As filed with the Securities and Exchange Commission on May 12, 2005
Registration No. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
ENERGY PARTNERS, LTD.
(Exact name of registrant as specified in its charter)
Delaware 72-1409562
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
201 St. Charles Avenue, Suite 3400
New Orleans, Louisiana 70170
(504) 569-1875
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------------------
Amended and Restated 2000 Stock Incentive Plan for Non-Employee Directors
(Full Title of the Plan)
____________________________
John H. Peper
Executive Vice President,
General Counsel and Corporate Secretary
Energy Partners, Ltd.
201 St. Charles Avenue, Suite 3400
New Orleans, Louisiana 70170
(504) 569-1875
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
___________________
Copies of communications to:
John Schuster, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
(212) 701-3000
___________________
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
maximum maximum
Amount to be offering aggregate Amount of
Title of securities to be registered registered price per offering registration
(1)(2) share price fee
====================================================================================================================
Common stock, par value $0.01 per share, of Energy Partners, Ltd.
Shares not previously registered 250,000 $ 24.235 $6,058,750 (3) $713.11
Shares registered under a prior registration 230,000 N/A(4) N/A(4)
statement N/A(4)
Total 480,000 $24.235 $6,058,750 $713.11
====================================================================================================================
(1) In addition, pursuant to Rule 416 under the Securities Act, this
registration statement will cover such indeterminate number of shares of
common stock of Energy Partners, Ltd. that may be issued in respect of
stock splits, stock dividends and similar transactions.
(2) Of the shares to be registered under this Registration Statement, 230,000
shares were previously registered for offer and sale under the Registrant's
2000 Stock Option Plan for Non-Employee Directors pursuant to a
registration statement on Form S-8 filed on February 20, 2001 (No.
333-55940) (the "Registration Statement") (such shares, the "Carried
Forward Shares") and the balance are newly registered shares.
(3) Estimated solely for the purposes of computing the amount of the
registration fee under Rules 457(c) and (h) of the Securities Act based on
the average of the high and low prices of the common stock reported in the
consolidated reporting system by the New York Stock Exchange as of May 9,
2005.
(4) The Carried Forward Shares were registered on the Registration Statement
and the Registrant paid a total fee of $9,101. In accordance with the
principles set forth in Interpretation 89 under Section G, "Securities Act
Forms," of the Manual of Publicly Available Telephone Interpretations (July
1997) of the Division of Corporation Finance of the Securities and Exchange
Commission and Instruction E of the General Instructions to Form S-8, the
Registrant has carried forward the registration fee for the Carried Forward
Shares. The Registrant is contemporaneously filing Post-Effective Amendment
No. 2 to the Registration Statement to reflect the removal from
registration under the Registration Statement of the Carried Forward
Shares.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.
Omitted pursuant to the instructions and provisions of Form S-8.
ITEM 2. Registrant Information and Employee Plan Annual Information.
Omitted pursuant to the instructions and provisions of Form S-8.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by EPL with the Commission are hereby
incorporated by reference in this registration statement:
o our annual report on Form 10-K for the fiscal year ended December 31,
2004;
o our quarterly report on Form 10-Q for the fiscal quarter ended March
31, 2005;
o our current reports on Form 8-K filed on January 26, February 14,
March 14, and March 30, 2005 and our amended current report on Form
8-K/A filed on April 7, 2005;
o to the extent incorporated by reference into our annual report on Form
10-K, our proxy statement for our 2005 Annual Meeting of Stockholders
filed on April 4, 2005; and
o the description of our common stock contained in our registration
statement on Form S-3 filed on March 14, 2003, as amended by our
amended and restated bylaws filed as Exhibit 3.1 to our current report
on Form 8-K filed on April 3, 2003.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), 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 hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
General Corporation Law
EPL is incorporated under the laws of the State of Delaware. Section 145
("Section 145") of the General Corporation Law of the State of Delaware (the
"DGCL") as the same exists or may hereafter be amended, inter alia, provides
that a Delaware corporation may indemnify any persons who were, are or are
threatened to be made parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, provided such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify any persons who are, were or are threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation by reasons of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such
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action or suit, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests,
provided further that no indemnification is permitted without judicial approval
if the officer, director, employee or agent is adjudged to be liable to the
corporation. Where a present or former director or officer is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such director or
officer has actually and reasonably incurred. Section 145 further authorizes a
corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, arising out of his status
as such, whether or not the corporation would have the power to indemnify him
under Section 145.
Certificate of Incorporation and Bylaws
EPL's certificate of incorporation provides for the indemnification of
directors, officers, employees and agents to the fullest extent permitted by the
DGCL, as it now exists or may hereafter be amended. Article VIII of EPL's bylaws
requires indemnification to the full extent permitted under Delaware law as from
time to time in effect. Subject to any restrictions imposed by Delaware law,
EPL's bylaws provide an unconditional right to indemnification for all expense,
liability, and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes, or penalties and amounts paid in settlement) actually and reasonably
incurred or suffered by any person in connection with any actual or threatened
proceeding by reason of the fact that such person is or was serving as a
director or officer of EPL, or is or was serving at the request of EPL as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, or other enterprise, including service with respect to an
employee benefit plan. EPL's bylaws also provide that it may, by action of its
board of directors, provide indemnification to its agents with the same scope
and effect as the foregoing indemnification of directors and officers. All of
EPL's directors and officers will be covered by insurance policies maintained by
EPL against some liabilities for actions taken in their capacities as such,
including liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement are listed in the Exhibit Index
on page II-6 of this registration statement, which index is incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
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; (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, 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 20% 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 paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in
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periodic reports filed by the Registrant pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference
in the 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.
(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.
(4) 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 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing 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 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
Pursuant to the requirements of the Securities Act, 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 New Orleans, State of Louisiana, on May 12, 2005.
ENERGY PARTNERS, LTD.
By: /s/ Richard A. Bachmann
------------------------------------
Richard A. Bachmann
Chairman and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Richard A. Bachmann and John H. Peper, or either of
them, his attorneys-in-fact and agents, each with full power of substitution and
resubstitution for him in any and all capacities, to sign any or all amendments
or post-effective amendments to this registration statement, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Commission, granting unto each of such attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite and
necessary in connection with such matters and hereby ratifying and confirming
all that each of such attorneys-in-fact and agents or his or her substitute or
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
--------- ----- ----
/s/ Richard A. Bachmann Chairman and Chief Executive May 12, 2005
-------------------------------------- Officer (Principal Executive Officer)
Richard A. Bachmann
/s/ David R. Looney Executive Vice President and Chief Financial May 12, 2005
-------------------------------------- Officer (Principal Financial Officer)
David R. Looney
/s/ Dina M. Bracci
-------------------------------------- Controller (Principal Accounting Officer) May 12, 2005
Dina M. Bracci
/s/ John C. Bumgarner, Jr.
-------------------------------------- Director May 12, 2005
John C. Bumgarner, Jr.
/s/ Jerry D. Carlisle
-------------------------------------- Director May 12, 2005
Jerry D. Carlisle
/s/ Harold D. Carter
-------------------------------------- Director May 12, 2005
Harold D. Carter
/s/ Enoch L. Dawkins
-------------------------------------- Director May 12, 2005
Enoch L. Dawkins
/s/ Dr. Norman C. Francis
-------------------------------------- Director May 12, 2005
Dr. Norman C. Francis
/s/ Robert D. Gershen
-------------------------------------- Director May 12, 2005
Robert D. Gershen
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Signature Title Date
--------- ----- ----
/s/ William R. Herrin
-------------------------------------- Director May 12, 2005
William R. Herrin
/s/ William O. Hiltz
-------------------------------------- Director May 12, 2005
William O. Hiltz
/s/ John G. Phillips
-------------------------------------- Director May 12, 2005
John G. Phillips
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
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3.1 Restated Certificate of Incorporation of Energy Partners, Ltd. dated
as of November 16, 1999 (incorporated herein by reference to Amendment
No. 3 to the Form S-1 Registration Statement (No. 333-42876) of the
Registrant filed with the Commission on October 24, 2000).
3.2 Amendment to Restated Certificate of Incorporation of Energy Partners,
Ltd. dated as of September 15, 2000 (incorporated herein by reference
to Amendment No. 3 to the Form S-1 Registration Statement (No.
333-42876) of the Registrant filed with the Commission on October 24,
2000).
3.3 Amended and Restated Bylaws of Energy Partners, Ltd., dated as of
March 20, 2003 (incorporated by reference to Exhibit 3.1 to EPL's Form
8-K filed April 3, 2003 (File No. 333-42876)).
5.1 Opinion of Cahill Gordon & Reindel LLP regarding the legality of the
securities being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Cahill Gordon & Reindel LLP (included in Exhibit 5.1).
23.3 Consent of Netherland, Sewell & Associates, Inc.
23.4 Consent of Ryder Scott Company, L.P.
24.1 Powers of Attorney authorizing execution of Registration Statement on
Form S-8 on behalf of certain officers and directors of Energy
Partners, Ltd. (included on the signature page to this registration
statement).
99.1 Amended and Restated 2000 Stock Incentive Plan for Non-Employee
Directors adopted on May 12, 2005 (incorporated herein by reference to
Annex B to the Definitive Proxy Statement on Schedule 14A of the
Registrant filed with the Commission on April 4, 2005).
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EXHIBIT 5.1
[LETTERHEAD OF CAHILL GORDON & REINDEL LLP]
May 12, 2005
(212) 701-3000
Energy Partners, Ltd.
201 St. Charles Avenue, Suite 3400
New Orleans, Louisiana 70170
Re: Energy Partners, Ltd.
Ladies and Gentlemen:
We have acted as counsel to Energy Partners, Ltd., a Delaware corporation
(the "Company"), in connection with the Form S-8 Registration Statement (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission") registering under the Securities Act of 1933, as
amended (the "Act"), 250,000 shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), issuable under the Company's Amended and
Restated 2000 Stock Incentive Plan for Non-Employee Directors (the "Plan").
In rendering the opinion set forth herein, we have examined originals,
photocopies or conformed copies certified to our satisfaction of all such
corporate records, agreements, instruments and documents of the Company,
certificates of public officials and other certificates and opinions, and we
have made such other investigations, as we have deemed necessary in connection
with the opinions set forth herein. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to originals of all documents submitted to us as
photocopies or conformed copies.
Based upon the foregoing, we advise you that in our opinion, the shares of
Common Stock to be issued by the Company, when issued and paid for in the manner
contemplated by the Plan, will be duly and validly issued, fully paid and
non-assessable.
In rendering the opinion set forth above, we express no opinion as to the
laws of any jurisdiction other than the General Corporation law of the State of
Delaware, including the applicable provisions of the Delaware constitution and
the judicial decisions interpreting these laws, and the federal laws of the
United States of America.
We hereby consent to the filing of a copy of this opinion with the
Commission as an exhibit to the Registration Statement. In giving such consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ CAHILL GORDON & REINDEL LLP
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Energy Partners, Ltd.:
We consent to the use of our reports dated March 13, 2005, with respect to the
consolidated financial statements and the related financial statement schedule,
management's assesssment of the effectiveness of internal control over financial
reporting and the effectiveness of internal control over financial reporting
incorporated herein by reference. Our report for the year ended December 31,
2004, refers to a change in the method of accounting for asset retirement
obligations in 2003.
/s/ KPMG LLP
New Orleans, Louisiana
May 11, 2005
Exhibit 23.3
NETHERLAND, SEWELL & ASSOCIATES, INC. LOGO
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the filing of this Consent as an exhibit to the
Registration Statement on Form S-8 of Energy Partners, Ltd. to be filed with the
Securities and Exchange Commission on or about May 11, 2005. We also consent to
the reference to our firm and the use of our reports effective January 1, 2003,
January 1, 2004 and December 31, 2004 in the Registration Statement.
NETHERLAND, SEWELL & ASSOCIATES, INC.
By: /s/ Frederic D. Sewell
------------------------------------
Frederic D. Sewell
Chairman and Chief Executive Officer
Dallas, Texas
May 11, 2005
Exhibit 23.4
[Ryder Scott Company, L.P. Letterhead]
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the references to our firm and to the use of or
reference to our report effective December 31, 2004 in the Energy Partners, Ltd.
Registration Statement on Form S-8.
/s/ Ryder Scott Company, L.P.
-----------------------------
RYDER SCOTT COMPANY, L.P.
Houston, Texas
May 11, 2005