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As Filed with the Securities Registration No.333-_____
and Exchange Commission on
November 25, 1996.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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F O R M S - 8
REGISTRATION STATEMENT
Under the Securities Act of 1933
The Exploration Company
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(Exact name of issuer as specified in its charter)
Colorado 84-0793089
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
500 North Loop 1604 East, Suite 250, San Antonio, Texas 78232
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(Address of Principal Executive Office) (Zip Code)
1995 Flexible Incentive Plan
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(Full title of the Plan)
James E. Sigmon
500 North Loop 1604 East, Suite 250, San Antonio, Texas 78232
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(Name and address of agent for service)
(210) 496-5300
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(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
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Proposed
Title of Proposed maximum
securities Amount maximum aggregate Amount of
to be to be offering price offering registration
registered registered per unit price fee
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Common Stock
$.01 par value (1) $400,000 (2) $2.38 (2) $952,000 (2) $288.48
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(1) This Registration Statement also covers such additional number of shares,
presently undeterminable, as may become issuable under the Plan in the event of
Common Stock dividends, Common Stock splits, mergers, reorganizations, split-
ups, combinations, recapitalizations or other changes in Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h).
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PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Omitted pursuant to Rule 424 promulgated by the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "1934 Act").
Item 2. Registrant Information and Employee Plan Annual Information
Omitted pursuant to Rule 424 promulgated by the Commission pursuant to
the 1934 Act.
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PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by The Exploration Company (hereinafter
the "Company" or the "Registrant") with the Commission are incorporated in and
made a part of this Registration Statement by reference: Item 2, "Description
of Registrant's Securities to be Registered," on Form 8-A dated February 1,
1980; Annual Report on Form 10-K for the fiscal year ended August 31, 1995;
Quarterly Report on Form 10-Q for the quarter ended November 30, 1995;
Quarterly Report on Form 10-Q for the quarter ended February 29, 1996;
Quarterly Report on Form 10-Q for the quarter ended May 31, 1996; and Current
Report on Form 8-K dated May 31, 1996; and Current Report on Form 8-K dated
September 4, 1996.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the 1934 Act after the date of this Registration
Statement, and prior to the filing of a post-effective amendment which
indicates that all securities offered 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 thereof from the date
of the filing of such documents.
Item 4. Description of Securities
Non-applicable.
Item 5. Interests of Named Experts and Counsel
Non-applicable.
Item 6. Indemnification of Directors and Officers
The Company shall indemnify its directors, officers, employees and
agents to the fullest extent permitted by the Colorado Business Corporation Act
and its Certificate of Incorporation.
The Company's Certificate of Incorporation eliminates liability of the
Company's directors for monetary damages for breaches of their 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 403 of the Colorado Business Corporation Act, as the
same exists or hereafter may be amended, or (iv) for any transaction from which
the director derived an improper personal benefit. If the Colorado Business
Corporation Act hereafter is amended to authorize the further elimination or
limitation on personal liability of directors, then the liability of a director
of the Company, in addition to the limitation on
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personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Colorado Business Corporation Act. Any repeal or
modification of this paragraph by the stockholders of the Company shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the Company existing at the time of such repeal or
modification.
The Company may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Company or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the Company would have the
power to indemnify such person against such expense, liability or loss under
the Colorado Business Corporation Act Law.
Item 7. Exemption from Registration Claimed
Non-applicable.
Item 8. Exhibits
4.1 The Company's Certificate of Incorporation.
4.2 The Company's Bylaws.
4.3 The 1995 Flexible Incentive Plan.
5.1 Opinion of Small, Craig & Werkenthin, P.C.
23.1 Consent of Akin, Doherty, Klein & Fuege, P.C.
23.2 Consent of Small, Craig & Werkenthin, P.C., is included in their opinion filed as Exhibit 5.1 of
this Registration Statement.
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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 (the "1933 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, represents a fundamental change
in the information set forth in the registration statement;
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(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the registration statement is on
Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registration pursuant to Section 13
or Section 15(d) of the 1934 Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the 1933 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.
(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 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each employee to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14(a)-3 or Rule 14(c)-3 under the 1934 Act;
and, where interim financial information required to be presented by Article 3
of Regulation S-X are not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sooner 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 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing
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provisions, or otherwise, the Registrant has been advised that in the opinion
of the Commission such indemnification is against public policy as expressed in
the 1933 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 director, officer or controlling
person of the Registrant the successful defense of any action, suit or
proceeding) as 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 of
whether such indemnification by it is against the public policy as expressed in
the 1933 Act and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. 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 San Antonio, State of Texas, on
November 7, 1996.
REGISTRANT:
THE EXPLORATION COMPANY
By: /s/ James E. Sigmon
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Name: James E. Sigmon
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Title: President
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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.
11-8-96 /s/ Stephen M. Gose, Jr.
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Date Stephen M. Gose, Jr., Chairman
of the Board
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11-7-96 /s/ James E. Sigmon
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Date James E. Sigmon, President and
Director
11-7-96 /s/ Thomas H. Gose
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Date Thomas H. Gose, Secretary and
Director
11-7-96 /s/ Roberto R. Thomae
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Date Roberto R. Thomae, Principal
Financial Officer, Controller or
Principal Accounting Officer
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INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
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4.1 The Company's Certificate of Incorporation.
4.2 The Company's Bylaws.
4.3 The 1995 Flexible Incentive Plan.
5.1 Opinion of Small, Craig & Werkenthin, P.C.
23.1 Consent of Akin, Doherty, Klein & Fuege, P.C.
23.2 Consent of Small, Craig & Werkenthin, P.C., is included in
their opinion filed as Exhibit 5.1 of this Registration
Statement.