-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Df6hASu1aFwI5gaNiSy7EYWdpO0ondYzqpksDjobCnUbKUnswDaK04sOoPLtYsFO 5U8iCjZc0FuedumseEcTsA== 0000899243-97-001032.txt : 19970521 0000899243-97-001032.hdr.sgml : 19970521 ACCESSION NUMBER: 0000899243-97-001032 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970520 EFFECTIVENESS DATE: 19970520 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ZYDECO ENERGY INC CENTRAL INDEX KEY: 0000908246 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 760404904 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-27447 FILM NUMBER: 97611696 BUSINESS ADDRESS: STREET 1: 1710 TWO ALLEN CENTER STREET 2: 1200 SMITH STREET CITY: HOUSTON STATE: TX ZIP: 77002-4312 BUSINESS PHONE: 7136592222 MAIL ADDRESS: STREET 1: 1710 TWO ALLEN CENTER STREET 2: 1200 SMITH STREET CITY: HOUSTON STATE: TX ZIP: 77002-4312 FORMER COMPANY: FORMER CONFORMED NAME: TN ENERGY SERVICES ACQUISITION CORP DATE OF NAME CHANGE: 19930701 S-8 1 FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 19, 1997 REGISTRATION NO. 333-___________________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ZYDECO ENERGY, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 76-0404904 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 1710 TWO ALLEN CENTER 1200 SMITH STREET HOUSTON, TEXAS 77002 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) ZYDECO ENERGY, INC. 1996 NON EMPLOYEE DIRECTORS STOCK OPTION PLAN (FULL TITLE OF THE PLAN) SAM B. MYERS, JR. CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER 1710 TWO ALLEN CENTER 1200 SMITH STREET HOUSTON, TEXAS 77002 (NAME AND ADDRESS OF AGENT FOR SERVICE) (713) 659-2222 (TELEPHONE NUMBER, INCLUDING AREA CODE, OR AGENT FOR SERVICE) CALCULATION OF REGISTRATION FEE
==================================================================================================================== TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE PROPOSED PROPOSED MAXIMUM AMOUNT OF REGISTERED MAXIMUM AGGREGATE OFFERING REGISTRATION FEE /(1)/ OFFERING PRICE PRICE /(1)/ PER SHARE /(1)/ - -------------------------------------------------------------------------------------------------------------------- Shares of Common Stock, $0.001 par value per share.......... 45,000 Shares $ 5.375 $ 241,875 $ 73.29 ====================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act, based upon the average of the bid and asked price of the Registrant's Common Stock on the NASDAQ Small Cap issues market on May 14, 1997. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participating employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). These documents and the documents incorporated by reference hereto pursuant to Item 3 of Part II of this Registration Statement, 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 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 (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended. 1. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997; 2. The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996; and 3. The description of the Company's common stock, par value $.001 per share (the "Common Stock"), contained in the registration statement on Form 8-A, dated July 13, 1993. 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 each class of securities to be offered is registered under Section 12 of the Exchange Act. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. None. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company is governed by Section 145 of the General Corporation Law of the State of Delaware (the "DGCL"), which provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than action by or in the right of the corporation (a "derivative action")), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceedings, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation's charter, by-laws, disinterested director vote, stockholder vote, agreement or otherwise. Article VIII (A) of the Company's Certificate of Incorporation requires indemnification of directors and officers to the full extent permitted under the DGCL. Subject to any restrictions imposed by the DGCL, Article VIII of the II-1 Company's Bylaws provide a right to indemnification for all expense, liability and loss (including attorneys' fees) actually and reasonably incurred 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 the Company or that, being or having been such a director or officer of the Company, such person is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, if he acted in good faith and in a manner he reasonably believed to be in the best interest of the corporation. The Company's Bylaws also provide that the Company may, by action of its Board of Directors, provide indemnification to its employees or agents with the same scope and effect as the foregoing indemnification of directors and officers. Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation 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, except for liability for (i) any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) payments of unlawful dividends or unlawful repurchases or redemptions, or (iv) any transaction from which the director derived an improper personal benefit. Article VIII (B) of the Company's Certificate of Incorporation, as amended, provides that to the full extent that the DGCL permits the limitation or elimination of the liability of directors, a director of the Company shall not be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director. Any amendment or repeal of such Article 13 will not adversely affect any right or protection of a director of the Company for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. Section 8.6 of the Bylaws permits the Company to purchase insurance coverage for officers, directors, employees and agents for liability arising out of such status, whether or not the Company would have the power to indemnify them. ITEM 8. EXHIBITS. Exhibit Number Description ------ ----------- 5.1* Opinion of Andrews & Kurth L.L.P., as to the legality of the securities being registered. 23.1 Consent of Counsel (included in the opinion filed as Exhibit 5.1 to this Registration Statement). 23.2* Consent of Ryder Scott Company Petroleum Engineers. 23.3* Consent of Arthur Andersen LLP. 24.1 Power of Attorney (set forth on the signature page contained in Part II of this Registration Statement). 99.1* Zydeco Energy, Inc. 1996 Non Employee Directors Stock Option Plan. ---------- * Filed with this Registration Statement. 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: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; II-2 (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 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and 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 Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (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. (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) 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. II-3 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 Houston, State of Texas, on this 19th day of May, 1997. Zydeco Energy, Inc. By /s/ Sam B. Myers, Jr. --------------------- Sam B. Myers, Jr. Chairman of the Board and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of Zydeco Energy, Inc. (the "Company") hereby constitutes and appoints Sam B. Myers, Jr. and Edward R. Prince, 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, 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 acting alone, 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 such 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, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date - --------- ----- ---- /s/ Sam B. Myers, Jr. Chairman of the Board, May 19, 1997 - ----------------------------- Chief Executive Officer Sam B. Myers, Jr. (Principal Executive Officer) and Director /s/ Edward R. Prince, Jr. Vice-Chairman of the Board and May 19, 1997 - ----------------------------- Director Edward R. Prince, Jr. /s/ John O. Smith President, Chief Operating May 19, 1997 - ----------------------------- Officer and Director John O. Smith /s/ W. Kyle Willis Vice President, Treasurer, and May 19, 1997 - ----------------------------- Chief Financial Officer W. Kyle Willis (Chief Accounting Officer) /s/ Philip A. Tuttle Director May 19, 1997 - ----------------------------- Philip A. Tuttle /s/ Harry C. Johnson Director May 19, 1997 - ----------------------------- Harry C. Johnson /s/ Charles E. Bradley, Sr. Director May 19, 1997 - ----------------------------- Charles E. Bradley, Sr.
II-4 EX-5.1 2 OPINION OF ANDREWS & KURTH EXHIBIT 5.1 May 19, 1997 Board of Directors Zydeco Energy, Inc. 1710 Two Allen Center 1200 Smith Street Houston, Texas 77002 Gentlemen: We have acted as counsel to Zydeco Energy, Inc., a Delaware corporation (the "Company") in connection with the Company's Registration Statement on Form S-8 (the "Registration Statement"), relating to the registration under the Securities Act of 1933, as amended, of the issuance of 45,000 shares of Common Stock, par value $0.001 per share (the "Common Stock"), of the Company (the "Shares") issuable upon the exercise of options (the "Options") granted pursuant to the Zydeco Energy, Inc. 1996 Non Employee Directors Stock Option Plan (the "Plan"). As the basis for the opinions hereinafter expressed, we have examined such corporate records and documents, certificates of corporate and public officials and such other instruments as we have deemed necessary for the purposes of the opinions contained herein. As to all matters of fact material to such opinions, we have relied upon the representations of officers of the Company. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity with the original documents of all documents submitted to us as copies. Based upon the foregoing and having due regard for such legal considerations as we deem relevant, we are of the opinion that the Shares to be issued upon proper exercise of the Options have been duly authorized, and that the Shares, when issued upon proper exercise of the Options, will be validly issued, fully paid and nonassessable. We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Andrews & Kurth L.L.P. Andrews & Kurth L.L.P. II-5 EX-23.2 3 CONSENT OF RYDER SCOTT EXHIBIT 23.2 CONSENT OF INDEPENDENT PETROLEUM ENGINEERS We hereby consent to the incorporation by reference in this Form S-8 of Zydeco Energy, Inc. to the reference to our firm in the current report of Form 10-K for the year ended December 31, 1996, for Zydeco Energy, Inc. under the headings "Oil and Gas Reserves" and "Supplemental Information on Oil and Gas Producing Activities". /s/ RYDER SCOTT COMPANY PETROLEUM ENGINEERS RYDER SCOTT COMPANY PETROLEUM ENGINEERS Houston, Texas May 19, 1997 II-6 EX-23.3 4 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 28, 1997 (except with respect to the matter discussed in Note 10, as to which the date is March 14, 1997) included in Zydeco Energy, Inc.'s Form 10-K for the year ended December 31, 1996 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Houston, Texas May 19, 1997 EX-99.1 5 1996 NON EMPLOYEE DIRECTORS STOCK OPTION PLAN EXHIBIT 99.1 As Adopted by the Board of Directors On January 4, 1996 ZYDECO ENERGY, INC. 1996 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN Zydeco Energy, Inc., a Delaware corporation (the "Company"), hereby establishes this Zydeco Energy, Inc. 1996 Nonemployee Directors Stock Option Plan (the "Plan"), effective as of January 4, 1996, subject to stockholder approval. 1. Purpose. The purpose of the Plan is to promote the interests of the Company by encouraging the Nonemployee Directors of the Company to acquire or increase their equity interests in the Company and to devote their best efforts to the business of the Company, thereby advancing the interests of the Company and its stockholders. The Plan is also contemplated to enhance the ability of the Company to attract and retain the services of directors who are essential for the growth and profitability of the Company. 2. Definitions. As used in this Plan: (a) "Board" means the Board of Directors of the Company. (b) "Code" means the Internal Revenue Code of 1986, as in effect from time to time. (c) "Common Stock" means the Common Stock, $0.001 par value, of the Company or any security into which such Common Stock may be changed by reason of any transaction or event of the type described in Paragraph 6. (d) "Date of Grant" means the automatic date of grant as provided in Paragraph 4. (e) "Director Option" means the right to purchase a share of Common Stock upon exercise of an option granted pursuant to Paragraph 4. (f) "Market Value per Share" means, at any date: (i) If the shares of Common Stock are listed on a national securities exchange or the NASDAQ National Market System and such shares traded on such date, the last reported sales price per share on such exchange or NASDAQ National Market System on that date as reported in any newspaper of general circulation; (ii) If the shares of Common Stock are listed on a national securities exchange or the NASDAQ National Market System and such shares did not trade on such date, the last reported sales price per share on such exchange or NASDAQ National Market System on the next day prior thereto on which the shares traded as reported in any newspaper of general circulation; (iii) If the shares of Common Stock are quoted on NASDAQ (other than the NASDAQ National Market System) or any similar system of automated dissemination of quotations of securities prices in common use, the mean between the closing high bid and low asked quotations of the shares on such system on the relevant date as reported in any newspaper of general circulation; or (iv) If none of the above applies, a value determined by any fair and reasonable means prescribed by the Board. (g) "Nonemployee Director" means a director of the Company who is not also an employee of the Company or a Subsidiary. (h) "Option Price" means the purchase price per share payable on exercise of a Director Option. (i) "Rule 16b-3" means Rule 16b-3 of the Securities and Exchange Commission (or any successor rule to the same effect) as in effect from time to time. 3. Shares Available Under Plan. Subject to adjustments as provided in Paragraph 6, 45,000 is the maximum number of shares of Common Stock which may be issued with respect to Director Options under this Plan. Such shares may be shares of original issuance or treasury shares or a combination of the foregoing. Any shares of Common Stock which are subject to Director Options that are terminated unexercised, forfeited or surrendered or which expire or become permanently unexercisable for any reason will again be available for issuance under this Plan. 4. Director Options. (a) Each Nonemployee Director who serves in such capacity on January 4, 1996 shall automatically receive, on such date, Director Options for 15,000 shares of Common Stock. Each Nonemployee Director who is elected or appointed to the Board for the first time after that date shall automatically receive, on the date of his or her election or appointment, Director Options for the lesser of (i) 15,000 shares of Common Stock or (ii) the number of authorized shares of Common Stock then remaining available for issuance pursuant to Director Options under this Plan divided by the total number of Nonemployee Directors elected or appointed to the Board for the first time on such date. (b) All Director Options will be subject to all of the limitations contained in the following provisions: -2- (i) Director Options granted to each Nonemployee Director shall become exercisable (vested) as follows: (A) for an amount equal to one-third of the total number of shares subject to such Director Options on and after the later of (x) a date six months and one day from the Date of Grant and (y) April 1 of the calendar year following the year of the Date of Grant, (B) for an amount equal to an additional one-third of the total number of shares subject to such Director Options on and after April 1 of the second calendar year following the year of the Date of Grant, and (C) for an amount equal to the final one-third of the total number of shares subject to such Director Options on and after April 1 of the third calendar year following the year of the Date of Grant; provided that (1) in no event shall any Director Option be exercisable prior to the approval of this Plan by the Company's stockholders and (2) no Director Options shall vest after the date the Nonemployee Director ceases to serve as a director of the Company by resignation, removal, death or otherwise. (ii) The Option Price of each Director Option shall be the Market Value per Share on its Date of Grant. (iii) Director Options that are vested may be exercised in full at one time or in part from time to time by giving written notice to the Company, stating the number of shares of Common Stock with respect to which the Director Options are being exercised, accompanied by payment in full of the Option Price for such shares, which payment may be (i) in cash by check acceptable to the Company, (ii) by the transfer to the Company of shares of Common Stock already owned by the optionee having an aggregate Market Value per Share at the date of exercise equal to the aggregate Option Price, (iii) from the proceeds of a sale through a broker of some or all of the shares to which such exercise relates, or (iv) by a combination of such methods of payment. (iv) Each Director Option shall expire 10 years from the Date of Grant thereof, but shall be subject to earlier termination as follows: Director Options, to the extent exercisable as of the date a Nonemployee Director ceases to serve as a director of the Company by resignation, removal, death or otherwise, must be exercised within one year of such date unless such termination from the Board results from the Nonemployee Director's death, disability or retirement (which in the case of retirement shall occur after at least twenty four months of continuous service on the Board), in which case the Director Options may be exercised by the optionee or the optionee's legal representative or the person to whom the Nonemployee Director's rights shall pass by will or the laws of descent and distribution, as the case may be, within three years from the date of termination; provided however, that no such event shall extend the normal expiration date of such Director Options. (v) In the event that the number of shares of Common Stock available for grants under this Plan is insufficient to make all automatic grants provided for on the applicable date, then all Nonemployee Directors who are entitled to a grant on such date shall share ratably in the number of shares then available for grant under this Plan, and shall have no -3- right to receive a grant with respect to the deficiencies in the number of available shares and all future grants under this Plan shall terminate. 5. Transferability. Director Options will be exercisable during the optionee's lifetime only by the optionee or by the optionee's guardian or legal representative. 6. Adjustments. The Board may, but shall not be required to, make or provide for such adjustments in the maximum number of shares specified in Paragraph 3, in the numbers of shares of Common Stock covered by outstanding Director Options granted hereunder, in the Option Price applicable to any such Director Options and/or in the kind of shares covered thereby (including shares of another issuer), as the Board, in its sole discretion exercised in good faith, may determine is equitably required to prevent dilution or enlargement of the rights of optionees that otherwise would result from any stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, merger, consolidation, reorganization, partial or complete liquidation, issuance of rights or warrants to purchase securities or any other corporation transaction or event having an effect similar to any of the foregoing. Notwithstanding the foregoing, upon a Change in Control (as defined in the Company's 1996 Incentive Equity Plan), all Director Options that have been granted hereunder more than six months prior to the date of such event shall be canceled, effective on the date of such event, and, in full consideration of such cancellation, the Optionee shall be paid an amount in cash equal to the excess of (i) the value, as determined by the Board in its absolute discretion, of the property (including cash) received by the holder of a share of Common Stock as a result of such event less (ii) the exercise price of the Director Option; provided that this sentence shall not apply in the event of a Change in Control that results from stockholder approval of, or consummation of transactions contemplated under, an agreement or plan of merger, consolidation, or other business combination approved by a majority of the members of the Incumbent Board (as defined in clause (i) of the definition of "Change in Control" in the Company's 1996 Incentive Equity Plan, including such members treated as though members of the Incumbent Board under the proviso of such clause), which merger, consolidation, or other business combination is intended to qualify for accounting treatment as a "pooling of interests." 7. Fractional Shares. The Company will not be required to issue any fractional share of Common Stock pursuant to this Plan. The Board may provide for the elimination of fractions or the settlement of fractions in cash. 8. Withholding of Taxes. To the extent that the Company is required to withhold federal, state, local or foreign taxes in connection with any grant or payment made to an optionee or any other person under this Plan, or is requested by an optionee to withhold additional amounts with respect to such taxes, and the amounts available to the Company for such withholding are insufficient, it will be a condition to the receipt of such grant or payment that the optionee or such other person make arrangements satisfactory to the Company for the payment of balance of such taxes required or requested to be withheld. 9. Administration of the Plan. (a) This Plan will be administered by the Board. -4- (b) The interpretation and construction by the Board of any provision of this Plan or of any agreement, notification or document evidencing the grant of a Director Option and any determination by the Board pursuant to any provision of this Plan or of any such agreement, notification or documentation will be final and conclusive. No director will be liable for any such action or determination made in good faith or in the absence of gross negligence or willful misconduct on the part of such member. (c) The Board may not exercise any discretion with respect to this Paragraph 9 which would be inconsistent with the intent that this Plan meet the requirements of Rule 16b-3. 10. Amendments. This Plan may be amended from time to time by the Board but may not be amended by the Board without further approval by the stockholders of the Company if such amendment would result in this Plan no longer satisfying the requirements of Rule 16b-3; provided, however, that the provisions of Paragraph 4 may not be amended more than once every six months other than to comport with changes in the Code, the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder. 11. No Rights as Stockholder. No optionee shall have any rights as a stockholder with respect to shares covered by a Director Option until the date of issuance of a stock certificate or certificates for such shares of Common Stock. 12. Investment Representation. Unless the Company has filed a Registration Statement with the Securities and Exchange Commission for the issuance of the Shares issuable upon exercise of the Director Options, each option agreement shall contain an agreement that, upon demand by the Board for such a representation, the optionee (or any person acting under Paragraph 5) shall deliver to the Company at the time of any exercise of an option a written representation that the shares to be acquired upon such exercise are to be acquired for investment and not for resale or with a view to the distribution thereof or such other representation as the Board deems advisable. Upon such demand, delivery of such representation, prior to the delivery of any shares issued upon exercise of a Director Option and prior to the expiration of the option period, shall be a condition precedent to the right of the optionee or such other person to purchase any shares. 13. Compliance with Other Laws and Regulations. The Plan, the grant and exercise of Director Options thereunder, and the obligation of the Company to sell and deliver shares under such Director Options, shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any governmental or regulatory agency or national securities exchange as may be required. The Company shall not be required to issue or deliver any certificates for shares of Common Stock prior to the completion of any registration or qualification of such shares under any federal or state law, or any ruling or regulation of any government body or national securities exchange which the Company shall, in its sole discretion, determine to be necessary or advisable. 14. Term. This Plan shall be effective as of January 4, 1996, subject to approval by the Company's stockholders; provided, however, no Director Option shall be exercisable prior to the date of such stockholders' approval. In the event that this Plan is not approved by the stockholders -5- of the Company within twelve months after the date of its adoption by the Board, this Plan and all Director Options granted under this Plan shall be automatically null and void. Unless sooner terminated, this Plan shall terminate on December 31, 2005, and no further Director Options shall be granted, but all outstanding Director Options on such date shall remain effective in accordance with their terms and the terms of this Plan. ADOPTED by the Board of Directors of Zydeco Energy, Inc., a Delaware corporation, subject to stockholder approval, this 4th day of January, 1996. /s/ Sam B. Myers, Jr. ------------------------------ Sam B. Myers, Jr. Chairman of the Board -6- -----END PRIVACY-ENHANCED MESSAGE-----