Securities Registration: Employee Benefit Plan (s-8)

As filed with the Securities and Exchange Commission on December 27, 2019

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Chaparral Energy, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		73-1590941
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

701 Cedar Lake Boulevard

Oklahoma City, Oklahoma 73114

[phone]

(Address of Principal Executive Offices, including zip code and telephone number)

 

 

Inducement Equity Awards

(Full title of the plan)

Justin Byrne

Vice President and General Counsel

701 Cedar Lake Boulevard

Oklahoma City, Oklahoma 73114

[phone]

(Name, address and telephone number, including area code, of agent for service)

 

 

Copy to:

J. Mark Metts

Sidley Austin LLP

1000 Louisiana Street, Suite 5900

Houston, Texas 77002

[phone]

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		☐		Accelerated filer		☒
Non-accelerated filer						☐
Smaller reporting company						☐
Emerging growth company						☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered		Amount to be registered (1)		Proposed maximum offering price per share (3)		Proposed maximum aggregate offering price		Amount of registration fee
Class A common stock, par value $0.01 per share (“Common Stock”)		1,720,183 shares (2)		$1.034		$1,778,670		$230.87

(1)	Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), there are also being registered such additional shares of Common Stock as may become issuable as a result of stock splits, stock dividends or similar transactions.

(2)

Consists of shares of Common Stock issuable upon vesting, settlement or exercise of restricted stock granted to Charles Duginski on December 27, 2019 pursuant to the Employment Agreement by and among Chaparral Energy, L.L.C., Chaparral Energy, Inc. and Mr. Duginski, dated as of December 20, 2019 (the “Employment Agreement”). See “Explanatory Note” below.

(3)	Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) under the Securities Act based on the average of the high and low prices per share of the Common Stock on December 20, 2019 as reported on The New York Stock Exchange.

 

 

 

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EXPLANATORY NOTE

Pursuant to the Employment Agreement dated as of December 20, 2019 by and Charles Duginski, Chaparral Energy, Inc. (the “Registrant”) and Chaparral Energy, L.L.C., on December 27, 2019, the Registrant granted Mr. Duginski (i) 688,073 time-vesting shares of restricted Common Stock and (ii) 1,032,110 performance-vesting shares of restricted Common Stock (based on achieving 150% of the target grant of 688,073 time- and performance-vesting shares). Under the terms of the grant agreement for the performance-vesting shares, the number of shares of restricted Common Stock that will become vested (and not forfeited) will range from 0 to 1,032,110 (150% of the target grant). This Registration Statement registers the shares of Common Stock issuable upon such grants.

The foregoing grants were made as inducements material to Mr. Duginski’s acceptance of employment as the Chief Executive Officer and President of the Registrant, and were approved by Registrant’s Board of Directors (the “Board of Directors”) and the Compensation Committee (the “Compensation Committee”) of the Board of Directors. Such grants were made in reliance on New York Stock Exchange (“NYSE”) Listed Company Manual Rule 303A.08, which exempts certain inducement equity grants from the general requirement of the NYSE rules that equity-based compensation plans and arrangements be approved by stockholders. Even though such grants were made outside of the Registration’s 2019 Long-Term Incentive Plan (the “2019 LTIP”), except as expressly provided otherwise in the grant agreements for such grants, the grants will be governed in a manner consistent with the terms and conditions of the 2019 LTIP.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information specified in Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act, and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to Mr. Duginski, the sole participant in the plan covered by this Registration Statement, as required by Rule 428(b)(1).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The following documents filed with the Securities and Exchange Commission (the “Commission”) by the Registrant pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

 

(1)

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018.

 

(2)

All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2018.

 

(3)

The description of the Registrant’s Common Stock contained in the Company’s Registration Statement on Form 8-A, dated July 23, 2018.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of filing of such documents. Notwithstanding the foregoing, the Registrant is not incorporating any document or other information furnished and not filed in accordance with Commission rules.

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Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 which also is incorporated or deemed to be incorporated by reference herein modifies or 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.

 

Item 4.

Description of Securities.

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

Section 145(a) of the Delaware General Corporation Law (the “DGCL”) provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party 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 the corporation), because he or she 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, partnership, joint venture, trust, or other enterprise, against 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, if he or she acted in good faith and in a manner he or she 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 his or her conduct was unlawful.

Section 145(b) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person 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, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue, or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other adjudicating court shall deem proper.

Section 145(e) of the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized by Section 145 of the DGCL. Section 145(e) of the DGCL further provides that such expenses (including attorneys’ fees) incurred by former directors and officers or other employees or agents of the corporation may be so paid upon such terms and conditions as the corporation deems appropriate.

Section 145(g) of the DGCL provides, in general, that a corporation may 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, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145 of the DGCL.

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The Registrant’s second amended and restated bylaws provide that the Registrant will indemnify and hold harmless, to the fullest extent permitted by the DGCL, any person who was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that he or she is or was one of the Registrant’s directors or officers or is or was serving at the Registrant’s request as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. The Registrant’s second amended and restated certificate of incorporation further provide for the advancement of expenses to each of its officers and directors.

The Registrant’s third amended and restated certificate of incorporation provides that, to the fullest extent permitted by the DGCL, the Registrant’s directors shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. Under Section 102(b)(7) of the DGCL, the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty can be limited or eliminated except (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL (relating to unlawful payment of dividend or unlawful stock purchase or redemption); or (4) for any transaction from which the director derived an improper personal benefit.

The Registrant also maintains a general liability insurance policy which covers certain liabilities of directors and officers of the Registrant arising out of claims based on acts or omissions in their capacities as directors or officers, whether or not the Registrant would have the power to indemnify such person against such liability under the DGCL or the provisions of the Registrant’s third amended and restated certificate of incorporation.

The Registrant has also entered into indemnification agreements with each of the Registrant’s directors and executive officers. These agreements provide that the Registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and by the Registrant’s third amended and restated certificate of incorporation or second amended and restated bylaws.

The Plan provides that the committee of the Board that administers the plan and all members thereof are entitled to, in good faith, rely or act upon any report or other information furnished to them by any officer or employee of the Registrant or any of its subsidiaries, the Registrant’s legal counsel, independent auditors, consultants or any other agents assisting in the administration of the Plan or grant of awards thereunder. Members of the committee and any officer or employee of the Registrant or any of its subsidiaries acting at the direction or on behalf of the committee shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the fullest extent permitted by law, be indemnified and held harmless by the Registrant with respect to any such action or determination.

 

Item 7.

Exemption from Registration Claimed.

Not applicable.

 

Item 8.

Exhibits.

Unless otherwise indicated below as being incorporated by reference to another filing of the Company with the Commission, each of the following exhibits is filed herewith:

 

Exhibit No.		Description
4.1		Third Amended and Restated Certificate of Incorporation of Chaparral Energy, Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on March 27, 2017).

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4.2		Certificate of Retirement of 7,869,929 shares of Class  B Common Stock (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on December 19, 2018).
4.3		Second Amended and Restated Bylaws of Chaparral Energy, Inc., dated as of December 20,  2019 (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on December 27, 2019)
5.1		Opinion of Sidley Austin LLP regarding the validity of the securities being registered (filed herewith).
23.1		Consent of Grant Thornton LLP (filed herewith).
23.2		Consent of Cawley, Gillespie & Associates, Inc. (filed herewith).
23.3		Consent of Ryder Scott Company, L.P. (filed herewith).
23.4		Consent of Sidley Austin LLP (contained in Exhibit 5.1).
24.1		Powers of Attorney (included on signature pages of this Registration Statement).
99.1		Employment Agreement dated as of December 20,  2019 by and among Chaparral Energy, L.L.C., Chaparral Energy, Inc. and Charles Duginski (incorporated by reference to Exhibit 99.4 of the Company’s Current Report on Form 8-K filed on December  27, 2019)
99.2		Chaparral Energy, Inc. 2019 Long-Term Incentive Plan (incorporated by reference to Exhibit  10.1 of the Company’s Current Report on Form 8-K filed on July 2, 2019).
99.3		Restricted Stock Award Agreement, dated as of December  27, 2019, by and between Chaparral Energy, Inc., and Charles Duginski, together with related Restricted Stock Award Notice (3-Year Performance Vesting) (incorporated by reference to Exhibit  99.5 of the Company’s Current Report on Form 8-K filed on December 27, 2019).
99.4		Restricted Stock Award Agreement, dated as of December  27, 2019, by and between Chaparral Energy, Inc., and Charles Duginski, together with related Restricted Stock Award Notice (3-Year Time-Based Vesting) (incorporated by reference to Exhibit  99.6 of the Company’s Current Report on Form 8-K filed on December 27, 2019).

 

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;

(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 a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(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 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 Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

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(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.

(b)    The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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.

(c)    Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 of 1933, as amended, 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 Oklahoma City, State of Oklahoma, on December 27, 2019.

 

CHAPARRAL ENERGY, INC.
By:		/s/ Justin Byrne
		Justin Byrne
		Vice President, General Counsel and Secretary

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POWER OF ATTORNEY

Each person whose signature appears below appoints Charles Duginski, Scott Pittman and Justin Byrne, as his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any Registration Statement (including any amendment thereto) for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities indicated and on December 27, 2019.

 

Signature		Title
/s/ Charles Duginski		Chief Executive Officer, President and Director (Principal Executive Officer)
Charles Duginski
/s/ Scott Pittman		Chief Financial Officer and Senior Vice President (Principal Financial Officer and Principal Accounting Officer)
Scott Pittman
/s/ Douglas E. Brooks		Director
Douglas E. Brooks
/s/ Michael Kuharski		Director
Michael Kuharski
/s/ Samuel Langford		Director
Samuel Langford
/s/ Mark McFarland		Director
Mark McFarland
/s/ Kenneth W. Moore		Director
Kenneth W. Moore
/s/ Marcus Rowland		Director
Marcus Rowland
/s/ Gysle Shellum		Director
Gysle Shellum