As filed with the Securities and Exchange Commission on May 31, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CONVEST ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS 76-0312028
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
2401 Fountain View Dr., Suite 700
Houston, Texas 77057
(Address of Principal Executive Offices)
1995 STOCK INCENTIVE PLAN
(Full title of the plan)
CONVEST ENERGY CORPORATION
2401 Fountain View Dr., Suite 700
Houston, Texas 77057
(713) 780-1952
(Name, address and telephone number of agent for service)
Copies to:
PAUL E. PRYZANT
SNELL & SMITH, P. C.
1000 Louisiana, Suite 3650
Houston, Texas 77002
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share price fee
- -------------------------- ---------------- ---------- ---------- ------------
Common Stock, 1,000,000 shares $4 .875 (2) $4,875,000 $1,681.03
$.01 par value
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(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable pursuant to the antidilution
adjustment provisions of the plan.
(2) In accordance with Rule 457, calculated on the basis of the average of the
high and low sale prices for Common Stock on the American Stock Exchange on
May 28, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this
registration statement:
(a) The Registrant's latest annual report on Form 10-K, or, if the
financial statements therein are more current, the Registrant's latest
prospectus, other than the prospectus of which this document is a part, filed
pursuant to rule 424(b) or (c) of the Securities Exchange Commission under the
Securities Act of 1933.
(b) All other reports filed by the Registrant pursuant to sections
13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the annual report or the prospectus referred to in (a)
above.
(c) The descriptions of the Registrant's Common Stock which are
contained in the Registrant's registration statement filed under section 12 of
the Securities Exchange Act of 1934, including any amendment or reports filed
for the purpose of updating such descriptions.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to the registration statement
which indicates that all of the shares of common stock offered have been sold or
which deregisters all of such shares then remaining unsold, shall be deemed to
be incorporated by reference in the registration statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any other 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 this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XI of the Registrant's Articles of Incorporation, as amended
(the "Articles"), and Article IV of the Registrant's Restated Bylaws, as amended
(the "Bylaws"), contain identical indemnification provisions that are consistent
with, and subject to the limitations of the Texas Business Corporation Act
("TBCA"). To the maximum extent permitted by law, the Registrant's Articles and
Bylaws provide for mandatory
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indemnification of directors, and permissive indemnification of officers,
employees, agents and other persons acting for the Registrant against losses,
damages, claims or liabilities to which they may become subject or which they
may incur as a result of being or having been a director, officer, employee or
agent of the Registrant or other person acting for the Registrant. In addition,
the Registrant must advance or reimburse directors and officers, and may advance
or reimburse employees, agents or other persons for expenses incurred by them in
connection with indemnifiable claims. As permitted by the TBCA, the
Registrant's Board of Directors, by duly adopted resolution, has provided that
the Registrant shall indemnify its officers duly elected or appointed by the
Registrant's Board of Directors in the same manner and to the same extent that
the Registrant is obligated to indemnify its directors pursuant to the Articles
and Bylaws, as each may be amended or restated from time to time.
Article 2.02-1 of the TBCA empowers the Registrant to indemnify
present and former directors, officers, employees, agents and other persons
acting on the Registrant's behalf against judgments, penalties (including excise
and similar taxes), fines, settlements and reasonable expenses (including court
costs and attorneys' fees) actually incurred by them in connection with a
proceeding brought against them in their respective present or former capacities
as directors, officers, employees or agents of the Registrant, or of any other
entity in which they are or were serving in such at the Registrant's request.
However, the TBCA provides that unless a court of competent jurisdiction
determines otherwise, indemnification is available only if the person (1) acted
in good faith, (2) reasonably believed that he acted (a) in his official
capacity, in a manner which was in the corporation's best interests, and (b) in
other than his official capacity, in a manner which he reasonably believed was
at least not opposed to the corporation's best interests, and (3) in the case of
any criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. Even if these three elements are established, if a person is found
liable to the corporation, or liable on the basis that he received an improper
personal benefit, indemnification is (i) limited to his reasonable expenses, and
(ii) prohibited if he is found liable for willful or intentional misconduct in
performing his duties to the corporation.
The TBCA prescribes procedures that a corporation must use in
determining whether a claim is indemnifiable under the statute; if so, whether
to authorize indemnification (unless it is made mandatory by articles of
incorporation, bylaws, director or shareholder resolution, or agreement); and
the reasonableness of any expenses for which indemnification is sought. Each of
these determinations must be made by (i) majority vote of a quorum of
disinterested directors, (ii) if such quorum is unobtainable, then by a majority
vote of a special committee of disinterested directors appointed by a majority
vote of all directors, (iii) special legal counsel selected by the board of
directors or a committee of the board by vote as described in (i) or (ii), or if
such quorum is unobtainable or such committee cannot be established, then by a
majority vote of all directors, or (iv) vote of disinterested shareholders.
Consistent with Article 2.02-1 of the TBCA, the Registrant's Articles
and Bylaws, also empower it to procure and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Registrant,
or at the Registrant's request, of another entity, against any liability
asserted against him in such capacity regardless of whether the Registrant could
indemnify him against such liability under the TBCA.
In accordance with Article 1302-7.06 of the Texas Miscellaneous
Corporation Laws Act, Article X of the Registrant's Articles of Incorporation,
as amended, eliminates a director's liability to the Registrant and its
shareholders for monetary damages for an act or omission in his capacity as a
director, except that such provision does not eliminate or limit a director's
liability for: (1) a breach of his duty of loyalty to the Registrant or its
shareholders, (2) an act or omission not in good faith or involving intentional
misconduct
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or a knowing violation of law, (3) a transaction from which he received an
improper benefit, (4) an act or omission for which the liability of a director
is expressly provided for by statute, or (5) an act related to an unlawful stock
repurchase or dividend payment. If a director breaches any other fiduciary duty
in performing his duties as a director, neither the Registrant nor its
shareholders could recover monetary damages from the director; only equitable
remedies, such as an action to enjoin or rescind a transaction involving a
breach of fiduciary duty, may be available. To the extent certain claims
against directors are limited to equitable remedies, the provision in the
Registrant's Articles of Incorporation, as amended, may reduce the likelihood of
derivative litigation and may discourage shareholders or management from
initiating litigation against directors for breach of their fiduciary duties.
Additionally, equitable remedies may not be effective in many situations. If a
shareholder's only remedy is to enjoin the completion of the board of directors'
action, such remedy would be ineffective if the shareholder does not become
aware of a transaction or event until after it has been completed. In such a
situation, it is possible that the Registrant and its shareholders would have
not effective remedy against the directors.
The above discussion of the Registrant's Articles and Bylaws and Texas
statutes is not intended to be exhaustive and is qualified in its entirety by
the Articles and Bylaws and such statutes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of the Registrant [Incorporated by reference
to Exhibit 4.2 to Registrant's Current Report on Form 8-K filed on
December 24, 1990]
4.2 Bylaws of the Registrant [Incorporated by reference to Exhibit 3.2 to
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1992]
4.3 Specimen Stock Certificate [Incorporated by reference to Exhibit 8.1
to Registrant's Current Report on Form 8-K filed on December 24, 1990]
* 5.1 Opinion of Snell & Smith, A Professional Corporation
* 10.1 1995 Stock Incentive Plan
* 23.1 Consent of Snell & Smith, a Professional Corporation [Included in
Exhibit 5.1]
* 23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (Included on Page II-7)
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* Filed herewith
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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) 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;
(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 paragraph (a)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 Section 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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause
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to be delivered to each person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, un enforceable. In the event that a claim or
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 pinion 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 Act and will
be governed by the final adjudication of such issue.
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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 or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas on May 30,
1996.
CONVEST ENERGY CORPORATION
By: Michael Y. McGovern
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MICHAEL Y. McGOVERN, Chairman
and Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of Convest Energy Corporation,
hereby severally constitute Michael Y. McGovern and Gary L. Pittman, and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names, in the capacities indicated below,
the Registration Statement filed herewith and any amendments to said
Registration Statement, and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable Convest Energy
Corporation to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
Witness our hands on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
persons in the capacities and on May 30, 1996.
Signature Title
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Michael Y. McGovern Chairman of the Board and Chief
- -------------------------------------- Executive Officer
Michael Y. McGovern
Richard T. Howell President and Chief Operating Officer
- -------------------------------------- and Director
Richard T. Howell
Gary L. Pittman Executive Vice President and Chief
- -------------------------------------- Financial Officer (Principal
Gary L. Pittman Financial and Accounting Officer)
Timothy J. Andrews
- -------------------------------------- Director
Timothy J. Andrews
E. Murray Gullatt
- -------------------------------------- Director
E. Murray Gullatt
Vernon T. Jones, Sr.
- -------------------------------------- Director
Vernon T. Jones, Sr.
T. Franklin Myers
- -------------------------------------- Director
T. Franklin Myers
Leonard B. Rosenberg
- -------------------------------------- Director
Leonard B. Rosenberg
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