AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1999
REGISTRATION NO. 333-
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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
PENNACO ENERGY, INC.
(Exact name of registrant as specified in its charter)
NEVADA 88-0384598
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1050 17TH STREET, SUITE 700
DENVER, COLORADO 80265
(Address, including zip code, of Principal Executive Offices)
PENNACO ENERGY, INC.
1998 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
PAUL M. RADY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
1050 17TH STREET, SUITE 700
DENVER, COLORADO 80265
(303) 629-6700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPY TO:
DAVID P. OELMAN
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4200
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE REGISTERED AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED (1) PER SHARE (2) PRICE (2) FEE
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Common Stock, Par Value $.001 Per Share (3) 4,500,000 $12.375 $55,687,500 $15,481.13
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(1) The number of shares of common stock registered hereby is subject to
adjustment to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based upon the average of the high and low prices
of a share of the Company's common stock for June 25, 1999 on the American
Stock Exchange as reported in THE WALL STREET JOURNAL on June 28, 1999.
(3) The securities include certain rights associated with the common stock
issued pursuant to the Rights Agreement dated February 24, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Company incorporates herein by reference the following documents,
or portions of documents, as of their respective dates as filed with the
Securities and Exchange Commission:
(1) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1998;
(2) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1999; and
(3) The descriptions of the Company's common stock, par value $.001 per
share (the "Common Stock"), and certain rights associated with such
Common Stock (the "Rights") contained in the Company's registration
statement on Form 8-A, dated April 16, 1999, filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (No.
0-24881), including any amendments or reports filed for the purpose of
updating such descriptions.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all such
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 such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement since the class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada Revised Statutes and certain provisions of the Company's
By-Laws under certain circumstances provide for indemnification of the Company's
Officers, Directors and controlling persons against liabilities that they may
incur in such capacities. A summary of the circumstances in which such
indemnification is provided for is contained herein, but this description is
qualified in its entirety by reference to the Company's By-Laws and to the
statutory provisions.
In general, any Officer, Director, employee or agent may be indemnified
against expenses, fines, settlements or judgments arising in connection with a
legal proceeding to which such person is a party, if that person's actions were
in good faith, were believed to be in the Company's best interest, and were not
unlawful. Unless such person is successful upon the merits in such an action,
indemnification may be awarded only after a determination by independent
decision of the Board of Directors, by legal counsel, or by a vote of the
shareholders, that the applicable standard of conduct was met by the person to
be indemnified.
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The circumstances under which indemnification is granted in connection
with an action brought on behalf of the Company is generally the same as those
set forth above; however, with respect to such actions, indemnification is
granted only with respect to expenses actually incurred in connection with the
defense or settlement of the action. In such actions, the person to be
indemnified must have acted in good faith and in a manner believed to have been
in the Company's best interest, and must not have been adjudged liable for
negligence or misconduct.
Indemnification may also be granted pursuant to the terms of agreements
that may be entered in the future or pursuant to a vote of shareholders or
Directors. The statutory provision cited above also grants the power to the
Company to purchase and maintain insurance which protects its Officers and
Directors against any liabilities incurred in connection with their service in
such a position, and such a policy may be obtained by the Company.
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
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5.1 Opinion of Gibson, Haglund & Johnson.
23.1 Consent of KPMG LLP.
23.2 Consent of Gibson, Haglund & Johnson (included in Exhibit 5.1).
24.1 Power of Attorney (included in Part II of the Registration Statement).
99.1 Pennaco Energy, Inc. 1998 Stock Option and Incentive Plan.
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 to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a
fundamental change in the information 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% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) Include any additional or changed material
information on the plan of distribution.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of the
securities at that time shall be deemed to be the initial bona
fide offering.
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(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the
end of the offering.
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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 Denver, State of Colorado, on the
29th day of June, 1999.
PENNACO ENERGY, INC.
(Registrant)
By: /s/ Paul M. Rady
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Paul M. Rady
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Pennaco Energy, Inc. (the "Company") hereby constitutes and
appoints Paul M. Rady and Glen C. Warren, Jr., or either 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, as amended, 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 and about the premises 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 said attorneys-in-fact and agents, or any of them, or
their substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on June 29,
1999 in the capacities indicated.
SIGNATURE TITLE
/s/ Paul M. Rady President, Chief Executive Officer and Director
- --------------------------- (Principal Executive Officer)
Paul M. Rady
/s/ Jeffrey L. Taylor Chairman of the Board of Directors
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Jeffrey L. Taylor
/s/ Glen C. Warren, Jr. Executive Vice President, Chief Financial
- --------------------------- Officer and Director (Principal Financial
Glen C. Warren, Jr. Officer)
/s/ Gregory V. Gibson Vice President, Legal, Secretary and Director
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Gregory V. Gibson
/s/ David W. Lanza Director
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David W. Lanza
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EXHIBIT INDEX
Exhibit Location of
Number Exhibit
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5.1 Opinion of Gibson, Haglund & Johnson.
23.1 Consent of KPMG LLP.
23.2 Consent of Gibson, Haglund & Johnson (included in Exhibit 5.1).
24.1 Power of Attorney (included in Part II of the Registration Statement).
99.1 Pennaco Energy, Inc. 1998 Stock Option and Incentive Plan.
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