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As filed with the Securities and Exchange Commission on September 29, 2000.
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ESENJAY EXPLORATION, INC.
(Exact Name of Registrant as Specified in its Charter)
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DELAWARE 73-1421000
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
500 NORTH WATER STREET
SUITE 1100 S.
CORPUS CHRISTI, TEXAS 78471
(361) 883-7464
(Address of Principal Executive Offices)
ESENJAY EXPLORATION, INC. LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
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Name, Address and Telephone
Number of Agent for Service: Copy of Communications to:
DAVID B. CHRISTOFFERSON
SENIOR VICE PRESIDENT, SAMUEL N. ALLEN
GENERAL COUNSEL AND CHIEF FINANCIAL OFFICER PORTER & HEDGES, L.L.P.
ESENJAY EXPLORATION, INC. 700 LOUISIANA STREET
500 DALLAS, SUITE 2900 HOUSTON, TEXAS 77002-2764
HOUSTON, TEXAS 77002 (713) 226-0600
(713) 739-7100
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED
AMOUNT TO BE OFFERING MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 2,264,000(1) $2.375 (2) $5,377,000 $1,419.53
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Common Stock, par value $.01 per share 566,585(3) $3.1875 (4) $1,805,989.69 $ 476.78
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(1) 2,264,000 stock options have been granted to employees under the
Esenjay Exploration, Inc. Long-Term Incentive Plan (the "Long-Term
Incentive Plan") at an exercise price of $2.375 per share.
(2) Pursuant to Rule 457(h)(1), the aggregate offering price shall be
calculated on the basis of the exercise price of options issued under
an employee stock option plan.
(3) Pursuant to Rule 457(h), the registration fee is calculated with
respect to the maximum number of the registrant's securities issuable
under the Long-Term Incentive Plan. The Long-Term Incentive Plan
reserves an aggregate number of shares equal to 15% of the total number
of shares of Esenjay Common Stock, par value $.01 per share, for
issuance under the plan. As of May 11, 2000, there were 18,870,573
shares of Esenjay Common Stock issued and outstanding. Therefore, a
total of 2,830,585 shares were reserved for issuance under the
Long-Term Incentive Plan. 2,264,000 shares have already been issued
under the Long-Term Incentive Plan (see footnote 1). 566,585 shares
remain to be issued under the Long-Term Incentive Plan. Furthermore,
pursuant to Rule 416(a), also registered hereunder is an indeterminate
number of shares of Common Stock issuable as a result of the
anti-dilution provisions of the Long-Term Incentive Plan.
(4) Pursuant to Rule 457(c), the registration fee is calculated on the
basis of the average of the high and low prices for the Common Stock on
the NASDAQ Small-Cap Market on September 22, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The following documents listed under this Part I and the documents
incorporated by reference under Item 3 of Part II to this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act, and are incorporated herein by reference.
ITEM 1. PLAN INFORMATION
The information required to be provided pursuant to this Item to the
participants in the Long-Term Incentive Plan is set forth in the Information
Memorandum for the Long-Term Incentive Plan.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The written statement required to be provided to participants in the
Long-Term Incentive Plan pursuant to this Item is set forth in the Information
Memorandum for Long-Term Incentive Plan referenced in Item 1 above.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The contents of the following documents filed by Esenjay Exploration,
Inc., a Delaware corporation ("Esenjay" or the "Registrant"), with the
Securities and Exchange Commission (the "Commission") are incorporated into
this registration statement ("Registration Statement") by reference:
(i) Annual Report on Form 10-KSB for the fiscal year ended December 31,
1999 (as amended by the Annual Report on Form 10-KSB/A filed on May
1, 2000);
(ii) Quarterly Report on Form 10-QSB for the quarter ended March 31,
2000;
(iii) Quarterly Report on Form 10-QSB for the quarter ended June 30, 2000.
All documents filed by us with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the filing date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing such documents. We will provide without
charge to each participant in the Long-Term Incentive Plan, upon written or
oral request of such person, a copy (without exhibits, unless such exhibits
are specifically incorporated by reference) of any or all of the documents
incorporated by reference pursuant to this Item 3.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") permits a
corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he 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, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action.
In a suit brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees,
actually and reasonably incurred in connection with the defense or settlement
of the case, and the corporation may not indemnify for amounts paid in
satisfaction of a judgment or in settlement of the claim. In any such action,
no indemnification may be paid in respect of any claim, issue or matter as to
which such persons shall have been adjudged liable to the corporation except
as otherwise provided by the Delaware Court of Chancery or the court in which
the claim was brought. In any other type of proceeding, the indemnification
may extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses (including attorneys' fees).
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith
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and in a manner he reasonably believed to be in, or not opposed to, the best
interest of the corporation and, in the case of criminal actions or
proceedings, the person had no reasonable cause to believe his conduct was
unlawful. There are additional limitations applicable to criminal actions and
to actions brought by or in the name of the corporation. The determination as
to whether a person seeking indemnification has met the required standard of
conduct is to be made (i) by a majority vote of a quorum of disinterested
members of the board of directors, or (ii) by independent counsel in a written
opinion, if such a quorum does not exist or if the disinterested directors so
direct, or (iii) by the stockholders.
The Certificate of Incorporation and Bylaws of the Company require the
Company to indemnify the Company's directors and officers to the fullest
extent permitted under Delaware law. The Company's Certificate of
Incorporation limits the personal liability of a director to the Company or
its stockholders to damages for breach of the director's fiduciary duty.
The Company has purchased insurance on behalf of its directors and
officers against certain liabilities that may be asserted against, or incurred
by, such persons in their capacities as directors or officers of the
Registrant or that may arise out of their status as directors or officers of
the registrant, including liabilities under the federal and state securities
laws.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act, and will be governed
by the final adjudication of such issue.
The above discussion of the DGCL and our Articles and Bylaws is not
intended to be exhaustive and is qualified in its entirety by the DGCL and our
Articles and Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
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EXHIBIT DESCRIPTION
NO.
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5(a)* Opinion of Porter & Hedges, L.L.P. with respect to legality of securities.
23(a)* Consent of Deloitte & Touche LLP.
23(b)* Consent of Porter & Hedges, L.L.P. (included in Exhibit 5(a)).
24(a)* Powers of Attorney.
* Filed herewith.
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ITEM 9. UNDERTAKINGS
(a) UNDERTAKING TO UPDATE
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement to:
(i) include any prospectus required by section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(ii) reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in the
Registration Statement; and
(iii) include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) UNDERTAKING WITH RESPECT TO DOCUMENTS INCORPORATED BY
REFERENCE
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) UNDERTAKING WITH RESPECT TO INDEMNIFICATION
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on this
29th day of September, 2000.
ESENJAY EXPLORATION, INC.
By: /s/ Michael E. Johnson
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Michael E. Johnson
CHIEF EXECUTIVE OFFICER
In accordance with the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated and on this 29th day of September, 2000.
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SIGNATURE TITLE
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<S> <C>
* Chief Executive Officer and Director (principal
----------------------------------- executive officer)
Michael E. Johnson
/s/ David B. Christofferson Senior Vice President, General Counsel and Chief
----------------------------------- Financial Officer (principal financial officer)
David B. Christofferson
* Controller and Principal Accounting Officer
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Angela D. Conway
* Chairman and Director
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David W. Berry
* Director
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Alex B. Campbell
* Director
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William D. Dodge, III
Director
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Alex M. Cranberg
* Director
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Jeffery B. Pollicoff
Director
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Jack P. Randall
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* Director
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Hobart A. Smith
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/s/ David B. Christofferson
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By: David B. Christofferson,
Attorney-in-Fact
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INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT DESCRIPTION
NO.
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5(a)* Opinion of Porter & Hedges, L.L.P. with respect to legality of securities.
23(a)* Consent of Deloitte & Touche LLP.
23(b)* Consent of Porter & Hedges, L.L.P. (included in Exhibit 5(a)).
24(a)* Powers of Attorney.
* Filed herewith.
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