Form S8-POS 06/29/04
As filed with the Securities and Exchange Commission on June 30, 2004
Amending Registration Nos. 333-30055
333-35352
333-88780
333-106438
================================================================================
UNITED STATES
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
St. Mary Land & Exploration Company
(Exact name of registrant as specified in its charter)
Delaware 41-0518430
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1776 Lincoln Street, Suite 700
Denver, Colorado 80203
(Address of Principal Executive Offices) (Zip Code)
St. Mary Land & Exploration Company Restricted Stock Plan
St. Mary Land & Exploration Company Stock Option Plan
St. Mary Land & Exploration Company Incentive Stock Option Plan
(Full titles of the plans)
Mark A. Hellerstein
Chairman of the Board, President and Chief Executive Officer
St. Mary Land & Exploration Company
1776 Lincoln Street, Suite 700
Denver, Colorado 80203
(Name and address of agent for service)
(303) 861-8140
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share price registration fee
---------------- ---------- --------- ----- ----------------
Common stock, 5,600,000 shares (2) --- (3) --- (3) --- (3)
$.01 par value (1)
---------------
(1) Includes associated stock purchase rights under the registrant's
shareholder rights plan adopted on July 15, 1999, as amended, that are
deemed to be delivered with each share of common stock issued by the
registrant and currently are not separately transferable apart from the
common stock.
(2) As explained in more detail under the "Explanatory Note" below, this total
of 5,600,000 shares has been previously registered under previously filed
Registration Statements on Form S-8 (Registration Nos. 333-30055,
333-35352, 333-88780 and 333-106438) with respect to the registrant's Stock
Option Plan and Incentive Stock Option Plan.
(3) As explained in more detail under the "Explanatory Note" below, the total
of 5,600,000 shares covered by this post-effective amendment to the
registration statements referred to in footnote 2 above has been previously
registered (and corresponding registration fees paid) under such
registration statements, and the registrant is hereby filing this
post-effective amendment to such registration statements to reflect the
registrant's newly adopted Restricted Stock Plan as an alternate plan under
which such previously registered shares may be issued. Accordingly, no
additional registration fees are required for these shares.
EXPLANATORY NOTE
On June 25, 1997, the registrant filed a Registration Statement on Form
S-8 (Registration No. 333-30055) to register 754,614 shares of common stock,
which included a total of 700,000 shares of common stock issuable under the St.
Mary Land & Exploration Company Stock Option Plan (the "Stock Option Plan")
and the St. Mary Land & Exploration Company Incentive Stock Option Plan (the
"Incentive Stock Option Plan") (with the Stock Option Plan and the Incentive
Stock Option Plan collectively referred to as the "Option Plans"). On April 21,
2000, the registrant filed a Registration Statement on Form S-8 (Registration
No. 333-35352) to register pursuant to General Instruction E of Form S-8 an
additional 950,000 shares of common stock issuable under the Option Plans. Under
Rule 416, those registration statements are deemed to cover an additional
1,650,000 shares of common stock, or a total of 3,300,000 shares of common
stock, as a result of a two shares-for-one share forward stock split effected in
the form of a stock dividend distributed in September 2000. On May 22, 2002, the
registrant filed a Registration Statement on Form S-8 (Registration No.
333-88780) to register pursuant to Instruction E of Form S-8 an additional
1,000,000 shares of common stock issuable under the Option Plans. On June 25,
2003, the registrant filed a Registration Statement on Form S-8 (Registration
No. 333-106438) to register pursuant to Instruction E of Form S-8 an additional
1,300,000 shares of common stock issuable under the Option Plans. Accordingly, a
total of 5,600,000 shares of common stock have been previously registered to
cover the total number of shares available under the Option Plans.
The Stock Option Plan currently provides that the total number of
shares that may be issued under the Stock Option Plan is 5,600,000, but that to
the extent that shares are issued under the Incentive Stock Option Plan, the
shares that may be issued under the Stock Option Plan are reduced. The Incentive
Stock Option Plan has a corresponding provision that the total number of shares
that may be issued under the Incentive Stock Option Plan is 5,600,000, but that
to the extent that shares are issued under the Stock Option Plan, the shares
that may be issued under the Incentive Stock Option Plan are reduced.
On April 8, 2004, the registrant adopted the St. Mary Land &
Exploration Company Restricted Stock Plan (the "Restricted Stock Plan"), which
provides that a total of 5,600,000 shares of common stock are available for
issuance under the Restricted Stock Plan, but that to the extent that options
are granted or have been granted under the Option Plans, the shares of common
stock available for issuance under the Restricted Stock Plan are reduced. In
addition, to the extent that shares of common stock are issued under the
Restricted Stock Plan, the shares of common stock that may be issued under the
Option Plans are reduced. Accordingly, the total number of shares of common
stock that may be issued under the Restricted Stock Plan and the Option Plans is
5,600,000, which is the same number of shares previously registered under the
above-referenced registration statements with respect to the Option Plans.
Therefore, the adoption of the Restricted Stock Plan did not result in any
additional issuable shares to be registered, but rather provides for an
alternate form of plan for the issuance of the previously registered 5,600,000
shares.
The registrant hereby files this post-effective amendment (the
"Amendment") to the above-referenced registration statements to reflect the
Restricted Stock Plan as an alternate plan under which shares of the
registrant's common stock previously registered under such registration
statement may be issued. The contents of the above-referenced registration
statements are incorporated by reference into this Amendment, each to the extent
not modified by this Amendment.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Documents containing the information specified in Part I of Form S-8
will be sent or given to participants in the Restricted Stock Plan and the
Option Plans of St. Mary Land & Exploration Company as specified by Rule
428(b)(1) under the Securities Act of 1933. Those documents and the documents
incorporated by reference in this registration statement pursuant to Item 3 of
Part II hereof, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
(1) The registrant's Annual Report on Form 10-K for the
year ended December 31, 2003;
(2) The registrant's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 2004;
(3) The registrant's Current Reports on Form 8-K filed on
January 23, 2004, February 10, 2004, February 27,
2004, March 15, 2004, April 22, 2004, and April 30,
2004 (in each case, except for information furnished
pursuant to Item 9 or Item 12 thereof); and
(4) The description of the registrant's common stock, par
value $.01, contained in the registrant's
Registration Statement on Form 8-A filed on November
12, 2002, including any amendment or report filed for
the purpose of updating such description.
All documents filed by the registrant subsequent to the date of this
registration statement 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 hereto which indicates that all securities offered hereby have been
sold or which deregisters any 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.
Any statement contained herein or in a document incorporated by
reference in this registration statement 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 that
also is or is deemed to be incorporated by reference herein, modifies and
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.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The registrant is a Delaware corporation. Section 145 of the Delaware
General Corporation Law contains provisions for the indemnification and
insurance of directors, officers employees and agents of a Delaware corporation
against liabilities which they may incur in their capacities as such. Those
provisions have the following general effects:
(a) A Delaware corporation may indemnify a person who is or
was a director, officer, employee or agent of the corporation against
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in
connection with any action, suit or proceeding (other than an action by
or in the right of the corporation) if the person acted in good faith
and in a manner such person reasonably believed to be in or not opposed
to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful.
(b) A Delaware corporation may indemnify a person who is or
was a director, officer, employee or agent of the corporation in an
action or suit by or in the right of the corporation against expenses
(including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged liable to the corporation (except under certain
circumstances).
(c) A Delaware corporation must indemnify a present or former
director or officer against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with any
action, suit or proceeding to the extent that such person has been
successful on the merits or otherwise in defense of the action, suit or
proceeding.
(d) A Delaware corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation against liability asserted against such person
and incurred by such person in any such capacity or arising from such
person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability under Section 145
of the Delaware General Corporation Law.
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The registrant's certificate of incorporation and by-laws contain
provisions to the general effect that the registrant shall, to the fullest
extent permitted by the Delaware General Corporation Law, indemnify any person
who is or was a director or officer of the registrant against liabilities which
such person may incur in such person's capacities as such. In addition, pursuant
to Section 102(b)(7) of the Delaware General Corporation Law, the registrant's
certificate of incorporation provides that a director of the corporation shall
not be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director:
(a) for any breach of the director's duty of loyalty to the
corporation or its stockholders;
(b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(c) under Section 174 of the Delaware General Corporation Law
(relating to unlawful payment of dividends or stock repurchases); or
(d) for any transaction from which the director derived an
improper personal benefit.
The registrant also maintains directors' and officers' insurance
covering certain liabilities that may be incurred by directors and officers in
the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are furnished as part of this registration
statement:
Exhibit
No. Description
------------- ---------------------------------------------------------------
4.1 St. Mary Land & Exploration Company Shareholder Rights Plan
adopted on July 15, 1999 (filed on October 4, 1999 as Exhibit
4.1 to the registrant's Quarterly Report on Form 10-Q/A for
the quarter ended June 30, 1999 and incorporated herein by
reference)
4.2 First Amendment to Shareholder Rights Plan dated March 15, 2002
as adopted by the Board of Directors on July 19, 2001 (filed on
March 19, 2002 as Exhibit 4.2 to the registrant's Annual Report
on Form 10-K for the year ended December 31, 2001 and
incorporated herein by reference)
5.1* Opinion of Ballard Spahr Andrews & Ingersoll, LLP
23.1* Consent of Deloitte & Touche LLP
23.2* Information About Lack of Consent of Arthur Andersen LLP
23.3* Consent of Ballard Spahr Andrews & Ingersoll, LLP (included
in Exhibit 5.1)
23.4* Consent of Ryder Scott Company, L.P.
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24.1* Power of Attorney (included in signature page hereof)
99.1* St. Mary Land & Exploration Company Restricted Stock Plan
99.2 St. Mary Land & Exploration Company Stock Option Plan, as
amended on May 22, 2003 (filed on June 25, 2003 as Exhibit 99.1
to the registrant's Registration Statement on Form S-8
(Registration No.
333-106438) and incorporated herein by reference)
99.3 St. Mary Land & Exploration Company Incentive Stock Option
Plan, as amended on May 22, 2003 (filed on June 25, 2003 as
Exhibit 99.2 to the registrant's Registration Statement on
Form S-8 (Registration No. 333-106438) and incorporated herein
by reference)
----------------------------
* Filed herewith.
Item 9. Undertakings.
(a) Rule 415 Offering. 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 this registration
statement (or the most recent post-effective amendment
thereto) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any
increase or decrease in the 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 Securities
and Exchange Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective 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 the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Securities and
Exchange Commission by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
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(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; 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.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference. 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 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
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Filing of Registration Statement on Form S-8. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant
pursuant to any provision or arrangement whereby the registrant may indemnify a
director, officer or controlling person of the registrant against liabilities
arising under the Securities Act, 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 Securities 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 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 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.
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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 Denver, State of Colorado, on June 29, 2004.
ST. MARY LAND & EXPLORATION COMPANY
By: /S/ MARK A. HELLERSTEIN
-----------------------
Mark A. Hellerstein,
Chairman of the Board of Directors,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby authorizes, constitutes and appoints Mark A. Hellerstein
and David W. Honeyfield his or her true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, and each with full power to
act alone, for the undersigned and in his or her own name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments and other amendments thereto) to this Registration Statement on Form
S-8 and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
each said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing as the undersigned could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, 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 and on the dates indicated.
Signature Title Date
--------------------------- ----------------------------------- -------------
/S/ MARK A. HELLERSTEIN Chairman of the Board of Directors, June 29, 2004
--------------------------- President and Chief Executive
Mark A. Hellerstein Officer
/S/ DAVID W. HONEYFIELD Vice President - Finance, Treasurer June 29, 2004
--------------------------- and Secretary
David W. Honeyfield
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/S/ GARRY A. WILKENING Vice President - Administration June 29, 2004
--------------------------- and Controller
Garry A. Wilkening
/S/ BARBARA M. BAUMANN Director June 29, 2004
---------------------------
Barbara M. Baumann
/S/ LARRY W. BICKLE Director June 29, 2004
---------------------------
Larry W. Bickle
/S/ RONALD D. BOONE Director June 29, 2004
---------------------------
Ronald D. Boone
/S/ THOMAS E. CONGDON Director June 29, 2004
---------------------------
Thomas E. Congdon
/S/ WILLIAM J. GARDINER Director June 29, 2004
---------------------------
William J. Gardiner
/S/ JOHN M. SEIDL Director June 29, 2004
---------------------------
John M. Seidl
Director June 29, 2004
---------------------------
William D. Sullivan
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