As filed with the Securities and Exchange Commission on March 17, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FORCENERGY INC
(Exact name of registrant as specified in its charter)
Delaware 65-0429338
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2730 S.W. 3rd Avenue 33129-2356
Suite 800 (Zip Code)
Miami, Florida
(Address of Principal Executive Offices)
FORCENERGY INC
1999 STOCK PLAN
(Full title of the plan)
E. Joseph Grady
Vice President, Treasurer
and Chief Financial Officer
2730 S.W. 3rd Avenue, Suite 800
Miami, Florida 33129-2356
(Name and address of agent for service)
(305) 856-8500
(Telephone number, including area code,
of agent for service)
---------------------------
Copy to:
David C. Buck
Andrews & Kurth L.L.P.
600 Travis Street, Suite 4200
Houston, Texas 77002
(713) 220-4301
(Fax) (713) 220-4285
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
============================================== ================ ================== ================ ================
Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
to be Offering Price Offering Registration
Title of Securities to be Registered registered(1) Per Share (2) Price (2) Fee
Common Stock, par value $.01 per share........ 3,000,000 $10.00 $30,000,000 $7,920
============================================== ================ ================== ================ ================
</TABLE>
(1) This registration statement also covers an indeterminate number of
additional shares that may be offered or issued pursuant to stock splits,
stock dividends or similar transactions as provided for in the employee
benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under Securities Act of 1933, as amended, based
upon the book value of the outstanding shares of Common Stock computed as
of March 15, 2000 based on assets and liabilities as of November 30, 1999,
the latest practicable date prior to the date of filing this registration
statement.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). These documents and
the documents incorporated herein by reference 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 (the "Prospectus").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Forcenergy Inc, a Delaware corporation (the "Company"), incorporates
herein by reference the following documents as of their respective dates as
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998 filed with the Commission on June 16, 1999, as
amended by the Form 10-K/A filed with the Commission on July 21,
1999;
(b) The Company's Current Report on Form 8-K/A filed with the
Commission on February 3, 1999;
(c) The Company's Current Report on Form 8-K filed with the
Commission on March 23, 1999;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999 filed with the Commission on June 16, 1999;
(e) The Company's Current Report on Form 8-K filed with the
Commission on April 15, 1999;
(f) The Company's Current Report on Form 8-K filed with the
Commission on June 14, 1999;
(g) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999 filed with the Commission on August 16, 1999;
(h) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999 filed with the Commission on November 15,
1999;
(i) The Company's Current Report on Form 8-K filed with the
Commission on January 25, 2000; and
(j) The Company's Current Report on Form 8-K filed with the
Commission on February 15, 2000.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
subsequent to the date of this Registration Statement and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of the Registration Statement and the Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which also is, or is deemed to be, incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or the Prospectus.
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<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be registered hereby is the Common Stock,
par value $.01 per share (the "Common Stock"), of the Company. The Company's
authorized capital stock consists of 100,000,000 shares of Common Stock and
10,000,000 shares of preferred stock.
Holders of Common Stock are entitled to one vote per share in the
election of directors and on all other matters submitted to a vote of common
stockholders and do not have cumulative voting rights. Holders of Common Stock
are entitled to receive ratably such dividends, if any, as may be declared by
the Board of Directors out of funds legally available therefore, subject to any
preferential dividend rights of holders of outstanding Preferred Stock. Upon the
liquidation, dissolution or winding up of the Company, the holders of Common
Stock are entitled to receive ratably the net assets of the Company available
after payment of all debts and other liabilities, subject to the prior rights of
any outstanding shares of Preferred Stock. Holders of Common Stock have no
preemptive, subscription, redemption or conversion rights.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Indemnification of Directors and Officers. Article XI of the Company's
Amended and Restated Certificate of Incorporation (the "Charter") provides that
the Company shall indemnify its present and former directors, officers and
persons presently or formerly serving at the request of the Company as directors
or officers of other corporations, partnerships, joint ventures, trusts or other
enterprises, against liabilities, damages, settlements, and expenses (including
attorneys' fees) to the fullest extent permitted by law, as now in effect and as
may be amended in the future, and as more particularly set forth in the
Company's Bylaws.
In general, Section 145 of the Delaware General Corporation Law (the
"DGCL") makes provision for the indemnification of officers and directors of
corporations in terms sufficiently broad to indemnify the officer and directors
of the Company under certain circumstances from liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as
amended (the "Act"). Section 102(b)(7) of the DGCL permits a corporation to
provide in its Charter 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 (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) in respect of certain unlawful
dividend payments or stock redemptions or repurchases, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article XI of the Charter further provides that the Company shall have
the power to purchase and maintain insurance on behalf of, and enter into
indemnification agreements with, any person who is or was a director or officer
of the Company, or who is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, against any liability asserted against and incurred by him
arising out of his status as such. Any indemnification agreement may contain
provisions intended to protect such person in the event of any actual or
threatened change of control of the Company, including provisions requiring the
Company to deposit into an irrevocable trust funds sufficient to cover actual or
potential obligations of the Company to indemnify or advance expenses (including
attorneys' fees) to such person.
Indemnification of Authorized Representatives in Third Party
Proceedings. Article VII, Section 7.01 of the Company's Bylaws provides that the
Company shall indemnify any person who was or is an "Authorized Representative"
of the Company (defined as a director or officer of the Company, or a person
serving at the request of the Company as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise) and who was
or is a "party" (which includes the giving of testimony or similar involvement)
or is threatened to be made a party to any "third party proceeding" (meaning any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative, other than an action by or in the
right of the Company) by reason that such person was or is an Authorized
Representative of the Company, against expenses and liabilities (including
attorneys' fees) incurred by such person in connection with the third party
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Company and, with respect
to any criminal third party proceeding had no reasonable cause to believe such
conduct was unlawful.
Indemnification of Authorized Representatives in Corporate Proceedings.
Article VII, Section 7.02 of the Company's Bylaws provides that the Company
shall indemnify any Authorized Representative who was or is a party
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<PAGE>
or is threatened to be made a party to any "corporate proceeding" (meaning any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor) by reason of the fact that such
person was or is an Authorized Representative of the Company, against expenses
incurred by such person in connection with the defense or settlement of such
corporate proceeding if such person acted in good faith and in a manner
reasonably believed to be in the best interests of the Company, except that no
indemnification shall be made in respect of any claim as to which such person
shall have been adjudged to be liable unless and only to the extent that the
court in which such proceeding was pending shall determine that, despite the
adjudication of liability but in view of all the circumstances of the case, such
Authorized Representative is fairly and reasonably entitled to indemnity.
Scope of Indemnification Rights and Insurance. The indemnification of
Authorized Representatives and advancement of expenses shall not be deemed
exclusive of any other rights such indemnitee may be entitled to under any
statute, agreement, vote of stockholders or disinterested directors. It shall be
the obligation of the Company to indemnify and advance expenses to Authorized
Representatives to the full extent permitted by law. The Company shall procure
and maintain at its sole expense insurance for the benefit of Authorized
Representatives, providing coverage against any and all claims, liabilities,
damages or expenses (including attorneys' fees) asserted against or incurred by
an authorized representative. The rights of Authorized Representatives under
such policy shall be in addition to their rights under the Bylaws or otherwise
available by contract or applicable law, and the maintenance of such insurance
coverage shall not satisfy or affect the Company's obligations to indemnify
Authorized Representatives.
Indemnification for Past Authorized Representatives. The
indemnification and advancement of expenses shall continue to apply to a person
who has ceased to be a director or Authorized Representative and shall inure to
the benefit of heirs, executors and administrators of such a person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
4.1* Amended and Restated Certificate of Incorporation of the Company dated
February 15, 2000. (Filed as Exhibit 3.1 to the Current Report on Form
8-K filed on February 16, 2000 and incorporated herein by reference).
4.2* Amended and Restated Bylaws of the Company dated February 15, 2000.
(Filed as Exhibit 3.2 to the Current Report on Form 8-K filed on
February 16, 2000 and incorporated herein by reference).
4.3* Specimen Common Stock certificate. (Filed as Exhibit 4.1 to the Current
Report on Form 8-K filed on February 16, 2000 and incorporated herein
by reference).
4.4* Forcenergy Inc 1999 Stock Plan (Filed as Exhibit 10.1 to the Current
Report on Form 8-K filed on February 16, 2000 and incorporated herein
by reference).
5.1 Opinion of Andrews & Kurth L.L.P., as to the legality of the securities
being registered.
23.1 Consent of Andrews & Kurth L.L.P. (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
23.2 Consent of PriceWaterhouseCoopers LLP.
23.3 Consent of Netherland, Sewell & Associates, Inc.
23.4 Consent of Collarini Engineering Inc.
24.1 Power of Attorney (set forth on the signature page contained in Part II
of this Registration Statement).
* Incorporated herein by reference.
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<PAGE>
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;
(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 (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendmentshall 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 of this Registration
Statement, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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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 Miami, State of Florida, on the
16th day of March, 2000.
FORCENERGY INC
By:/s/ E. Joseph Grady
--------------------------------
E. Joseph Grady
Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
officers and directors of Forcenergy Inc hereby constitutes and appoints
Stig Wennerstrom and E. Joseph Grady, and each 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 of 1933, 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 Securities and Exchange Commission or any regulatory
authority, granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stig Wennerstrom Chairman, President and Chief March 16, 2000
------------------------------------------
Stig Wennerstrom Executive Officer
(Principal Executive Officer)
Vice President and
/s/ E. Joseph Grady Chief Financial Officer February 25, 2000
------------------------------------------ (Principal Financial and
E. Joseph Grady Accounting Officer)
/s/ Michael F. Bennet Director March 16, 2000
------------------------------------------
Michael F. Bennett
Director March 16, 2000
------------------------------------------
Bruce L. Burnham
/s/ B. James Ford Director March 16, 2000
------------------------------------------
B. James Ford
/s/ Clifford F. Hickey Director March 16, 2000
------------------------------------------
Clifford P. Hickey
/s/ Robert Issal Director March 16, 2000
- ----------------------------------------------
Robert Issal
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stephen A. Kaplan Director March 16, 2000
------------------------------------------
Stephen A. Kaplan
/s/ Gregory P. Pipkin Director March 16, 2000
------------------------------------------
Gregory P. Pipkin
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1* Amended and Restated Certificate of Incorporation of the Company dated
February 15, 2000. (Filed as Exhibit 3.1 to the Current Report on Form
8-K filed on February 16, 2000 and incorporated herein by reference).
4.2* Amended and Restated Bylaws of the Company dated February 15, 2000.
(Filed as Exhibit 3.2 to the Current Report on Form 8-K filed on
February 16, 2000 and incorporated herein by reference).
4.3* Specimen Common Stock certificate. (Filed as Exhibit 4.1 to the Current
Report on Form 8-K filed on February 16, 2000 and incorporated herein
by reference).
4.4* Forcenergy Inc 1999 Stock Plan (Filed as Exhibit 10.1 to the Current
Report on Form 8-K filed on February 16, 2000 and incorporated herein
by reference).
5.1 Opinion of Andrews & Kurth L.L.P., as to the legality of the securities
being registered.
23.1 Consent of Andrews & Kurth L.L.P. (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
23.2 Consent of PriceWaterhouseCoopers LLP.
23.3 Consent of Netherland, Sewell & Associates, Inc.
23.4 Consent of Collarini Engineering Inc.
24.1 Power of Attorney (set forth on the signature page contained in Part II
of this Registration Statement).
* Incorporated herein by reference.
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<PAGE>
EXHIBITS 5.1 & 23.1
[Andrews & Kurth L.L.P. Letterhead]
March 16, 2000
Board of Directors
Forcenergy Inc
2730 S.W. 3rd Avenue, Suite 800
Miami, Florida 33129-2356
Gentlemen:
We have acted as counsel to Forcenergy 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 offering of up to 3,000,000
shares (the "Shares") of the Company's common stock, $.01 par value (the
"Common Stock"), pursuant to the Forcenergy Inc 1999 Stock Plan (the
"Plan").
In connection herewith, we have examined copies of such statutes,
regulations, corporate records and documents, certificates of public and
corporate officials and other agreements, contracts, documents and
instruments as we have deemed necessary as a basis for the opinion hereafter
expressed. In such examination, 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. We have also relied, to the extent we deem such reliance
proper, upon information supplied by officers and employees of the Company
with respect to various factual matters material to our opinion.
Based upon the foregoing and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares
have been duly authorized, and that such Shares, when issued in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
This opinion is limited in all respects to the General Corporation Law of
the State of Delaware and the laws of the United States of America insofar
as such laws are applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Prospectus without admitting that we are "experts"
under the Securities Act of 1933, as amended, or the rules and regulations
of the Commission issued thereunder, with respect to any part of the
Registration Statement, including this exhibit.
Very truly yours,
/s/ Andrews & Kurth L.L.P.
Andrews & Kurth L.L.P.
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<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Forcenergy Inc pertaining to the 1999 Stock Plan of
our report dated March 21, 1999 relating to the financial statements, which
report is included in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998.
PRICEWATERHOUSECOOPERS LLP
/s/ PriceWaterhouseCoopers L.L.P.
Miami, Florida
March 16, 2000
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<PAGE>
EXHIBIT 23.3
CONSENT OF NETHERLAND, SEWELL & ASSOCIATES, INC.
To the Board of Directors of Forcenergy Inc:
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Forcenergy Inc pertaining to the 1999 Stock Plan of
our reports dated March 5, 1999, March 4, 1998, and March 3, 1997, of the
estimates of net proved oil and natural gas reserves of Forcenergy Inc, and
their present values, as of January 1, 1999, 1998 and 1997 included in the
Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
NETHERLAND, SEWELL & ASSOCIATES, INC.
By: /s/ Danny D. Simmons
---------------------------------
Danny D. Simmons
Senior Vice President
Houston, Texas
March 16, 2000
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<PAGE>
EXHIBIT 23.4
March 16, 2000
To the Board of Directors of Forcenergy Inc:
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 of Forcenergy Inc pertaining to the 1999 Stock Plan
of our reports dated February 26, 1999, February 16, 1998 and February 7,
1997, and our estimates of the net proved natural gas and oil reserves of
Forcenergy, as of January 1, 1999, 1998 and 1997, and to all references to
our estimates of the net proved natural gas and oil reserves of the Company
as of those dates, included in the Annual Report on form 10-K for the year
ended December 31, 1998.
COLLARINI ENGINEERING INC.
By: /c/ Cheryl R. Collarini
-------------------------------
Cheryl R. Collarini, P.E.
President
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