<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1997
REGISTRATION NO. 333-___________________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ZYDECO ENERGY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0404904
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1710 TWO ALLEN CENTER
1200 SMITH STREET
HOUSTON, TEXAS 77002
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
ZYDECO ENERGY, INC.
1996 INCENTIVE EQUITY PLAN
(FULL TITLE OF THE PLAN)
SAM B. MYERS, JR.
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
1710 TWO ALLEN CENTER
1200 SMITH STREET
HOUSTON, TEXAS 77002
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(713) 659-2222
(TELEPHONE NUMBER, INCLUDING AREA CODE,
OR AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
PROPOSED
MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED/(1)/ PER SHARE/(2)/ PRICE/(2)/ REGISTRATION FEE/(2)/
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock,
$0.001 par value per share 950,000 Shares $5.375 $5,106,250 $1,547.34
=======================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act, based
upon the average of the bid and asked price of the Registrant's Common Stock
on the NASDAQ Small Cap Issuer Market on May 14, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S-8 will be sent or given to participating employees as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"). These documents and the documents incorporated by reference hereto
pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Company incorporates herein by reference the following documents,
or portions of documents, as of their respective dates as filed with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended.
1. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
2. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996; and
3. The description of the Company's common stock, par value $.001
per share (the "Common Stock"), contained in the registration statement
on Form 8-A, dated July 13, 1993.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all such 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.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement since each class of securities to be offered is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is governed by Section 145 of the General Corporation Law
of the State of Delaware (the "DGCL"), which provides that a corporation
may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement in connection with specified actions, suits
or proceedings, whether civil, criminal, administrative or investigative
(other than action by or in the right of the corporation (a "derivative
action")), if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceedings, had no reasonable
cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification
only extends to expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found
liable to the corporation. The statute provides that it is not exclusive
of other indemnification that may be granted by a corporation's charter,
by-laws, disinterested director vote, stockholder vote, agreement or
otherwise.
Article VIII (B) of the Company's Certificate of Incorporation requires
indemnification of directors and officers to the full extent permitted
under the DGCL. Subject to any restrictions imposed by the DGCL, Article
VIII of the
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<PAGE>
Company's Bylaws provide a right to indemnification for all expense,
liability and loss (including attorneys' fees) actually and reasonably
incurred by any person in connection with any actual or threatened
proceeding by reason of the fact that such person is or was serving as a
director or officer of the Company or that, being or having been such a
director or officer of the Company, such person is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, if he
acted in good faith and in a manner he reasonably believed to be in the
best interest of the corporation. The Company's Bylaws also provide that
the Company may, by action of its Board of Directors, provide
indemnification to its employees or agents with the same scope and effect
as the foregoing indemnification of directors and officers.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not
be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability
for (i) any breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) payments of
unlawful dividends or unlawful repurchases or redemptions, or (iv) any
transaction from which the director derived an improper personal benefit.
Article VIII (A) of the Company's Certificate of Incorporation, as
amended, provides that to the full extent that the DGCL permits the
limitation or elimination of the liability of directors, a director of the
Company shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. Any amendment or
repeal of such Article VIII (A) will not adversely affect any right or
protection of a director of the Company for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
Section 8.6 of the Bylaws permits the Company to purchase insurance
coverage for officers, directors, employees and agents for liability
arising out of such status, whether or not the Company would have the power
to indemnify them.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
5.1* Opinion of Andrews & Kurth L.L.P., as to the legality of the
securities being registered.
23.1 Consent of Counsel (included in the opinion filed as Exhibit 5.1 to
this Registration Statement).
23.2* Consent of Ryder Scott Company Petroleum Engineers.
23.3* Consent of Arthur Andersen LLP.
24.1 Power of Attorney (set forth on the signature page contained in
Part II of this Registration Statement).
99.1* Zydeco Energy, Inc. 1996 Incentive Equity Plan.
_________________
* Filed with this Registration Statement.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-2
<PAGE>
(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; notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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) 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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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.
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<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-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
19th day of May, 1997.
Zydeco Energy, Inc.
By /s/ Sam B. Myers, Jr.
---------------------
Sam B. Myers, Jr.
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Zydeco Energy, Inc. (the "Company") hereby constitutes and
appoints Sam B. Myers, Jr. and Edward R. Prince, Jr. , or either of them
(with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and on
his behalf and in his name, place and stead, in any and all capacities, to
sign, execute and file this Registration Statement under the Securities
Act, as amended, and any or all amendments (including, without limitation,
post-effective amendments), with all exhibits and any and all documents
required to be filed with respect thereto, with the Commission or any
regulatory authority, granting unto such attorneys-in-fact and agents, and
each of them acting alone, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same, as fully to all intents and
purposes as he himself might or could do if personally present, hereby
ratifying and confirming all that such attorneys-in-fact and agents, or any
of them, or their substitute or substitutes, may lawfully do or cause to be
done.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C> <C>
/s/ Sam B. Myers, Jr. Chairman of the Board, May 19, 1997
- ----------------------------- Chief Executive Officer
Sam B. Myers, Jr. (Principal Executive Officer), and
Director
/s/ Edward R. Prince, Jr. Vice-Chairman of the Board and May 19, 1997
- ----------------------------- Director
Edward R. Prince, Jr.
/s/ John O. Smith President, Chief Operating May 19, 1997
- ----------------------------- Officer and Director
John O. Smith
/s/ W. Kyle Willis Vice President, Treasurer, and May 19, 1997
- ----------------------------- Chief Financial Officer
W. Kyle Willis (Chief Accounting Officer)
/s/ Philip A. Tuttle Director May 19, 1997
- -----------------------------
Philip A. Tuttle
/s/ Harry C. Johnson Director May 19, 1997
- -----------------------------
Harry C. Johnson
/s/ Charles E. Bradley, Sr. Director May 19, 1997
- -----------------------------
Charles E. Bradley, Sr.
</TABLE>
II-4
<PAGE>
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
members of the Compensation Committee, functioning as the Plan
Administrator of the Zydeco Energy, Inc. 1996 Incentive Equity Plan, have
duly caused the Registration Statement to be signed on behalf of the
undersigned, thereunto duly authorized, in the City of Houston, State of
Texas on May 19, 1997.
ZYDECO ENERGY, INC. 1996 INCENTIVE EQUITY PLAN
/S/ PHILIP A. TUTTLE
Philip A. Tuttle
/S/ CHARLES E. BRADLEY, SR.
Charles E. Bradley, Sr.
/S/ HARRY C. JOHNSON
Harry C. Johnson
II-5
<PAGE>
EXHIBIT 5.1
May 19, 1997
Board of Directors
Zydeco Energy, Inc.
1710 Two Allen Center
1200 Smith Street
Houston Texas 77002
Gentlemen:
We have acted as counsel to Zydeco Energy, Inc., a Delaware
corporation (the "Company") in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement"), relating to the
registration under the Securities Act of 1933, as amended, of the issuance
of 950,000 shares of Common Stock, par value $0.001 per share, of the
Company (the "Shares") issuable upon the exercise of options (the
"Options") granted pursuant to the Zydeco Energy, Inc. 1996 Incentive
Equity Plan (the "Plan").
As the basis for the opinions hereinafter expressed, we have
examined such corporate records and documents, certificates of corporate
and public officials and such other instruments as we have deemed necessary
for the purposes of the opinions contained herein. As to all matters of
fact material to such opinions, we have relied upon the representations of
officers of the Company. We have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
and the conformity with the original documents of all documents submitted
to us as copies.
Based upon the foregoing and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares
to be issued upon proper exercise of the Options have been duly authorized,
and that the Shares, when issued upon proper exercise of the Options, will
be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Andrews & Kurth L.L.P.
Andrews & Kurth L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
We hereby consent to the incorporation by reference in this Form S-8 of
Zydeco Energy, Inc. to the reference to our firm in the current report on
Form 10-K for the year ended December 31, 1996, for Zydeco Energy, Inc.
under the headings "Oil and Gas Reserves" and "Supplemental Information on
Oil and Gas Producing Activities".
/S/ RYDER SCOTT COMPANY PETROLEUM ENGINEERS
RYDER SCOTT COMPANY PETROLEUM ENGINEERS
Houston, Texas
May 19, 1997
<PAGE>
EXHIBIT 23.3
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
28, 1997 (except with respect to the matter discussed in Note 10, as to
which the date is March 14, 1997) included in Zydeco Energy, Inc.'s Form
10-K for the year ended December 31, 1996 and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Houston, Texas
May 19, 1997
<PAGE>
EXHIBIT 99.1
As Adopted by the Board of Directors
On January 4, 1996
And As Amended on March 3, 1997
ZYDECO ENERGY, INC.
1996 INCENTIVE EQUITY PLAN
AS AMENDED ON March 3, 1997
Zydeco Energy, Inc., a Delaware corporation (the "Company"), hereby adopts
the 1996 Incentive Equity Plan of Zydeco Energy, Inc. (the "Plan") effective as
of January 4, 1996, subject to stockholder approval, and amended by the Board of
Directors on March 3, 1997.
1. Purpose. The purpose of the Plan is to promote the interests of the
Company by encouraging employees of the Company and its Subsidiaries to acquire
or increase their equity interests in the Company and to provide a means whereby
employees may develop a sense of proprietorship and personal involvement in the
development and financial success of the Company, and to encourage them to
remain with and devote their best efforts to the business of the Company,
thereby advancing the interests of the Company and its stockholders. The Plan
is also contemplated to enhance the ability of the Company and its Subsidiaries
to attract and retain the services of individuals who are essential for the
growth and profitability of the Company.
2. Definitions. As used in this Plan:
(a) "Appreciation Right" means a right granted pursuant to Paragraph
5.
(b) "Award" means an Appreciation Right, an Option Right, Phantom
Shares, a Performance Unit, Bonus Stock, or Restricted Stock.
(c) "Board" means the Board of Directors of the Company.
(d) "Bonus Stock" means unrestricted shares of Common Stock granted
pursuant to Paragraph 9.
(e) "Change in Control" shall occur if:
(i) the individuals who, as of January 1, 1996, constitute the
Board (the "Incumbent Board"), cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director subsequent to January 1, 1996 whose election, or
nomination for election by the Company's stockholders, was approved by
a vote of at least two-thirds of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board; or
<PAGE>
(ii) any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended), but not including Sam B. Myers, Jr., the Bon Temps Trust,
The SBM III Trust or The MFM Trust or any trustee or beneficiary of
the foregoing, or any individual, entity or group which is controlled
(whether directly or indirectly and whether through ownership of
voting securities, contract or otherwise) by, or under common control
with, any one or more of Sam B. Myers, Jr., the Bon Temps Trust, The
SBM III Trust or The MFM Trust or any trustee or beneficiary of the
foregoing, acquires (directly or indirectly) the beneficial ownership
(within the meaning of Rule 13d-3 promulgated under such Act) of more
than 50% of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election
of directors ("Voting Power"); or
(iii) voting securities of the Company representing more than
25% of the Voting Power shall be purchased pursuant to a tender or
exchange offer (other than a tender or exchange offer made by the
Company); or
(iv) the Company's stockholders shall approve a merger or
consolidation, sale or disposition of all or substantially all of the
Company's assets or a plan of liquidation or dissolution of the
Company, other than (A) a merger or consolidation in which the voting
securities of the Company outstanding immediately prior thereto will
become (by operation of law), or are to be converted into, voting
securities of the surviving corporation or its parent corporation
immediately after such merger or consolidation that are owned by the
same person or entity or persons or entities as immediately prior
thereto and possess at least 50% of the Voting Power held by the
voting securities of the surviving corporation or its parent
corporation, (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended) acquires
more than 50% of the Voting Power other than an individual, entity or
group that held more than 50% of the Voting Power immediately prior to
such transaction or (C) a merger or consolidation in which the Company
is the surviving corporation and such transaction was determined by
action of the Board not to be a Change in Control, which transaction
and determination was approved by a majority of the Board in actions
taken prior to, and with respect to, such transaction.
(f) "Code" means the Internal Revenue Code of 1986, as in effect from
time to time.
(g) "Committee" means the Stock Plan Committee of the Board.
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<PAGE>
(h) "Common Stock" means the Common Stock, $0.001 par value, of the
Company or any security into which such Common Stock may be changed by
reason of any transaction or event of the type described in Paragraph 13.
(i) "Date of Grant" means the date specified by the Committee on which
such Award will become effective, which date will not be earlier than the
date on which the Committee takes action with respect thereto.
(j) "Dividend Equivalent" means, with respect to a Phantom Share, an
amount equal to the amount of any dividends that are declared and become
payable after the Date of Grant for such Award and on or before the date
such Award is paid or forfeited, as the case may be.
(k) "Grant Price" means the price per share of Common Stock at which
an Appreciation Right not granted in tandem with an Option Right is
granted.
(l) "Management Objectives" means the objectives, if any, established
by the Committee that are to be achieved with respect to an Award granted
under this Plan, which may be described in terms of Company-wide
objectives, in terms of objectives that are related to performance of the
division, Subsidiary, department or function within the Company or a
Subsidiary in which the Participant receiving the Award is employed or in
individual or other terms, and which will relate to the period of time
(Performance Cycle) determined by the Committee. The Management Objectives
intended to qualify under Section 162(m) of the Code shall be with respect
to one or more of the following: net income, cash flow, reserve additions,
total capitalization, total stockholder return, assets, exploration
successes, production volumes, finding and development costs, costs
reductions, environmental matters, return on sales, profit margin, earnings
per share, or personal objectives tied to operational studies, implementing
policies and plans, negotiating transactions and sales, developing long-
term business goals and managerial responsibilities and assessments as may
be specified by the Committee. Which objectives to use with respect to an
Award, the weighting of the objectives if more than one is used, and
whether the objective is to be measured against a Company-established
budget or target, an index or a peer group of companies, shall be
determined by the Committee in its discretion at the time of grant of the
Award. A Management Objective need not be based on an increase or a
positive result and may include, for example, maintaining the status quo or
limiting economic losses. The Committee, in its sole discretion and
without the consent of the Participant, may amend an Award to reflect (1) a
change in corporate capitalization, such as a stock split or dividend, (2)
a corporate transaction, such as a corporate merger, a corporate
consolidation, any corporate separation (including a spinoff or other
distribution of stock or property by a corporation), any corporate
reorganization (whether or not such reorganization comes within the
definition of such term in section 368), or (3) any partial or complete
corporate liquidation. With respect to an Award that is subject to
Management Objectives,
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<PAGE>
the Committee must first certify that the Management Objectives have been
achieved before the Award may be paid.
(m) "Market Value per Share" means, at any date:
(i) If the shares of Common Stock are listed on a national
securities exchange or the NASDAQ National Market System and such
shares traded on such date, the last reported sales price per share on
such exchange or NASDAQ National Market System on that date as
reported in any newspaper of general circulation;
(ii) If the shares of Common Stock are listed on a national
securities exchange or the NASDAQ National Market System and such
shares did not trade on such date, the last reported sales price per
share on such exchange or NASDAQ National Market System on the next
day prior thereto on which the shares traded as reported in any
newspaper of general circulation;
(iii) If the shares of Common Stock are quoted on NASDAQ (other
than the NASDAQ National Market System) or any similar system of
automated dissemination of quotations of securities prices in common
use, the mean between the closing high bid and low asked quotations of
the shares on such system on the relevant date as reported in any
newspaper of general circulation; or
(iv) If none of the above applies, a value determined by any fair
and reasonable means prescribed by the Committee.
(n) "Option Price" means the purchase price per share payable on
exercise of an Option Right.
(o) "Option Right" means the right to purchase a share of Common Stock
upon exercise of an option granted pursuant to Paragraph 4.
(p) "Participant" means an Employee who is selected by the Committee
to receive an Award under the Plan.
(q) "Performance Unit" means a unit equivalent to $100 (or such other
value as the Committee determines) awarded pursuant to Paragraph 8.
(r) "Phantom Shares" means notional shares of Common Stock awarded
pursuant to Paragraph 7.
(s) "Restricted Stock" means shares of Common Stock granted or sold
pursuant to Paragraph 6 as to which neither the ownership restrictions nor
the restriction on transfers referred to therein has expired.
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<PAGE>
(t) "Rule 16b-3" means Rule 16b-3 of the Securities and Exchange
Commission (or any successor rule to the same effect) as in effect from
time to time.
(u) "Spread" means the amount determined by multiplying (i) the excess
of the Market Value per Share on the date when an Appreciation Right is
exercised over the Option Price provided for in the related Option Right
or, if there is no tandem Option Right, the Grant Price provided for in the
Appreciation Right by (ii) the number of shares of Common Stock in respect
of which the Appreciation Right is exercised.
(v) "Subsidiary" means, at any time, any corporation in which at the
time the Company then owns or controls, directly or indirectly, not less
than 50% of the total combined voting power represented by all classes of
stock issued by such corporation.
3. Shares Available Under Plan. Subject to adjustments as provided in
Paragraph 13, (i) 950,000 is the maximum number of shares of Common Stock which
may be issued and/or covered by all outstanding Awards under this Plan, of which
number no more than 50,000 shares will be issued as Restricted Stock and/or
Bonus Stock, and (ii) 200,000 is the maximum number of shares of Common Stock
for which Option Rights and/or Appreciation Rights may be granted under this
Plan to any one Participant during any calendar year. Such shares may be shares
of original issuance or treasury shares or a combination of the foregoing. Upon
exercise of any Appreciation Rights or the payment of any Phantom Shares, there
will be deemed to have been delivered under this Plan for purposes of this
Paragraph 3 the number of shares of Common Stock covered by the Appreciation
Rights or equal to the Phantom Shares, as applicable, regardless of whether such
Appreciation Rights or Phantom Shares were paid in cash or shares of Common
Stock. Subject to the provisions of the preceding sentence, any shares of
Common Stock which are subject to Option Rights, Appreciation Rights, or Phantom
Shares awarded or sold as Restricted Stock that are terminated unexercised,
forfeited or surrendered or which expire for any reason will again be available
for issuance under this Plan, unless, with respect to Restricted Stock, the
Participant has received benefits of ownership with respect to such shares, such
as dividends, but not including voting rights.
4. Option Rights. The Committee may from time to time authorize grants
to any Participant of options to purchase shares of Common Stock upon such terms
and conditions as it may determine in accordance with the following provisions:
(a) Each grant will specify the number of shares of Common Stock to
which it pertains.
(b) Each grant will specify its Option Price, which may not be less
than 100% of the Market Value per Share on the Date of Grant.
(c) Each grant will specify that the Option Price will be payable (i)
in cash by check acceptable to the Company, (ii) by the transfer to the
Company of shares of Common Stock already-owned by the Participant having
an aggregate Market Value per Share at the
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<PAGE>
date of exercise equal to the aggregate Option Price, (iii) from the
proceeds of a sale through a broker of some or all of the shares to which
such exercise relates, or (iv) by a combination of such methods of payment.
(d) Successive grants may be made to the same Participant whether or
not any Option Rights previously granted to such Participant remain
unexercised.
(e) Each grant will specify the required period or periods of
continuous service by the Participant with the Company and/or any
Subsidiary and/or the Management Objectives (if any) to be achieved before
the Option Rights or installments thereof will become exercisable, and any
grant may provide for the earlier exercise of the Option Rights in the
event of a Change in Control or other corporate transaction or event or
upon termination of the Participant's employment due to death, disability,
retirement or otherwise.
(f) Each grant the exercise of which, or the timing of the exercise of
which, is dependent, in whole or in part, on the achievement of Management
Objectives may specify a minimum level of achievement in respect of the
specified Management Objectives below which no Options Rights will be
exercisable and may set forth a formula or other method for determining the
number of Option Rights that will be exercisable if performance is at or
above such minimum but short of full achievement of the Management
Objectives.
(g) Option Rights granted under this Plan may be (i) options which are
intended to qualify as incentive stock options under Section 422 of the
Code, (ii) options which are not intended to so qualify or (iii)
combinations of the foregoing.
(h) Each grant shall specify the period during which the Option Right
may be exercised, but no Option Right will be exercisable more than ten
years from the Date of Grant.
(i) Each grant of Option Rights will be evidenced by an agreement
executed on behalf of the Company by any officer and delivered to the
Participant and containing such terms and provisions, consistent with this
Plan, as the Committee may approve.
5. Appreciation Rights. The Committee may also from time to time
authorize grants to any Participant of Appreciation Rights upon such terms and
conditions as it may determine in accordance with this Paragraph. Appreciation
Rights may be granted in tandem with Option Rights or separate and apart from a
grant of Option Rights. An Appreciation Right will be a right of the
Participant granted such Award to receive from the Company, upon exercise, an
amount which will be determined by the Committee at the Date of Grant and will
be expressed as a percentage of the Spread (not exceeding 100%) at the time of
exercise. An Appreciation Right granted in tandem with an Option Right may be
exercised only by surrender of the related Option Right. Each grant of an
Appreciation Right may utilize any or all of the authorizations, and will be
subject to all of the limitations, contained in the following provisions:
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(a) Each grant will state whether it is made in tandem with Option
Rights and, if not made in tandem with any Option Rights, will specify the
number of shares of Common Stock in respect of which it is made.
(b) Each grant made in tandem with Option Rights will specify the
Option Price and each grant not made in tandem with Option Rights will
specify the Grant Price, which in either case will not be less than 100% of
the Market Value per Share on the Date of Grant.
(c) Any grant may specify that the amount payable on exercise of an
Appreciation Right may be paid by the Company in (i) cash, (ii) shares of
Common Stock having an aggregate Market Value per Share equal to the Spread
or (iii) any combination thereof, as determined by the Committee in its
sole discretion.
(d) Any grant may specify that the amount payable on exercise of an
Appreciation Right may not exceed a maximum specified by the Committee at
the Date of Grant (valuing shares of Common Stock for this purpose at their
Market Value per Share at the date of exercise).
(e) Each grant will specify the required period or periods of
continuous service by the Participant with the Company and/or any
Subsidiary and/or Management Objectives to be achieved before the
Appreciation Rights or installments thereof will become exercisable, and
will provide that no Appreciation Right may be exercised except at a time
when the Spread is positive and, with respect to any grant made in tandem
with Option Rights, when the related Option Right is also exercisable. Any
grant may provide for the earlier exercise of the Appreciation Rights in
the event of a Change in Control or other corporate transaction or event or
upon the Participant's termination due to death, disability or retirement.
(f) Each grant the exercise of which, or the timing of the exercise of
which, is dependent, in whole or in part, on the achievement of Management
Objectives may specify a minimum level of achievement in respect of the
specified Management Objectives below which no Appreciation Rights will be
exercisable and may set forth a formula or other method for determining the
number of Appreciation Rights that will be exercisable if performance is at
or above such minimum but short of full achievement of the Management
Objectives.
(g) Each grant of an Appreciation Right will be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant receiving the grant, which agreement will
describe such Appreciation Right, identify any Option Right granted in
tandem with such Appreciation Right, state that such Appreciation Right is
subject to all the terms and conditions of this Plan and contain such other
terms and provisions, consistent with this Plan, as the Committee may
approve.
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6. Restricted Stock. The Committee may also from time to time authorize
grants or sales to any Participant of Restricted Stock upon such terms and
conditions as it may determine in accordance with the following provisions:
(a) Each grant or sale will constitute an immediate transfer of the
ownership of shares of Common Stock to the Participant in consideration of
the performance of services, entitling such Participant to voting and other
ownership rights, but subject to the restrictions hereinafter referred to.
Each grant or sale may limit the Participant's dividend rights during the
period in which the shares of Restricted Stock are subject to any such
restrictions.
(b) Each grant or sale will specify the Management Objectives, if any,
that are to be achieved in order for the ownership restrictions to lapse.
Each grant or sale that is subject to the achievement of Management
Objectives will specify a minimum acceptable level of achievement in
respect of the specified Management Objectives below which the shares of
Restricted Stock will be forfeited and may set forth a formula or other
method for determining the number of shares of Restricted Stock with
respect to which restrictions will lapse if performance is at or above such
minimum but short of full achievement of the Management Objectives.
(c) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than the Market Value per Share at the Date of Grant.
(d) Each such grant or sale will provide that the shares of Restricted
Stock covered by such grant or sale will be subject, for a period to be
determined by the Committee at the Date of Grant, to one or more
restrictions, including, without limitation, a restriction that constitutes
a "substantial risk of forfeiture" within the meaning of Section 83 of the
Code and the regulations thereunder, and any grant or sale may provide for
the earlier termination of such period in the event of a Change in Control
or other corporate transaction or event or upon termination of the
Participant's employment due to death, disability, retirement or otherwise.
(e) Each such grant or sale will provide that during the period for
which such restriction or restrictions are to continue, the transferability
of the Restricted Stock will be prohibited or restricted in a manner and to
the extent prescribed by the Committee at the Date of Grant (which
restrictions may include, without limitation, rights of repurchase or first
refusal by the Company or provisions subjecting the Restricted Stock to
continuing restrictions in the hands of any transferee).
(f) Each grant or sale of Restricted Stock will be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve.
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(g) Unless otherwise approved by the Committee, certificates
representing shares of Common Stock transferred pursuant to a grant of
Restricted Stock will be held in escrow pursuant to an agreement
satisfactory to the Committee until such time as the restrictions on
transfer have expired or the shares have been forfeited.
(h) The maximum number of shares of Restricted Stock that may be
granted or sold to any one Participant in any calendar year is 50,000
shares.
7. Phantom Shares. The Committee may also from time to time authorize
grants to any Participant of Phantom Shares upon such terms and conditions as it
may determine in accordance with the following provisions:
(a) Each grant will specify the number of Phantom Shares to which it
pertains and the payment or crediting of any Dividend Equivalents with
respect to such Phantom Shares.
(b) Each grant will specify the Management Objectives, if any, that
are to be achieved in order for the Phantom Shares to be earned. Each
grant that is subject to the achievement of Management Objectives will
specify a minimum acceptable level of achievement in respect of the
specified Management Objectives below which the Phantom Shares will be
forfeited and may set forth a formula or other method for determining the
number of Phantom Shares to be earned if performance is at or above such
minimum but short of full achievement of the Management Objectives.
(c) Each grant will specify the time and manner of payment of Phantom
Shares which have been earned, which payment may be made in (i) cash, (ii)
shares of Common Stock or (iii) any combination thereof, as determined by
the Committee in its sole discretion.
(d) Each grant of Phantom Shares will be evidenced by an agreement
executed on behalf of the Company by any officer and delivered to and
accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve, including
provisions relating to a Change in Control or other corporate transaction
or event or upon the Participant's termination due to death, disability or
retirement.
(e) The maximum number of Phantom Shares that may be granted to any
one Participant in any calendar year is 50,000 shares.
8. Performance Units. The Committee may also from time to time authorize
grants to any Participant of Performance Units upon such terms and conditions as
it may determine in accordance with the following provisions:
(a) Each grant will specify the number of Performance Units to which
it pertains.
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(b) Each grant will specify the Management Objectives that are to be
achieved in order for the Performance Units to be earned. Each grant will
specify a minimum acceptable level of achievement in respect of the
specified Management Objectives below which no payment will be made and may
set forth a formula or other method for determining the amount of payment
to be made if performance is at or above such minimum but short of full
achievement of the Management Objectives.
(c) Each grant will specify the time and manner of payment of
Performance Units which have become payable, which payment may be made in
(i) cash, (ii) shares of Common Stock having an aggregate Market Value per
Share equal to the aggregate value of the Performance Units which have
become payable or (iii) any combination thereof, as determined by the
Committee in its sole discretion at the time of payment.
(d) Each grant of a Performance Unit will be evidenced by an agreement
executed on behalf of the Company by any officer and delivered to and
accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve, including
provisions relating to a Change in Control or other corporate transaction
or event or upon the Participant's termination of employment due to death,
disability, retirement or otherwise.
(e) The maximum amount of compensation that may be made subject to any
Performance Unit grant made to any one Participant in any calendar year is
$100,000.
9. Bonus Stock. The Committee may also from time to time authorize
grants to any Participant of Bonus Stock, which shall constitute a transfer of
shares of Common Stock, without other payment therefor, as additional
compensation for the Participant's services to the Company or its Subsidiaries.
10. Special Post-Termination Forfeiture of Awards. The Committee, in its
discretion, may provide with respect to the grant of any Award that such Award
shall not be exercisable or payable, as the case may be, following a
Participant's termination of employment if such Participant engages in
competition with the Company or in other activity that the Committee deems
adverse to the interests of the Company. In addition, the Committee may also
provide that an Award exercised or paid within the two-year period immediately
preceding any such prohibited activity by the Participant shall be forfeited by
the Participant.
11. Pre-1996 Options. Nothing in this amendment and restatement of the
Plan shall operate or be construed as changing or modifying the terms of any
option granted prior to January 4, 1996 and outstanding on such date and such
options shall continue, unchanged, in accordance with the terms of their grants,
including, to the extent applicable, the terms of the 1995 Employee Stock Option
Plan of Zydeco Exploration, Inc. without amendment or modification made hereby.
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12. Transferability. No Award that has not become payable or earned will
be transferable by a Participant other than by will or the laws of descent and
distribution. Option Rights or Appreciation Rights will be exercisable during
the Participant's lifetime only by the Participant or by the Participant's
guardian or legal representative.
13. Adjustments. The Board may, but shall not be obligated to, make or
provide for such adjustments in the maximum number of shares specified in
Paragraph 3, in the numbers of shares of Common Stock covered by outstanding
Option Rights, Appreciation Rights and Phantom Shares granted hereunder, in the
Option Price or Grant Price applicable to any such Option Rights and
Appreciation Rights, and/or in the kind of shares covered thereby (including
shares of another issuer), as the Board, in its sole discretion exercised in
good faith, may determine is equitably required to prevent dilution or
enlargement of the rights of Participants that otherwise would result from any
stock dividend, stock split, combination of shares, recapitalization or other
change in the capital structure of the Company, merger, consolidation,
reorganization, partial or complete liquidation, issuance of rights or warrants
to purchase securities or any other corporation transaction or event having an
effect similar to any of the foregoing. Notwithstanding the foregoing, upon a
Change in Control all Awards that have been granted hereunder more than six
months prior to the date of such event be canceled by action of the Board at
its sole and absolute discretion, effective on the date of such event, and, in
full consideration of such cancellation, the Participant shall be paid an amount
in cash equal to the excess of (i) the value, as determined by the Board in its
sole and absolute discretion, of the Award less (ii) the exercise price, if any,
of the Award.
14. Fractional Shares. The Company will not be required to issue any
fractional share of Common Stock pursuant to this Plan. The Committee may
provide for the elimination of fractions or the settlement of fractions in
cash.
15. Withholding of Taxes. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any grant or
payment made to a Participant or any other person under this Plan, or is
requested by a Participant to withhold additional amounts with respect to such
taxes, and the amounts available to the Company for such withholding are
insufficient, it will be a condition to the receipt of such grant or payment
that the Participant or such other person make arrangements satisfactory to the
Company for the payment of balance of such taxes required or requested to be
withheld, which arrangements in the discretion the Committee may include
relinquishment of a portion of such Award or payment, payment through a broker
sale in conjunction with a "cashless" exercise, and/or with respect to any
Participant who is subject to Rule 16b-3 at the time withholding is required
with respect to an Award payable in Common Stock, withholding from such Award,
if an irrevocable election has been made by the Participant at least six months
in advance, a number of shares of Common Stock having an aggregate Market Value
per Share equal to the amount of taxes required to be withheld.
16. Parachute Tax Gross-Up. To the extent that the acceleration of
vesting or any payment, distribution or issuance made to a Participant under the
Plan (a "Benefit") is subject to a golden parachute excise tax under Section
4999(a) of the Code (a "Parachute Tax"), the Company
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shall pay such Participant an amount of cash (the "Gross-up Amount") such that
the "net" Benefit received by the Participant under this Plan, after paying all
applicable Parachute Taxes (including those on the Gross-up Amount) and any
federal or state income taxes on the Gross-up Amount, shall be equal to the
Benefit that such Participant would have received if such Parachute Tax had not
been applicable.
17. Administration of the Plan. (a) This Plan will be administered by the
Committee, which at all times will consist entirely of not less than two
directors appointed by the Board, each of whom will be a "Non-Employee Director"
within the meaning Rule 16b-3(b)(3)(i) and an "outside director" within the
meaning of Section 162(m) of the Code. A majority of the Committee will
constitute a quorum, and the action of the members the Committee present at any
meeting at which a quorum is present, or acts unanimously approved writing, will
be the acts of the Committee. Notwithstanding any provision of this Plan to the
contrary, the Board of Directors may itself take all actions of the Committee
under this Plan, including without limitation the grant of any Award under the
Plan, in lieu of any action by the Committee.
(b) The interpretation and construction by the Committee of any provision
of this Plan or of any agreement, notification or document evidencing the grant
of an Award and any determination by the Committee pursuant to any provision of
this Plan or of any such agreement, notification or documentation will be final
and conclusive. No member of the Committee will be liable for any such action
or determination made in good faith or in the absence of gross negligence or
willful misconduct on the part of such member.
18. Amendments, Etc. (a) This Plan may be amended from time to time by
the Board.
(b) The Committee may, in its sole discretion, take any action it deems to
be equitable under the circumstances or in the best interests of the Company
with respect to any Award, unless such Award is intended to qualify as
"performance based" compensation under Section 162(m) of the Code and such
action would cause the Award to fail to so qualify.
(c) This Plan will not confer upon any Participant any right with respect
to continuance of employment or other service with the Company or any
Subsidiary, nor will it interfere in any way with any right the Company or any
Subsidiary would otherwise have to terminate such Participant's employment or
other service at any time.
19. No Rights as Stockholder. No optionee shall have any rights as a
stockholder with respect to shares covered by an Option Right until the date of
issuance of a stock certificate or certificates for such shares of Common Stock.
20. Investment Representation. Unless the Company has filed a Registration
Statement with the Securities and Exchange Commission for the shares issuable in
connection with an Award, each agreement evidencing an Award shall contain an
agreement that, upon demand by the Board for such a representation, the optionee
(or any person acting under paragraph 9(i)) shall deliver to the Company at the
time of any exercise of an option a written
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representation that the shares to be acquired upon such exercise are to be
acquired for investment and not for resale or with a view to the distribution
thereof or such other representation as the Board deems advisable. Upon such
demand, delivery of such representation, prior to the delivery of any shares
issued upon exercise of an Option Right and prior to the expiration of the
option period, shall be a condition precedent to the right of the optionee or
such other person to purchase any shares.
21. Compliance with Other Laws and Regulations. The Plan, the grant and
exercise of Option Rights thereunder, and the obligation of the Company to
sell and deliver shares under such Option Rights, shall be subject to all
applicable federal and state laws, rules and regulations and to such approvals
by any governmental or regulatory agency or national securities exchange as may
be required. The Company shall not be required to issue or deliver any
certificates for shares of Common Stock prior to the completion of any
registration or qualification of such shares under any federal or state law, or
any ruling or regulation of any government body or national securities exchange
which the Company shall, in its sole discretion, determine to be necessary or
advisable.
22. Term. This Plan as initially adopted shall be effective as of January
4, 1996, subject to approval by the Company's stockholders; provided, however,
no Award shall be exercisable or payable prior to the date of such stockholders'
approval. The Plan was amended on March 3, 1997, which amendments to Section
3 hereof shall be subject to stockholder approval; provided, however, that no
Awards granted that would cause the original number of shares of Common Stock
subject to the Plan under Section 3 hereof to be exceeded shall be exercisable
or payable prior to the date of such stockholder approval. In the event that
this Plan is not approved by the stockholders of the Company within twelve
months after the date of its adoption by the Board, this Plan and all Awards
made under this Plan shall be automatically null and void. Unless sooner
terminated, this Plan shall terminate on December 31, 2005, and no further
Awards shall be made, but all outstanding Awards on such date shall remain
effective in accordance with their terms and the terms of this Plan.
ADOPTED by the Board of Directors of Zydeco Energy, Inc., a Delaware
corporation, subject to stockholder approval, this 4th day of January, 1996.
/s/ Sam B. Myers, Jr.
-------------------------------
Sam B. Myers, Jr.
Chairman of the Board
AS AMENDED by the Board of Directors of Zydeco Energy, Inc., a
Delaware corporation, and, with respect to the amendments to Section 3 hereof,
subject to stockholder approval, this 3rd day of March, 1997.
/s/ Sam B. Myers, Jr.
-------------------------------
Sam B. Myers, Jr.
Chairman of the Board
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