Stock Certificate (incorporated by reference to Exhibit
4.12 to the Registrant's Amendment No. 1 to Registration Statement on
Form S-4, registration no. 33-23533 filed with the SEC on August 15,
1988).
*5.1 Opinion of Holme Roberts & Owen LLP as to the legality of the securities
being registered, including consent.
10.9 Stock Option Agreement between the Registrant and Francis H. Merelli,
dated September 1, 1992 (incorporated by reference to Exhibit 10.9 to the
Registrant's Form 10-K for the fiscal year ended December 31, 1992, file
no. 0-17162).
*23.1 Consent of Holme Roberts & Owen LLP (included in Exhibit 5.1).
*23.2 Consent of Independent Public Accountants.
*24.1 Powers of Attorney are on the signature pages of the
Registration Statement.
Item 9 UNDERTAKINGS
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(a) Rule 415 Undertakings
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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;
<PAGE>
(ii) to reflect in the prospectus any fact 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;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(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) Filings Incorporating Subsequent Exchange Act Documents by Reference
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The undersigned Registrant hereby undertakes that, for purposes of
determining 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 this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Request for Acceleration of Effective Date or Filing Registration
Statement on Form S-8
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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 discussed in Item 6, 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 such act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in such act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Key
Production Company, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Denver, Colorado on the 28th day of July, 1999.
KEY PRODUCTION COMPANY, INC.
By: /s/ F.H. MERELLI
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F.H. Merelli,
Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
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Each person whose signature appears below does hereby make, constitute
and appoint F.H. Merelli and Monroe W. Robertson, and each of them, his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution to execute, deliver and file with the Securities and Exchange
Commission, for and on his or her behalf, and in any and all capacities, any and
all amendments (including post-effective amendments) to this Registration
Statement with all exhibits thereto and other documents in connection therewith,
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 as fully
to all intents and purposes as he or she 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 hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the date indicated.
Signature Title Date
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/s/ F.H. MERELLI Director, Chairman, President
- ---------------------------- and Chief Executive Officer
F.H. Merelli (Principal Executive Officer) July 28, 1999
/s/ MONROE W. ROBERTSON Senior Vice President
- ---------------------------- and Secretary
Monroe W. Robertson (Principal Financial Officer) July 28, 1999
/s/ CATHY L. ANDERSON Controller
- ---------------------------- (Principal Accounting Officer) July 28,1999
Cathy L. Anderson
/s/ CORTLANDT S. DIETLER Director July 28, 1999
- ----------------------------
Cortlandt S. Dietler
/s/ L. PAUL TEAGUE Director July 28, 1999
- ----------------------------
L. Paul Teague
EXHIBITS 5.1 & 23.1
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[LETTERHEAD OF HOLME ROBERTS & OWEN LLP APPEARS HERE]
July 28, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Key Production Company, Inc.
Form S-8 Registration Statement
Gentlemen:
This firm has acted as counsel to Key Production Company, Inc. (the
"Company"), in connection with the preparation and filing of its registration
statement on Form S-8 under the Securities Act of 1933, as amended, covering the
sale of an aggregate of 500,000 shares of the Company's common stock, $.25 par
value (the "Common Stock"), which may be acquired under the Stock Option
Agreement between the Registrant and Francis H. Merelli, dated September 1,
1992(the "Plans").
We have examined the Company's Certificate of Incorporation and Bylaws
and the record of its corporate proceedings with respect to the registration
statement and have made such other investigation as we have deemed necessary in
order to express the following opinion.
The Common Stock, when sold and delivered as contemplated by the Plans
and the registration statement, will be legally issued, fully paid and
nonassessable.
We hereby consent to all references to this firm in the registration
statement and all amendments to the registration statement. We further consent
to the use of this opinion as an exhibit to the registration statement.
Very truly yours,
HOLME ROBERTS & OWEN LLP
By: /s/ NICK NIMMO
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Nick Nimmo,
Partner
EXHIBIT 23.2
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 24, 1999 included in Key Production Company, Inc.'s Annual Report on
Form 10-K for the fiscal year ended December 31, 1998 and to all references to
our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
/s/ Arthur Andersen LLP
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Denver, Colorado
July 28, 1999
