As filed with the Securities and Exchange Commission on November 21, 1996
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------
COSTILLA ENERGY, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 75-2658940
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 WEST ILLINOIS, SUITE 1000 79701
MIDLAND, TEXAS (Zip Code)
(Address of principal executive offices)
BONUS INCENTIVE PLAN
OF COSTILLA ENERGY, INC.
(Full Title of the Plan)
-----------------------
BOBBY W. PAGE
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
COSTILLA ENERGY, INC.
400 WEST ILLINOIS, SUITE 1000
MIDLAND, TEXAS 79701
(915) 683-3092
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
RICHARD T. MCMILLAN
COTTON, BLEDSOE, TIGHE & DAWSON
500 WEST ILLINOIS, SUITE 300
MIDLAND, TEXAS 79701
-----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this registration statement.
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED UNIT (1) PRICE (1) FEE
- -------------------------------------------------------------------------------
Common Stock,
$.10 par value...... 100,000 $11.8125 $1,181,250 $358
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee and
computed in accordance with Rule 457(h) based upon the average of the high
and low prices for securities of the same class as quoted on the Nasdaq
National Market on November 18, 1996.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
NOTE: The document(s) containing the information concerning the Bonus
Incentive Plan of Costilla Energy, Inc. (the "Plan") required by Item 1 of
Form S-8 and the statement of availability of Registrant information and
other information required by Item 2 of this Form will be sent or given to
employees eligible to participate in the Plan as specified by Rule 428. In
accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. The Registrant
shall maintain a file of such documents in accordance with the provisions of
Rule 428. Upon request, the Registrant shall furnish to the Commission or
its staff a copy or copies of any or all of the documents included in such
file.
2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference: (1) that
certain prospectus of Costilla Energy, Inc. (the "Company") dated October 2,
1996, relating to the initial public offering of 4,800,000 shares of the
Company's common stock, par value $0.10 per share (the "Common Stock"), which
is the latest prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the "Securities Act") that contains audited
financial statements for the Company's last fiscal year for which such
statements have been filed; (2) all other reports filed by the Company
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since the end of the fiscal year covered by the
prospectus referred to in (1) above; and (3) the Registration Statement on
Form 8-A filed by the Company under Section 12 of the Exchange Act, and any
amendments thereto, containing the description of the Common Stock.
All documents hereafter filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment of this Registration Statement which indicates that
all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered pursuant to this Registration
Statement have been registered under Section 12 of the Exchange Act by the
filing of a Registration Statement on Form 8-A as described in Item 3 above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No expert named in the Registration Statement nor counsel for the Company
(1) was employed for such purpose on a contingent basis; (2) will receive a
direct or indirect interest in the Company or its subsidiaries; or (3) was a
promoter, underwriter, voting trustee, director, officer or employee of the
Company.
3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
permits a corporation to indemnify certain persons, including officers and
directors and former officers and directors, and to purchase insurance with
respect to liability arising out of their capacity or status as officers and
directors. Such law provides further that the indemnification permitted
thereunder shall not be deemed exclusive of any other rights to which
officers and directors may be entitled under the corporation's bylaws, any
agreement or otherwise. Article IX of the Company's Certificate of
Incorporation and Article VI of the Company's Bylaws provide, in general,
that the Company shall indemnify its directors and officers under the
circumstances defined in Section 145 of the General Corporation Law of the
State of Delaware and gives authority to the Company to purchase insurance
with respect to such indemnification. The Company may in the future seek to
obtain insurance providing for indemnification of officers and directors of
the Company and certain other persons against liabilities and expenses
incurred by any of them in certain stated proceedings and under certain
stated conditions.
In addition, Section 102(b)(7) of the General Corporation Law of the
State of Delaware permits a corporation to limit the liability of its
directors subject to certain exceptions. In accordance with Section
102(b)(7), Article VI of the Company's Certificate of Incorporation provides,
in general, that a director of the Company shall not be personally liable for
monetary damages for breach of the director's fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of the State of Delaware, or
(iv) for any transaction from which the director derived an improper personal
benefit, and that the director's liability be further limited to the fullest
extent permitted under Delaware law, as the same may be amended from time to
time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
---------- ----------------------
4.1* Certificate of Incorporation of the Company.
4.2* Bylaws of the Company.
4.3* Specimen Common Stock Certificate.
5.1 Opinion of Cotton, Bledsoe, Tighe & Dawson,
a Professional Corporation.
10.1* Bonus Incentive Plan of Costilla Energy, Inc.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Williamson Petroleum Consultants, Inc.
23.3 Consent of Elms, Faris & Co., P.C.
23.4 Consent of Cotton, Bledsoe, Tighe & Dawson, a
Professional Corporation (such consent is included
in the Opinion filed as Exhibit 5.1 to this
Registration Statement.)
24.1 Power of Attorney.
24.2 Certified copy of resolution of Board of Directors
of Costilla Energy, Inc. authorizing
signature pursuant to Power of Attorney.
- -----------------------
*These exhibits are incorporated herein by reference to the exhibits to the
Company's Registration Statements on Form S-1, Registration No. 333-08913 and
Registration No. 333-08909, filed with the Commission.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
5
(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 this 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 this Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8, or Form
F-3 and the information required to be included in the post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(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.
The Company hereby further 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 the 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.
6
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 Company 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.
7
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 Midland, State of Texas, on
November 20, 1996.
COSTILLA ENERGY, INC.
(Registrant)
By: /s/ Bobby W. Page
------------------------------------
Bobby W. Page,
Senior Vice President, Treasurer and
Chief Financial Officer
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 date indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ CADELL S. LIEDTKE* Chairman of the Board, November 20, 1996
- -------------------------- Chief Executive Officer and
Cadell S. Liedtke Director
/s/ MICHAEL J. GRELLA* President, Chief Operating November 20, 1996
- -------------------------- Officer and Director
Michael J. Grella
/s/ HENRY G. MUSSELMAN* Executive Vice President November 20, 1996
- -------------------------- and Director
Henry G. Musselman
/s/ BOBBY W. PAGE Senior Vice President, November 20, 1996
- -------------------------- Treasurer, and Chief
Bobby W. Page Financial Officer
/s/ W. D. KENNEDY* Director November 20, 1996
- --------------------------
W. D. Kennedy
/s/ JERRY J. LANGDON* Director November 20, 1996
- --------------------------
Jerry J. Langdon
*By: /s/ BOBBY W. PAGE
- --------------------------
Bobby W. Page,
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1* Certificate of Incorporation of the Company.
4.2* Bylaws of the Company.
4.3* Specimen Common Stock Certificate.
5.1 Opinion of Cotton, Bledsoe, Tighe & Dawson, a Professional
Corporation.
10.1* Bonus Incentive Plan of Costilla Energy, Inc.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Williamson Petroleum Consultants, Inc.
23.3 Consent of Elms, Faris & Co., P.C.
23.4 Consent of Cotton, Bledsoe, Tighe & Dawson, a Professional
Corporation (such consent is included in the Opinion filed as
Exhibit 5.1 to this Registration Statement.)
24.1 Power of Attorney.
24.2 Certified copy of resolution of Board of Directors of Costilla
Energy, Inc. authorizing signature pursuant to Power of Attorney.
_________________
*These exhibits are incorporated herein by reference to the exhibits to the
Company's Registration Statements on Form S-1, Registration No. 333-08913 and
Registration No. 333-08909, filed with the Commission.