As filed with the Securities and Exchange Commission on February 5, 1999
Registration No. 333-29537
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CALLON PETROLEUM COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 64-0844345
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
200 NORTH CANAL STREET, NATCHEZ, MISSISSIPPI 39120
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CALLON PETROLEUM COMPANY
1996 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
FRED L. CALLON
200 NORTH CANAL STREET
NATCHEZ, MISSISSIPPI 39120
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(601) 442-1601
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
BUTLER & BINION, L.L.P.
1000 Louisiana, Suite 1600
Houston, Texas 77002
Attn: George G. Young III
(713) 237-3111
Calculation of Registration Fee
<TABLE>
<CAPTION>
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AMOUNT TO PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES BE MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PRICE PER SHARE(2)(3) PRICE(2) FEE(2)(3)
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<S> <C> <C> <C> <C> <C>
Common Stock(1) 300,000 $ 10.65625 $ 3,196,875.00 $ 888.73
shares
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</TABLE>
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(1) Pursuant to Rule 416(a), this registration statement also registers such
indeterminate number of additional shares as may become issuable under the
anti-dilution provisions of the 1996 Stock Incentive Plan in connection with
stock splits, stock dividends and similar transactions.
(2) Computed pursuant to Rule 457(h) of the Securities Act of 1933, as amended
("Securities Act") based on the average of the high and low sales prices on
February 4, 1999 as reported by the New York Stock Exchange of $10.65625 per
share.
(3) Calculated pursuant to Rule 457(c) of the Securities Act.
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<PAGE>
This registration statement is being filed for the purpose of registering
in accordance with Instruction E of Form S-8 an additional 300,000 shares of
common stock, par value $.01, to be issued pursuant to the 1996 Stock Incentive
Plan of Callon Petroleum Company (the "Company"). The contents of the Company's
registration statement on Form S-8, filed on June 19, 1997, (Registration No.
333-29537) are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS
EXHIBIT NUMBER
AND DESCRIPTION
(4) Instruments defining the rights of security holders, including
indentures
4.1 Certificate of Incorporation of the Company, as amended
(incorporated by reference from Exhibit 3.1 of the Company's
Registration Statement on Form S-4, Reg. No. 33-82408)
4.2 Bylaws of the Company (incorporated by reference from Exhibit
3.2 of the Company's Registration Statement on Form S-4, Reg.
No. 33-82408)
4.3 Specimen Stock Certificate (incorporated by reference from
Exhibit 4.1 of the Company's Registration Statement on Form
S-4, File No. 33-82408)
4.4 The Company's amended 1996 Stock Incentive Plan
(5) Opinion re legality
5.1 Opinion of Butler & Binion, L.L.P.
(23) Consents of experts and counsel
23.1 Consent of Butler & Binion, L.L.P. (included in its opinion
filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
(24) Power of attorney*
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* Previously filed.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Natchez, State of Mississippi, on February 4, 1999.
CALLON PETROLEUM COMPANY
By: /s/ FRED L. CALLON
Fred L. Callon, President and Chief
Executive Officer
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<PAGE>
Pursuant to the requirement 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>
/s/ John S. Callon* Chairman of the Board of Directors February 4, 1999
John S. Callon
/s/ Fred L. Callon Chief Executive Officer, President February 4, 1999
Fred L. Callon and Director (PRINCIPAL EXECUTIVE
OFFICER)
/s/ John S. Weatherly* Senior Vice President, Chief Financial February 4, 1999
John S. Weatherly Officer and Treasurer (PRINCIPAL
FINANCIAL AND ACCOUNTING OFFICER)
/s/ Dennis W. Christian* Senior Vice President, Chief Operating February 4, 1999
Dennis W. Christian Officer and Director
/s/ B. F. Weatherly* Director February 4, 1999
B. F. Weatherly
/s/ Robert A. Stanger* Director February 4, 1999
Robert A. Stanger
/s/ John C. Wallace* Director February 4, 1999
John C. Wallace
/s/ Richard O. Wilson* Director February 4, 1999
Richard O. Wilson
</TABLE>
* By Fred L. Callon, attorney-in-fact
/s/ FRED L. CALLON
Fred L. Callon, attorney-in-fact
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EXHIBIT 4.4
CALLON PETROLEUM COMPANY
AMENDED AND RESTATED
1996 STOCK INCENTIVE PLAN
August 23, 1996
and as Amended
August 20, 1998
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I. GENERAL..........................................................1
Section 1.1. Purpose..................................................1
Section 1.2. Administration...........................................1
Section 1.3. Eligibility for Participation............................1
Section 1.4. Types of Awards Under Plan...............................2
Section 1.5. Aggregate Limitation on Awards...........................2
Section 1.6. Effective Date and Term of Plan..........................2
ARTICLE II. STOCK OPTIONS...................................................2
Section 2.1. Award of Stock Options...................................2
Section 2.2. Stock Option Agreements..................................3
Section 2.3. Stock Option Price.......................................3
Section 2.4. Term and Exercise........................................3
Section 2.5. Manner of Payment........................................3
Section 2.6. Issuance of Certificates.................................3
Section 2.7. Death, Retirement and Termination of Employment of
Optionee...............................................3
ARTICLE III. INCENTIVE STOCK OPTIONS........................................3
Section 3.1. Award of Incentive Stock Options.........................4
Section 3.2. Incentive Stock Option Agreements........................4
Section 3.3. Incentive Stock Option Price.............................4
Section 3.4. Term and Exercise........................................4
Section 3.5. Maximum Amount of Incentive Stock Option Grant...........4
Section 3.6. Death of Optionee........................................4
Section 3.7. Retirement or Disability.................................4
Section 3.8. Termination for Other Reasons............................5
Section 3.9. Termination for Cause....................................5
Section 3.10. Code Requirements........................................5
ARTICLE IV. PERFORMANCE SHARE AWARDS........................................5
Section 4.1. Awards Granted by Plan Administrator.....................5
Section 4.2. Amount of Award..........................................5
Section 4.3. Communication of Award...................................5
Section 4.4. Amount of Award Payable..................................5
Section 4.5. Payments of Awards.......................................6
Section 4.6. Termination of Employment................................6
Section 4.7. Transfer Restriction.....................................6
ARTICLE V. AUTOMATIC GRANTS.................................................6
Section 5.1. Grant....................................................6
Section 5.2. Applicable Provisions....................................6
ARTICLE VI. MISCELLANEOUS...................................................6
Section 6.1. General Restriction......................................6
Section 6.2. Non-Assignability........................................6
Section 6.3. Withholding Taxes........................................6
Section 6.4. Right to Terminate Employment............................7
Section 6.5. Non-Uniform Determinations...............................7
Section 6.6. Rights as a Stockholder..................................7
Section 6.7. Definitions..............................................7
Section 6.8. Leaves of Absence........................................7
Section 6.9. Newly Eligible Employees.................................8
Section 6.10. Adjustments.............................................8
Section 6.11. Changes in the Company's Capital Structure..............8
Section 6.12. Amendment of the Plan...................................9
Section 6.13. No Loss of Rights of Grantee of an Award................9
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<PAGE>
CALLON PETROLEUM COMPANY
1996 STOCK INCENTIVE PLAN
ARTICLE I. GENERAL
Section 1.1. Purpose. The purposes of this Stock Incentive Plan (the
"Plan") are to: (1) associate the interests of the management of CALLON
PETROLEUM COMPANY and its subsidiaries and affiliates (collectively referred to
as the "Company") closely with the stockholders to generate an increased
incentive to contribute to the Company's future success and prosperity, thus
enhancing the value of the Company for the benefit of its stockholders; (2)
provide management with a proprietary ownership interest in the Company
commensurate with Company performance, as reflected in increased stockholder
value; (3) maintain competitive compensation levels thereby attracting and
retaining highly competent and talented directors, employees and consultants;
and (4) provide an incentive to management for continuous employment with the
Company. Certain capitalized terms are defined in Section 6.7.
Section 1.2. Administration.
(a) The Plan shall be administered by (i) the Board of Directors of
the Company, (ii) any duly constituted committee of the Board of Directors
consisting of at least two members of the Board of Directors, all of whom
shall be Non-Employee Directors, or (iii) any other duly constituted
committee of the Board of Directors. Such administrating party shall be
referred to herein as the "Plan Administrator".
(b) The Plan Administrator shall have the authority, in its sole
discretion and from time to time to:
(i) designate the officers, key employees and consultants of
the Company and its Subsidiaries eligible to participate in the
Plan;
(ii) grant Awards provided in the Plan in such form and
amount as the Plan Administrator shall determine;
(iii) impose such limitations, restrictions and conditions,
not inconsistent with this Plan, upon any such Award as the Plan
Administrator shall deem appropriate; and
(iv) interpret the Plan and any agreement, instrument or
other document executed in connection with the Plan, adopt, amend
and rescind rules and regulations relating to the Plan, and make all
other determinations and take all other action necessary or
advisable for the implementation and administration of the Plan.
(c) Decisions and determinations of the Plan Administrator on all
matters relating to the Plan shall be in its sole discretion and shall be
final, conclusive and binding upon all persons, including the Company, any
participant, any stockholder of the Company, any employee and any
consultant. No member of any committee acting as Plan Administrator shall
be liable for any action taken or decision made relating to the Plan or
any Award thereunder.
Section 1.3. Eligibility for Participation. Participants in the Plan shall
be selected by the Plan Administrator from the directors, executive officers and
other key employees and consultants of the Company and executive officers and
key employees and consultants of any Subsidiary of the Company who have the
capability of making a substantial contribution to the success of the Company.
In making this selection and in determining the form and amount of awards, the
Plan Administrator shall consider any factors deemed relevant, including the
individual's functions, responsibilities, value of services to the Company and
past and potential contributions to the Company's profitability and growth. For
the purposes of this Plan, the term "Subsidiary" means any corporation or other
entity of which at least 50% of the voting securities are owned by the Company
directly or through one or more other corporations, each of which is also a
Subsidiary. With respect to non-corporate entities, Subsidiary shall mean an
entity managed or controlled by the Company or any Subsidiary and with respect
to which the Company or any Subsidiary is allocated more than half of the
profits and losses thereof.
<PAGE>
Section 1.4. Types of Awards Under Plan. Awards under the Plan may be in
the form of any or more of the following:
(i) Stock Options, as described in Article II;
(ii) Incentive Stock Options, as described in Article III; and/or
(iii) Performance Shares, as described in Article IV.
Awards under the Plan shall be evidenced by an Award Agreement between the
Company and the recipient of the Award, in form and substance satisfactory to
the Plan Administrator, and not inconsistent with this Plan. Award Agreements
may provide such vesting schedules for Stock Options, Incentive Stock Options
and Performance Shares, and such other terms, conditions and provisions as are
not inconsistent with the terms of this Plan. Subject to the express provisions
of the Plan, and within the limitations of the Plan, the Plan Administrator may
modify, extend or renew outstanding Award Agreements, or accept the surrender of
outstanding Awards and authorize the granting of new Awards in substitution
therefor. However, except as provided in Sections 6.1(i), 6.1(ii) and 6.11(d)(3)
of this Plan, no modification of an Award shall impair the rights of the holder
thereof without his consent.
Section 1.5. Aggregate Limitation on Awards.
(a) Shares of stock which may be issued under the Plan shall be
authorized and unissued or treasury shares of Common Stock of the Company
("Common Stock"). The maximum number of shares of Common Stock which may
be issued pursuant to Awards issued under the Plan shall be 1,200,000,
which may be increased by the Board of Directors pursuant to Section 6.12.
(b) For purposes of calculating the maximum number of shares of
Common Stock which may be issued under the Plan at any time:
(i) all the shares issued (including the shares, if any,
withheld for tax withholding requirements) under the Plan shall be
counted when issued upon exercise of a Stock Option or Incentive
Stock Option; and
only the net shares issued as Performance Shares shall be
counted (shares reacquired by the Company because of failure to
achieve a performance target or failure to become fully vested for
any other reason shall again be available for issuance under the
Plan).
(c) Shares tendered by a participant as payment for shares issued
upon exercise of a Stock Option or Incentive Stock Option shall be
available for issuance under the Plan. Any shares of Common Stock subject
to a Stock Option or Incentive Stock Option which for any reason is
terminated unexercised or expires shall again be available for issuance
under the Plan.
Section 1.6. Effective Date and Term of Plan.
(a) The Plan shall become effective on the date adopted by the Board
of Directors, subject to approval by the holders of a majority of the
shares of Common Stock at a meeting or by written consent.
(b) The Plan and all Awards made under the Plan shall remain in
effect until such Awards have been satisfied or terminated in accordance
with the Plan and the terms of such Awards.
ARTICLE II. STOCK OPTIONS
Section 2.1. Award of Stock Options. The Plan Administrator may from time
to time, and subject to the provisions of the Plan and such other terms and
conditions as the Plan Administrator may prescribe, grant to any participant in
the Plan one or more options to purchase for cash or shares the number of shares
of Common Stock ("Stock Options") allotted by the Plan Administrator. The date a
Stock Option is granted shall mean the date selected by the Plan Administrator
as of which the Plan Administrator allots a specific number of shares to a
participant pursuant to the Plan.
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<PAGE>
Section 2.2. Stock Option Agreements. The grant of a Stock Option shall be
evidenced by a written Award Agreement, executed by the Company and the holder
of a Stock Option (the "Optionee"), stating the number of shares of Common Stock
subject to the Stock Option evidenced thereby, and in such form as the Plan
Administrator may from time to time determine.
Section 2.3. Stock Option Price. The option price per share of Common
Stock deliverable upon the exercise of a Stock Option shall be 100% of the fair
market value of a share of Common Stock on the date the Stock Option is granted
unless otherwise determined by the Plan Administrator.
Section 2.4. Term and Exercise. A Stock Option shall not be exercisable
prior to six months from the date of its grant, unless a shorter period is
provided by the Plan Administrator or by another Section of this Plan, and may
be subject to such vesting scheduling and term ("Option Term") as the Plan
Administrator may provide in an Award Agreement. No Stock Option shall be
exercisable after the expiration of its Option Term.
Section 2.5. Manner of Payment. Each Award Agreement providing for Stock
Options shall set forth the procedure governing the exercise of the Stock Option
granted thereunder, and shall provide that, upon such exercise in respect of any
shares of Common Stock subject thereto, the Optionee shall pay to the Company,
in full, the option price for such shares with cash or, if duly authorized by
the Plan Administrator, Common Stock.
Section 2.6. Issuance of Certificates. As soon as practicable after
receipt of payment, the Company shall deliver to the Optionee a certificate or
certificates for such shares of Common Stock. The Optionee shall become a
stockholder of the Company with respect to Common Stock represented by share
certificates so issued and as such shall be fully entitled to receive dividends,
to vote and to exercise all other rights of a stockholder.
Section 2.7. Death, Retirement and Termination of Employment of Optionee.
Unless otherwise provided in an Award Agreement or otherwise agreed to by the
Plan Administrator:
(a) Upon the death of the Optionee, any rights to the extent
exercisable on the date of death may be exercised by the Optionee's
estate, or by a person who acquires the right to exercise such Stock
Option by bequest or inheritance or by reason of the death of the
Optionee, provided that such exercise occurs within both (i) the remaining
Option Term of the Stock Option and (ii) one year. The provisions of this
Section shall apply notwithstanding the fact that the Optionee's
employment may have terminated prior to death, but only to the extent of
any rights exercisable on the date of death.
(b) Upon termination of the Optionee's employment by reason of
retirement or permanent disability (as each is determined by the Plan
Administrator), the Optionee may exercise any Stock Options, provided such
option exercise occurs within both (i) the remaining Option Term of the
Stock Option and (ii) six months (in the case of permanent disability) or
three months (in the case of retirement).
(c) Upon termination of the Optionee's employment by reason other
than death, retirement, disability or cause (as each is determined by the
Plan Administrator), the Optionee may exercise any Stock Options, provided
such option exercise occurs within both (i) the remaining Option Term of
the Stock Option and (ii) 30 days of the date of termination.
(d) Except as provided in Subsections (a), (b) and (c) of this
Section 2.7, all Stock Options shall terminate immediately upon the
termination of the Optionee's employment.
ARTICLE III. INCENTIVE STOCK OPTIONS
Section 3.1. Award of Incentive Stock Options. The Plan Administrator may,
from time to time and subject to the provisions of the Plan and such other terms
and conditions as the Plan Administrator may prescribe, grant to any officer or
key employee who is a participant in the Plan one or more "incentive stock
options" (intended to qualify as such under the provisions of Section 422 of the
Internal Revenue Code of 1986, as amended ("Incentive Stock Options")) to
purchase for cash or shares the number of shares of Common Stock allotted by the
Plan Administrator. No Incentive Stock Options shall be made under the Plan
after the tenth anniversary of the effective date of the Plan. The date an
Incentive Stock Option is granted
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<PAGE>
shall mean the date selected by the Plan Administrator as of which the Plan
Administrator allots a specific number of shares to a participant pursuant to
the Plan. Notwithstanding the foregoing, Incentive Stock Options shall not be
granted to any owner of 10% or more of the total combined voting power of the
Company and its subsidiaries.
Section 3.2. Incentive Stock Option Agreements. The grant of an Incentive
Stock Option shall be evidenced by a written Award Agreement, executed by the
Company and the holder of an Incentive Stock Option (the "Optionee"), stating
the number of shares of Common Stock subject to the Incentive Stock Option
evidenced thereby, and in such form as the Plan Administrator may from time to
time determine.
Section 3.3. Incentive Stock Option Price. The option price per share of
Common Stock deliverable upon the exercise of an Incentive Stock Option shall be
100% of the fair market value of a share of Common Stock on the date the
Incentive Stock Option is granted.
Section 3.4. Term and Exercise. Each Incentive Stock Option shall not be
exercisable prior to six months from the date of its grant and unless a shorter
period is provided by the Plan Administrator or another Section of this Plan,
may be exercised during a period of ten years from the date of grant thereof
(the "Option Term") and may be subject to such vesting scheduling as the Plan
Administrator may provide in an Award Agreement. No Incentive Stock Option shall
be exercisable after the expiration of its Option Term.
Section 3.5. Maximum Amount of Incentive Stock Option Grant. The aggregate
fair market value (determined on the date the Incentive Stock Option is granted)
of Common Stock with respect to which Incentive Stock Options first become
exercisable by an Optionee during in any calendar year (under all plans of the
Optionee's employer corporations and their parent and subsidiary corporations)
shall not exceed $100,000.
Section 3.6. Death of Optionee.
(a) Upon the death of the Optionee, any Incentive Stock Option
exercisable on the date of death may be exercised by the Optionee's estate
or by a person who acquires the right to exercise such Incentive Stock
Option by bequest or inheritance or by reason of the death of the
Optionee, provided that such exercise occurs within both the remaining
Option Term of the Incentive Stock Option and one year after the
Optionee's death.
(b) The provisions of this Section shall apply notwithstanding the
fact that the Optionee's employment may have terminated prior to death,
but only to the extent of any Incentive Stock Options exercisable on the
date of death.
Section 3.7. Retirement or Disability. Unless otherwise provided in an
Award Agreement or otherwise agreed to by the Plan Administrator, upon the
termination of the Optionee's employment by reason of permanent disability or
retirement (as each is determined by the Plan Administrator), the Optionee may
exercise any Incentive Stock Options, provided such option exercise occurs
within both (i) the remaining Option Term of the Incentive Stock Option and (ii)
one year (in the case of permanent disability) or three months (in the case of
retirement). Notwithstanding the terms of an Award Agreement, the tax treatment
available pursuant to Section 422 of the Internal Revenue Code of 1986 (the
"Code") upon the exercise of an Incentive Stock Option shall not be available to
an Optionee who exercises any Incentive Stock Options more than (i) one year
after the date of termination of employment due to permanent disability or (ii)
three months after the date of termination of employment due to retirement.
Section 3.8. Termination for Other Reasons. Unless otherwise provided in
an Award Agreement or otherwise agreed to by the Plan Administrator, except as
provided in Sections 3.6 and 3.7, upon termination of the Optionee's employment
by reason other than cause (as determined by the Plan Administrator), the
Optionee may exercise any Incentive Stock Options, provided such option exercise
occurs within both (i) the remaining Incentive Option Term of the Stock Option
and (ii) 30 days of the date of termination.
Section 3.9. Termination for Cause. Unless otherwise provided in an Award
Agreement or otherwise agreed to by the Plan Administrator, except as provided
in Sections 3.6, 3.7 and 3.8, all Incentive Stock Options shall terminate
immediately upon the termination of the Optionee's employment.
Section 3.10. Code Requirements. The terms of any Incentive Stock Option
granted under the Plan shall comply in all respects with the provisions of Code
Section 422. Anything in the Plan to the contrary
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<PAGE>
notwithstanding, no term of the Plan relating to Incentive Stock Options shall
be interpreted, amended or altered, nor shall any discretion or authority
granted under the Plan be exercised, so as to disqualify either the Plan or any
Incentive Stock Option under Code Section 422, unless the participant has first
requested the change that will result in such disqualification.
ARTICLE IV. PERFORMANCE SHARE AWARDS
Section 4.1. Awards Granted by Plan Administrator. Coincident with or
following designation for participation in the Plan, a participant may be
granted Performance Shares. Certificates representing Performance Shares shall
be issued to the participant effective as of the date of the Award. Holders of
Performance Shares shall have all of the voting, dividend and other rights of
stockholders of the Company, subject to the terms of any Award Agreement.
Section 4.2. Amount of Award. The Plan Administrator shall establish a
maximum amount of a participant's Award, which amount shall be denominated in
shares of Common Stock.
Section 4.3. Communication of Award. Written notice of the maximum amount
of a participant's Award and the Performance Cycle determined by the Plan
Administrator, if any, shall be given to a participant as soon as practicable
after approval of the Award by the Plan Administrator. The grant of Performance
Shares shall be evidenced by a written Award Agreement, executed by the Company
and the recipient of Performance Shares, in such form as the Plan Administrator
may from time to time determine, providing for the terms of such grant.
Section 4.4. Amount of Award Payable. Performance Shares may be granted
based upon past performance or future performance. In addition to any other
restrictions the Plan Administrator may place on Performance Shares, the Plan
Administrator may, in its discretion, provide that Performance Shares shall vest
upon the satisfaction of performance targets to be achieved during an applicable
"Performance Cycle." Failure to satisfy the performance targets may result, in
the Plan Administrator's discretion as set forth in an Award Agreement, in the
forfeiture of the Performance Shares by the participant and the return of such
shares to the Company, or have any other consequence as determined by the Plan
Administrator. Performance targets established by the Plan Administrator may
relate to corporate, group, unit or individual performance and may be
established in terms of market price of common stock, cash flow or cash flow per
share, reserve value or reserve value per share, net asset value or net asset
value per share, earnings, or such other measures or standards determined by the
Plan Administrator. Multiple performance targets may be used and the components
of multiple performance targets may be given the same or different weight in
determining the amount of an Award earned, and may relate to absolute
performance or relative performance measured against other groups, units,
individuals or entities. The Plan Administrator may also establish that none, a
portion or all of a participant's Award will vest (subject to Section 4.5) for
performance which falls below the performance target applicable to such Award.
Certificates representing Performance Shares shall bear a legend restricting
their transfer and requiring the forfeiture of the shares to the Company if any
performance targets or other conditions to vesting are not met. The Plan
Administrator may also require a participant to deliver certificates
representing unvested Performance Shares to the Company in escrow until the
Performance Shares vest.
Section 4.5. Payments of Awards. Following the conclusion of each
Performance Cycle, the Plan Administrator shall determine the extent to which
performance targets have been attained, and the satisfaction of any other terms
and conditions with respect to vesting an Award relating to such Performance
Cycle. Subject to the provisions of Section 6.3, to the extent the Plan
Administrator determines Performance Shares have vested, the Company shall issue
to the participant certificates representing vested shares free of any legend
regarding performance targets or forfeiture in exchange for such participant's
legended certificates.
Section 4.6. Termination of Employment. Unless the Award Agreement
provides for vesting upon death, disability, retirement or termination of
employment, upon any such termination of employment of a participant prior to
vesting of Performance Shares, all outstanding and unvested Awards of
Performance Shares to such participant shall be canceled, shall not vest and
shall be returned to the Company.
Section 4.7. Transfer Restriction. Unless otherwise provided in an Award
Agreement or otherwise agreed to by the Plan Administrator, any Award Agreement
providing for the issuance of Performance Shares to any person who, at the time
of grant, is subject to the restrictions of Section 16(b) of the Exchange Act,
shall provide that such Common Stock cannot be resold for a period of six months
following the grant of such Performance Shares.
-5-
<PAGE>
ARTICLE V. AUTOMATIC GRANTS
Section 5.1. Grant. Each director who is not an employee of the Company,
its subsidiaries, affiliates and managers shall on the date on which he or she
is initially elected or appointed a director of the Company, be granted a Stock
Option to purchase 5,000 shares of Common Stock for the fair market price on the
date of such grant, for an Option Term of ten years. Thereafter, on the first
business day following the Annual Meeting of Stockholders of each subsequent
year in which such person is still serving as a director (whether or not such
director's term has been continuous), he or she shall automatically be granted a
Stock Option to purchase an additional 5,000 shares of Common Stock for the fair
market price on the date of such grant for an Option Term of ten years.
Section 5.2. Applicable Provisions. The provisions of Section 2.7(a)
relating to the death of a director shall apply to options granted under Section
5.1 and the Plan Administrator may not agree to the contrary in an Award
Agreement or otherwise. The provisions of Subsections 2.7(b), (c) and (d)
relating to disability and other termination of employment shall not apply to
options granted under Section 5.1, and the failure to be re-elected as a
director of the Company shall not effect the Stock Options granted under this
Section.
ARTICLE VI. MISCELLANEOUS
Section 6.1. General Restriction. Each Award under the Plan shall be
subject to the requirement that, if at any time the Plan Administrator shall
determine that (i) the listing, registration or qualification of the shares of
Common Stock which is the subject of such Award is necessary under the rules and
regulations of any securities exchange or under any state or Federal law, or
(ii) the consent or approval of any government regulatory body is necessary as a
condition of, or in connection with, the granting of such Award or the issue or
purchase of shares of Common Stock thereunder, such Award may not be consummated
in whole or in part unless such listing, registration, qualification, consent,
approval or agreement shall have been effected or obtained.
Section 6.2. Non-Assignability. No Award under the Plan shall be
assignable or transferable by the recipient thereof, except by will or by the
laws of descent and distribution. During the life of the recipient, such Award
shall be exercisable only by such person or by such person's guardian or legal
representative.
Section 6.3. Withholding Taxes. Whenever the Company proposes or is
required to issue or transfer shares of Common Stock under the Plan, the Company
shall have the right to require the grantee to remit to the Company an amount
sufficient to satisfy any Federal, state and/or local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares. Alternatively, the Company may issue, transfer or vest only such number
of shares of the Company net of the number of shares sufficient to satisfy the
withholding tax requirements. For withholding tax purposes, the shares of Common
Stock shall be valued on the date the withholding obligation is incurred.
Section 6.4. Right to Terminate Employment. Nothing in the Plan or in any
agreement entered into pursuant to the Plan shall confer upon any participant
the right to continue in the employment of the Company or affect any right which
the Company may have to terminate the employment of such participant.
Section 6.5. Non-Uniform Determinations. The Plan Administrator's
determinations under the Plan (including without limitation determinations of
the persons to receive Awards, the form, amount and timing of such Awards, the
terms and provisions of such Awards and the agreements evidencing same) need not
be uniform and may be made by it selectively among persons who receive, or are
eligible to receive, Awards under the Plan, whether or not such persons are
similarly situated.
Section 6.6. Rights as a Stockholder. The recipient of any Award under the
Plan shall have no rights as a stockholder with respect thereto unless and until
certificates for shares of Common Stock are issued to him.
Section 6.7. Definitions. In this Plan the following
definitions shall apply:
(a) "Award" shall mean a grant of Stock Options, Incentive Stock
Options or Performance Shares under the Plan.
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<PAGE>
(b) "Fair market value" as of any date and in respect of any share
of Common Stock means the average of the high and low sales price on such
date or on the next business day, if such date is not a business day, of a
share of Common Stock reflected in the consolidated trading tables of The
Wall Street Journal provided that, if shares of Common Stock shall not
have been traded on the National Association of Securities Dealers, Inc.
Automated Quotation System/National Market System or other public
securities market for more than 10 days immediately preceding such date,
the fair market value of shares of Common Stock shall be as determined by
the Plan Administrator in such other manner as it may deem appropriate. In
no event shall the fair market value of any share of Common Stock be less
than its par value.
(c) "Non-Employee Director" shall mean a director who (i) is not an
officer of the Company or a parent or subsidiary of the Company, or
otherwise employed by the Company or parent or subsidiary of the Company;
(ii) does not receive compensation, either directly or indirectly, from
the Company or a parent or subsidiary of the Company, for services
rendered as a consultant or in any capacity other than as a director,
except for an amount not exceeding $60,000; (iii) does not possess an
interest in any transaction for which disclosure would be required under
Item 404(a) of Regulation S-K of the Securities Act of 1933, as amended
("Securities Act"); or (iv) is not engaged in a business relationship for
which disclosure would be required pursuant to Item 404(b) of Regulation
S-K of the Securities Act.
(d) "Option" means a Stock Option or Incentive Stock Option.
(e) "Option price" means the purchase price per share of Common
Stock deliverable upon the exercise of a Stock Option or Incentive Stock
Option.
(f) "Performance Cycle" means the period of time, if any, as
specified by the Plan Administrator over which Performance Shares are to
be vested.
Section 6.8. Leaves of Absence. The Plan Administrator shall be entitled
to make such rules, regulations and determinations as it deems appropriate under
the Plan in respect of any leave of absence taken by the recipient of any Award.
Without limiting the generality of the foregoing, the Plan Administrator shall
be entitled to determine (i) whether or not any such leave of absence shall
constitute a termination of employment within the meaning of the Plan and (ii)
the impact, if any, of any such leave of absence on Awards under the Plan
theretofore made to any recipient who takes such leave of absence.
Section 6.9. Newly Eligible Employees. The Plan Administrator shall be
entitled to make such rules, regulations, determinations and Awards as it deems
appropriate in respect of any employee who becomes eligible to participate in
the Plan or any portion thereof after the commencement of an Award or incentive
period.
Section 6.10. Adjustments. In the event of any change in the outstanding
Common Stock by reason of a stock dividend or distribution, recapitalization,
merger, consolidation, split-up, combination, exchange of shares or the like,
the Plan Administrator may appropriately adjust the number of shares of Common
Stock which may be issued under the Plan, the number of shares of Common Stock
subject to Options or Performance Shares theretofore granted under the Plan, and
any and all other matters deemed appropriate by the Plan Administrator.
Section 6.11. Changes in the Company's Capital Structure.
(a) The existence of outstanding Options or Performance Shares shall
not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
(b) If, while there are outstanding Options, the Company shall
effect a subdivision or consolidation of shares or other increase or
reduction in the number of shares of the Common Stock outstanding without
receiving compensation therefor in money, services or property, then,
subject to the provisions, if any, in the Award Agreement (a) in the event
of an increase in the number of such
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<PAGE>
shares outstanding, the number of shares of Common Stock then subject to
Options hereunder shall be proportionately increased; and (b) in the event
of a decrease in the number of such shares outstanding the number of
shares then available for Option hereunder shall be proportionately
decreased.
(c) After a merger of one or more corporations into the Company, or
after a consolidation of the Company and one or more corporations in which
the Company shall be the surviving corporation, (i) each holder of an
outstanding Option shall, at no additional cost, be entitled upon exercise
of such Option to receive (subject to any required action by stockholders)
in lieu of the number of shares as to which such Option shall then be so
exercisable, the number and class of shares of stock, other securities or
consideration to which such holder would have been entitled to receive
pursuant to the terms of the agreement of merger or consolidation if,
immediately prior to such merger or consolidation, such holder had been
the holder of record of a number of shares of the Company equal to the
number of shares as to which such Option had been exercisable and (ii)
unless otherwise provided by the Plan Administrator, the number of shares
of Common Stock, other securities or consideration to be received with
respect to unvested Performance Shares shall continue to be subject to the
Award Agreement, including any vesting provisions thereof.
(d) If the Company is about to be merged into or consolidated with
another corporation or other entity under circumstances where the Company
is not the surviving corporation, or if the Company is about to sell or
otherwise dispose of substantially all of its assets to another
corporation or other entity while unvested Performance Shares or
unexercised Options remain outstanding, then the Plan Administrator may
direct that any of the following shall occur:
(i) If the successor entity is willing to assume the
obligation to deliver shares of stock or other securities after the
effective date of the merger, consolidation or sale of assets, as
the case may be, each holder of an outstanding Option shall be
entitled to receive, upon the exercise of such Option and payment of
the option price, in lieu of shares of Common Stock, such shares of
stock or other securities as the holder of such Option would have
been entitled to receive had such Option been exercised immediately
prior to the consummation of such merger, consolidation or sale, and
the terms of such Option shall apply as nearly as practicable to the
shares of stock or other securities purchasable upon exercise of the
Option following such merger, consolidation or sale of assets;
(ii) The Plan Administrator may waive any limitations set
forth in or imposed pursuant to this Plan or any Award Agreement
with respect to such Option or Performance Share such that (A) such
Option shall become exercisable prior to the record or effective
date of such merger, consolidation or sale of assets or (B) the
vesting of such Performance Share shall occur upon such merger,
consolidation or sale of assets; and/or
(iii) The Plan Administrator may cancel all outstanding Options
as of the effective date of any such merger, consolidation or sale
of assets provided that prior notice of such cancellation shall be
given to each holder of an Option at least 30 days prior to the
effective date of such merger, consolidation or sale of assets, and
each holder of an Option shall have the right to exercise such
Option in full during a period of not less than 30 days prior to the
effective date of such merger, consolidation or sale of assets.
(e) Except as herein provided, the issuance by the Company of Common
Stock or any other shares of capital stock or securities convertible into
shares of capital stock, for cash, property, labor done or other
consideration, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock
then subject to outstanding Options.
Section 6.12. Amendment of the Plan. Subject to Section 3.11, the Board of
Directors may, without further approval by the stockholders and without
receiving further consideration from the participants, amend this Plan or
condition or modify Awards under this Plan, including increases to the number of
shares which may be covered by Awards under this Plan.
Section 6.13. No Loss of Rights of Grantee of an Award. Nothing in this
Plan shall give the Plan Administrator or any other person the right, power or
authority to change, amend, alter or repeal the terms of any Award granted under
this Plan, except as otherwise expressly set forth in the grant of such Award,
without the prior written consent of the grantee of such Award.
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EXHIBIT 5.1
[BUTLER & BINION, L.L.P. LETTERHEAD]
February 5, 1999
Callon Petroleum Company
200 North Canal Street
Natchez, Mississippi 39120
Re: Distribution of an additional 300,000 shares of Common Stock of
Callon Petroleum Company pursuant to the 1996 Stock Incentive Plan
Gentlemen:
We have acted as legal counsel for Callon Petroleum Company, a Delaware
corporation ("Company"), in connection with Post-Effective Amendment No. 1 to
the Registration Statement on Form S-8 ("Registration Statement") which relates
to the offering to certain of the directors, officers and employees of the
Company and its subsidiaries of an additional 300,000 shares of the Company's
common stock, $.01 par value per share ("Common Stock") issuable pursuant to an
amendment to the Company's 1996 Stock Incentive Plan ("Plan") increasing the
number of shares of Common Stock issuable pursuant to the Plan from 900,000 to
1,200,000 shares ("Plan Amendment").
We have made such inquiries and examined such documents as we have
considered necessary or appropriate for the purposes of giving the opinion
hereinafter set forth, including the examination of executed or conformed
counterparts, or copies certified or otherwise proved to our satisfaction of the
following:
(i) the Certificate of Incorporation of the Company as filed with the
Secretary of State of Delaware on March 29, 1994, as amended to
date;
(ii) the Bylaws of the Company as of the date of this opinion;
(iii) the Company's Post-Effective Amendment No. 1 to the Registration
Statement, filed with the Securities and Exchange Commission on
February 5, 1999;
(iv) the Company's Registration Statement, filed with the Securities and
Exchange Commission on June 19, 1997 (Registration No. 333-29537);
(v) the Plan;
(vi) the Plan Amendment; and
<PAGE>
Callon Petroleum Company
February 3, 1999
Page -2-
(vii) such other documents, corporate records, certificates and other
instruments as we have deemed necessary or appropriate for the
purpose of this opinion.
We have assumed the genuineness and authenticity of all signatures on all
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies and the due authorization, execution, delivery or recordation of all
documents where due authorization, execution or recordation are prerequisites to
the effectiveness thereof.
Based upon the foregoing and subject to the assumptions, exceptions and
qualifications stated herein and having regard for such legal considerations as
we deem relevant, we are of the opinion that the Common Stock covered by
Post-Effective Amendment No. 1 to the Registration Statement has been duly
authorized and when issued and delivered by the Company and paid for in
accordance with the Plan, will be validly issued, fully paid and nonassessable.
Our opinion as expressed above is limited to the General Corporation Law
of the State of Delaware. Our opinion is also rendered only with respect to the
laws and the rules, regulations and orders thereunder, which are currently in
effect. Please be advised that no member of this firm is admitted to practice in
the State of Delaware.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In giving this
consent, we do not hereby agree that we come within the category of persons
whose consent is required by the Securities Act of 1933, as amended, or the
rules promulgated thereunder.
Very truly yours,
/s/ BUTLER & BINION, L.L.P.
BUTLER & BINION, L.L.P.
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Post-Effective Amendment No. 1 to the Registration
Statement on Form S-8 of our reports dated February 20, 1998, included in Callon
Petroleum Company's Form 10-K for the year ended December 31, 1997 and to all
references to our Firm in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
New Orleans, Louisiana
February 5, 1999
