As filed with the Securities and Exchange Commission on September 12, 2003.
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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
Nexen INC.
(Exact name of registrant as specified in its charter)
CANADA 98-6000202
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
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801 - 7th Avenue S.W.
Calgary, Alberta, Canada T2P 3P7
(Address, including zip code, and
telephone number, including
area code, of registrant's
principal executive
offices)
Amended and Restated Stock Option Plan
(Full title of the plan)
Nexen Petroleum U.S.A. Inc.
12790 Merit Drive
Suite 800, LB 94
Dallas, Texas 75251
(Name and address of agent for service)
(972) 450-4600
(Telephone number, including area code, of agent for service)
-----------------------
COPIES TO:
John B. McWilliams Edwin S. Maynard
Senior Vice President, General Counsel and Secretary Paul, Weiss, Rifkind, Wharton & Garrison LLP
Nexen Inc. 1285 Avenue of the Americas
635 - 8th Avenue S.W. New York, New York 10019-6064
Calgary, Alberta, Canada T2P 3Z1
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered Registered (1)(2) Per Share (3) Price (3) Registration Fee
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Common Shares, no par value 2,000,000 shares $ 27.48 $54,960,000 $4,446.27
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(1) This Registration Statement also applies to rights under the Registrant's
Shareholder Rights Plan Agreement, which are attached to and tradable only
with the common shares registered hereby. No registration fees are required
for such rights as they will be issued for no additional consideration.
(2) This Registration Statement shall, in accordance with Rule 416 under the
Securities Act of 1933, as amended, be deemed to cover such additional
shares as may be issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
(3) Calculated in accordance with Rule 457(c) and (h)(1) under the Securities
Act as amended, equal to $27.48, the average of the high and low prices
reported on the New York Stock Exchange on September 8, 2003, a date within
five business days of the filing of this Registration Statement.
INCORPORATION BY REFERENCE
OF
REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-13574)
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We are filing this registration statement for the purpose of
registering, in accordance with General Instruction E of Form S-8, an additional
2,000,000 Common Shares, no par value, to be issued under the Registrant's
Amended and Restated Stock Option Plan. We incorporate by reference into this
registration statement on Form S-8 our previously filed registration statement
on Form S-8 (File No. 333-13574, filed on May 31, 2001) in its entirety,
including the exhibits to it.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 6. Indemnification of Directors and Officers
Section 124 of the Canada Business Corporations Act provides
as follows:
124. (1) Indemnification. A corporation may indemnify a director or
officer of the corporation, a former director or officer of
the corporation or another individual who acts or acted at the
corporation's request as a director or officer, or an
individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably
incurred by the individual in respect of any civil, criminal,
administrative, investigative or other proceeding in which the
individual is involved because of that association with the
corporation or other entity.
(2) Advance of Costs. A corporation may advance moneys to a
director, officer or other individual for the costs, charges
and expenses of a proceeding referred to in subsection (1).
The individual shall repay the moneys if the individual does
not fulfil the conditions of subsection (3).
(3) Limitation. A corporation may not indemnify an individual
under subsection (1) unless the individual
(a) acted honestly and in good faith with a view to the
best interests of the corporation, or, as the case
may be, to the best interests of the other entity for
which the individual acted as director or officer or
in a similar capacity at the corporation's request;
and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty,
the individual had reasonable grounds for believing
that the individual's conduct was lawful.
(4) Indemnification in derivative actions. A corporation may with
the approval of a court, indemnify an individual referred to
in subsection (1), or advance moneys under subsection (2), in
respect of an action by or on behalf of the corporation or
other entity to procure a judgment in its favour, to which the
individual is made a party because of the individual's
association with the corporation or other entity
as described in subsection (1) against all costs, charges and
expenses reasonably incurred by the individual in connection
with such action, if the individual fulfills the conditions
set out in subsection (3).
(5) Right to indemnity. Despite subsection (1), an individual
referred to in that subsection is entitled to indemnity from
the corporation in respect of all costs, charges and expenses
reasonably incurred by the individual in connection with the
defence of any civil, criminal, administrative, investigative
or other proceeding to which the individual is subject because
of the individual's association with the corporation or other
entity as described in subsection (1), if the individual
seeking indemnity
(a) was not judged by the court or other competent
authority to have committed any fault or omitted to
do anything that the individual ought to have done;
and
(b) fulfills the conditions set out in subsection (3).
(6) Insurance. A corporation may purchase and maintain insurance
for the benefit of an individual referred to in subsection (1)
against any liability incurred by the individual
(a) in the individual's capacity as a director or officer
of the corporation; or
(b) in the individual's capacity as a director or
officer, or similar capacity, of another entity, if
the individual acts or acted in that capacity at the
corporation's request.
(7) Application to court. A corporation, an individual or an
entity referred to in subsection (1) may apply to a court for
an order approving an indemnity under this section and the
court may so order and make any further order that it sees
fit.
(8) Notice to Director. An applicant under subsection (7) shall
give the Director notice of the application and the Director
is entitled to appear and be heard in person or by counsel.
(9) Other notice. On an application under subsection (7) the court
may order notice to be given to any interested person and the
person is entitled to appear and be heard in person or by
counsel.
Section 7 of the By-laws of the Registrant contains the
following provisions with respect to indemnification of the Registrant's
directors and officers with respect to certain insurance maintained by the
Registrant with respect to its indemnification obligations:
7.01 LIMITATION OF LIABILITY.
Every director and officer of the Corporation in exercising his powers
and discharging his duties shall act honestly and in good faith with a
view to the best interests of the Corporation and shall exercise the
care, diligence and skill that a reasonable prudent person would
exercise in comparable circumstances, including reliance in good faith
on:
(a) financial statements of the Corporation represented
to the director by an officer of the Corporation or
in a written report of the auditor of the Corporation
fairly to reflect the financial condition of the
Corporation; or
(b) a report of a person whose profession lends
credibility to a statement made by the professional
person.
Subject to the foregoing, no director or officer shall be liable for
the acts, receipts, neglects or defaults of any other director, officer
or employee, or for joining in any receipt or other act for conformity,
or for any loss, damage or expense happening to the Corporation through
the insufficiency or deficiency of title to any property acquired for
or on behalf of the Corporation, or for the insufficiency or deficiency
of any security in or upon which any of the moneys of the Corporation
shall be invested, or for any loss or damage arising from the
bankruptcy, insolvency or tortious acts of any person with whom any of
the moneys, securities or effects of the Corporation shall be
deposited, or for any loss occasioned by any error of judgement or
oversight on his part, or for any other loss, damage or misfortune
which shall happen in the execution of the duties of his office or
trust or in relation thereto; provided that nothing herein shall
relieve any director or officer from the duty to act in accordance with
the Act and the regulations thereunder or from liability for any breach
thereof.
7.02 INDEMNITY.
Subject to the provisions of the Act, the Corporation shall indemnify a
director officer, a former director or officer or another individual
who acts or acted at the Corporation's request as a director or
officer, or an individual acting in a similar capacity of another
entity, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgement, reasonably incurred by
the individual in respect to any civil, criminal, administrative or
investigative action or other proceeding in which the individual is
involved because of that association with the Corporation or other
entity if, exercising the care, diligence and skill that a reasonably
prudent person would exercise in comparable circumstances: (a) the
individual acted honestly and in good faith with a view to the best
interests of the Corporation or, as the case may be, to the best
interests of the other entity for which the individual acted as
director or officer or in a similar capacity at the Corporation's
request, and (b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, the individual had
reasonable grounds for believing that the individual's conduct was
lawful. The Corporation shall also indemnify any such person in such
other circumstances as the Act or law permits or requires. Nothing in
this by-law shall limit the right of any person entitled to indemnity
to claim indemnity apart from the provisions of this by-law to the
extent permitted by the Act or law.
7.03 ADVANCE OF COSTS.
The Corporation may advance moneys to any director, officer or other
individual for the costs, charges and expenses of a proceeding referred
to in Section 7.02. The individual, however, shall repay the moneys to
the Corporation if the individual does not fulfill the conditions set
out in subsection 7.02(a) and, as applicable, subsection 7.02(b).
7.04 INSURANCE.
Subject to the Act, the Corporation may purchase and maintain insurance
for the benefit of any person referred to in Section 7.02 against any
liability incurred by him in his capacity as a director or officer of
the Corporation or of another body corporate where he acts or acted in
that capacity at the Corporation's request.
Item 8. Exhibits
EXHIBIT DESCRIPTION
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4.1 By-Law No. 1 of the Registrant enacted February 15, 2002, being a
by-law relating generally to the transaction of the business and
affairs of the Registrant (filed as Exhibit 2 to Form 8A/A dated
August 20, 2002, filed by the Registrant and incorporated by
reference herein)
4.2 Amended and Restated Shareholder Rights Plan Agreement dated May
2, 2002 between the Corporation and CIBC Mellon Trust Company, as
Rights Agent, which includes the Form of Rights Certificate as
Exhibit A (filed as Exhibit 3 to Form 8-A/A dated August 20,
2002, filed by the Registrant and incorporated by reference
herein)
5.1 Opinion of Blake, Cassels & Graydon LLP, counsel to Nexen, Inc.,
regarding the legality of the securities being registered
23.1 Consent of Blake, Cassels & Graydon LLP, counsel to Nexen Inc.
23.2 Consent of Deloitte & Touche LLP
24.1 Powers of Attorney (included on the signature pages to this
registration statement)
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 Calgary, Province of Alberta, on September 12,
2003.
NEXEN INC.
By: /s/ John B. Mcwilliams
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John B. McWilliams
Senior Vice President, General
Counsel and Secretary
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints John B. McWilliams and Charles
W. Fischer as such person's true and lawful attorneys-in-fact and agents, with
full power of substitution and revocation, for such person and in such person's
name, place and stead, in any and all capacities (until revoked in writing), to
sign any and all amendments (including post-effective amendments) to this
registration statement and to file the same with all exhibits thereto, and the
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and things
requisite and necessary to be done, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated effective September 12, 2003:
SIGNATURE TITLE
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* President, Chief Executive Officer and
- -------------------------------------- Director (Principal Executive Officer)
Charles W. Fischer
/s/ Dennis G. Flanagan Director
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Dennis G. Flanagan
SIGNATURE TITLE
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/s/ David A. Hentschel Director
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David A. Hentschel
/s/ S. Barry Jackson Director
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S. Barry Jackson
/s/ Kevin J. Jenkins Director
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Kevin J. Jenkins
/s/ Thomas C. O'neill Director
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Thomas C. O'Neill
/s/ Francis M. Saville Director
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Francis M. Saville
/s/ Richard M. Thomson Director
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Richard M. Thomson
/s/ John M. Willson Director
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John M. Willson
/s/ Victor J. Zaleschuk Director
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Victor J. Zaleschuk
/s/ Marvin F. Romanow Executive Vice President and Chief
- -------------------------------------- Financial Officer (Principal Financial
Marvin F. Romanow Officer)
SIGNATURE TITLE
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/s/ Michael J. Harris Controller
- -------------------------------------- (Controller and Principal Accounting
Michael J. Harris Officer)
* executed pursuant to power-of-
attorney filed previously.
Pursuant to the requirements to Section 6(a) of the Securities Act, the
undersigned has signed this Registration Statement solely in the capacity of the
duly authorized representative of the Registrant in the United States on
September 12, 2003.
NEXEN PETROLEUM U.S.A. INC.
By: /s/ Douglas B. Otten
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Douglas B. Otten
President and Chairman of the Board
EXHIBIT INDEX
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EXHIBIT DESCRIPTION
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4.1 By-Law No. 1 of the Registrant enacted February 15, 2002, being a
by-law relating generally to the transaction of the business and
affairs of the Registrant (filed as Exhibit 2 to Form 8A/A dated
August 20, 2002, filed by the Registrant and incorporated by
reference herein)
4.2 Amended and Restated Shareholder Rights Plan Agreement dated May
2, 2002 between the Corporation and CIBC Mellon Trust Company, as
Rights Agent, which includes the Form of Rights Certificate as
Exhibit A (filed as Exhibit 3 to Form 8-A/A dated August 20,
2002, filed by the Registrant and incorporated by reference
herein)
5.1 Opinion of Blake, Cassels & Graydon LLP, counsel to Nexen, Inc.,
regarding the legality of the securities being registered
23.1 Consent of Blake, Cassels & Graydon LLP, counsel to Nexen Inc.
23.2 Consent of Deloitte & Touche LLP
24.1 Powers of Attorney (included on the signature pages to this
registration statement)