As filed with the Securities and Exchange Commission on May 24, 2002
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ENERGY PARTNERS, LTD.
(Exact name of registrant as specified in its charter)
Delaware 72-1409562
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
201 St. Charles Avenue, Suite 3400, New Orleans, Louisiana 70170
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated 2000 Long Term Stock Incentive Plan
(Full title of the plans)
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Richard A. Bachmann
Energy Partners, Ltd.
201 St. Charles Avenue, Suite 3400
New Orleans, Louisiana 70170
(Name and address of agent for service)
(504) 569-1875
(Telephone number, including area code, of agent for service)
With copies to:
John H. Peper John Schuster, Esq.
Executive Vice President, Cahill Gordon & Reindel
General Counsel and Corporate Secretary 80 Pine Street
Energy Partners, Ltd. New York, New York 10005
201 St. Charles Avenue, Suite 3400 (212) 701-3000
New Orleans, Louisiana 70170
(504) 569-1875
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CALCULATION OF REGISTRATION FEE
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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
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Common stock, par value $0.01 per share, of
Energy Partners, Ltd.
Shares not previously registered 2,172,870 $7.795 $16,937,521.65(3) $1,558.25
Shares registered under a prior registration 2,627,130 N/A(4) N/A(4)
statement N/A(4)
Total 4,800,000 $7.795 $16,937,521.65 $1,558.25
==============================================================================================================
(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, 2,627,130
shares were previously registered for offer or sale under the Registrant's
2000 Long Term Stock Incentive Plan (the "Old Plan") 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 22,
2002.
(4) The Carried Forward Shares were registered on the Registration Statement
and the Registrant paid a total fee of $9,101, of which $7,531 related to
the Carried Forward Shares. 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. 1 to
the Registration Statement to reflect the removal from registration under
the Registration Statement of the Carried Forward Shares.
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:
(1) EPL's annual report on Form 10-K for the fiscal year ended December
31, 2001;
(2) EPL's quarterly report on Form 10-Q for the fiscal quarter ended March
31, 2002;
(3) EPL's current report on Form 8-K filed on January 22, 2002, as amended
on March 28, 2002; and
(4) the description of EPL's Common Stock contained in EPL's registration
statement on Form 8-A filed October 17, 2000.
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 action or suit, provided such person
acted in
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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
EPL's certificate of incorporation and bylaws provide for the
indemnification of directors, officers, employees and agents to the fullest
extent permitted by the DGCL. 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 set forth
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 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 securi-
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ties 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 24, 2002.
ENERGY PARTNERS, LTD.
By: /s/ Richard A. Bachmann
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Richard A. Bachmann
Chairman, President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Richard A. Bachmann and Suzanne V. Baer, 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, President and Chief Executive May 24, 2002
-------------------------------------- Officer (Principal Executive Officer)
Richard A. Bachmann
/s/ Suzanne V. Baer Chief Financial Officer (Principal May 24, 2002
---------------------------------------- Financial and Accounting Officer)
Suzanne V. Baer
/s/ Austin M. Beutner Director May 24, 2002
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Austin M. Beutner
/s/ John C. Bumgarner, Jr. Director May 24, 2002
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John C. Bumgarner, Jr.
/s/ Harold D. Carter Director May 24, 2002
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Harold D. Carter
/s/ Robert D. Gershen Director May 24, 2002
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Robert D. Gershen
/s/ Gary L. Hall Director May 24, 2002
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Gary L. Hall
/s/ William O. Hiltz Director May 24, 2002
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William O. Hiltz
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Signature Title Date
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/s/ Eamon M. Kelly Director May 24, 2002
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Eamon M. Kelly
/s/ John G. Phillips Director May 24, 2002
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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
September 12, 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).
5.1 Opinion of Cahill Gordon & Reindel regarding the legality of the
securities being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of KPMG LLP.
23.3 Consent of Cahill Gordon & Reindel (included in Exhibit 5.1).
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 Long Term Stock Incentive Plan adopted on
May 9, 2002 (incorporated herein by reference to Appendix A to the
Definitive Proxy Statement on Schedule 14A of the Registrant filed
with the Commission on March 27, 2002).
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EXHIBIT 5.1
[LETTERHEAD OF CAHILL GORDON & REINDEL]
May 24, 2002
(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"), 4,800,000 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 Long Term Stock Incentive Plan (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
------------------------------------------
CAHILL GORDON & REINDEL
EXHIBIT 23.1
Independent Auditors' Consent
The Board of Directors
Energy Partners, Ltd.:
We consent to the use of our report dated February 8, 2002, with respect to
the consolidated balance sheets of Energy Partners, Ltd. and subsidiaries as of
December 31, 2001 and 2000, and the related consolidated statements of
operations, changes in stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 2001, incorporated herein by
reference.
Our report refers to a change in the method of accounting for derivative
instruments and hedging activities.
KPMG LLP
New Orleans, Louisiana
May 22, 2002
EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors
Energy Partners, Ltd.:
We consent to the use of our report dated March 19, 2002, with respect to
the consolidated balance sheets of Hall-Houston Oil Company and subsidiaries as
of December 31, 2001 and 2000, and the related consolidated statements of
operations, stockholders' deficit, and cash flows for each of the years in the
three-year period ended December 31, 2001, incorporated herein by reference. Our
report refers to a change in the method of accounting for derivative
instruments.
KPMG LLP
Houston, Texas
May 22, 2002