Securities Registration: Employee Benefit Plan (s-8)
04 Mayo 2022 - 4:02PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on May 4, 2022
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Gulfport
Energy Corporation
(Exact
name of registrant as specified in its charter)
Delaware |
|
86-3684669 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification No.) |
|
|
3001
Quail Springs Parkway
Oklahoma City, Oklahoma |
|
73134 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
Gulfport
Energy Corporation 2021 Stock Incentive Plan
(Full
title of the plan)
Patrick K. Craine
Chief Legal and Administrative Officer
Gulfport Energy Corporation
3001 Quail Springs Parkway
Oklahoma City, Oklahoma 73134
(405) 252-4600
(Name, address and telephone number, including area
code, of agent for service) |
|
Copy to:
Sean T. Wheeler, P.C.
Michael W. Rigdon
Kirkland & Ellis LLP
609 Main Street, Suite 4700
Houston, Texas 77002
(713) 836-3647 |
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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 |
þ |
Accelerated filer |
☐ |
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Non-accelerated filer |
☐ |
Smaller reporting company |
☐ |
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Emerging Growth Company |
☐ |
If
an emerging growth company, indicate by check mark whether 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 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY
NOTE
As
previously reported, on November 13, 2020, Gulfport Energy Corporation, a Delaware corporation (“Legacy Gulfport”) and certain
of Legacy Gulfport’s wholly owned direct subsidiaries (together with Legacy Gulfport, the “Debtors”) filed voluntary
petitions for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the Bankruptcy
Court for the Southern District of Texas (the “Bankruptcy Court”). The Debtors’ chapter 11 cases were jointly
administered under the caption In re Gulfport Energy Corporation, et al. (the “Chapter 11 Cases”). On April 15,
2021, the Debtors filed the Amended Joint Chapter 11 Plan of Reorganization of Gulfport Energy Corporation and Its Debtor Subsidiaries
(the “Plan”).
On
April 28, 2021, the Bankruptcy Court entered an order approving and confirming the Plan. In connection
with the Chapter 11 Cases and the Plan, on and prior to the Effective Date (as defined below), Legacy Gulfport effectuated certain restructuring
transactions, pursuant to which Gulfport Energy Corporation, a Delaware corporation (the “Company”) was formed and succeeded
Legacy Gulfport.
On
May 17, 2021 (the “Effective Date”), the Plan became effective in accordance with its terms and the Debtors emerged
from the Chapter 11 Cases. As a result, effective as of the Effective Date for the purposes of Rule 15d-5 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), the Company is the successor registrant to Legacy Gulfport. The Company is
thereby deemed subject to the periodic reporting requirements of the Exchange Act, and the rules and regulations promulgated thereunder,
and, in accordance therewith, files and will file reports and other information with the Securities
and Exchange Commission (the “SEC”).
Unless
otherwise noted or suggested by context, all financial information and data and accompanying financial statements and corresponding notes,
as of and prior to the Effective Date, as incorporated by reference herein, reflect the actual historical consolidated results of operations
and financial condition of Legacy Gulfport for the periods presented and do not give effect to the Plan or any of the transactions contemplated
thereby. Accordingly, such financial information may not be representative of the Company’s performance or financial condition
after the Effective Date. Except with respect to such historical financial information and data or as otherwise noted or suggested by
context, all other information contained herein relates to the Company following the Effective Date.
This
Registration Statement on Form S-8 (the “Registration Statement”) is being filed by the Company for the purpose of registering
2,828,123 shares of common stock, par value $0.0001, of the Company (the “Common Stock”) for issuance under the terms of
the 2021 Incentive Plan and includes shares of Common Stock that may again become available for delivery with respect to awards under
the 2021 Incentive Plan pursuant to the share counting, share recycling and other terms and conditions of the 2021 Incentive Plan. The
shares of Common Stock that are being registered pursuant to this Registration Statement have been reserved and authorized for issuance
from the Company’s authorized and unissued capital stock.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
Company will provide all participants in the 2021 Incentive Plan with the document(s) containing information required by Part I of Form
S-8, as specified in Rule 428(b)(1) promulgated by the SEC under the Securities Act of 1933 (the “Securities Act”). In accordance
with the note to Part I of Form S-8 and Rule 428 of the Securities Act, the Company is not filing such document(s) with the SEC, but
such documents (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof)
shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Any
reports filed by the Company with the SEC after the date of this Registration Statement and before the date that the offering of the
securities by means of this Registration Statement is terminated will automatically update and, where applicable, supersede any information
contained in or incorporated by reference into this Registration Statement. The Company incorporates by reference (excluding any information
furnished pursuant to Items 2.02 or 7.01 of any report on Form 8-K, including any related exhibits under Item 9.01) the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of 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. Each such document 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 document.
| 1. | The
Company’s Annual Report on Form 10-K
for the year ended December 31, 2021, filed on March 1, 2022; |
| 2. | The
description of the Company’s Common Shares contained in its Registration Statement on Form
8-A, dated May 17, 2021, and any amendment or report updating that description; |
| 3. | The
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed on May 4, 2022; and |
| 4. | The
Company's Definitive Proxy Statement on Schedule 14A, filed on May 2, 2022. |
Any
statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document
which also is, or is deemed to be, incorporated herein by reference 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.
None.
Item 6. Indemnification of Directors and Officers.
The
Company is a Delaware corporation subject to the applicable indemnification provisions of the General Corporation Law of the State of
Delaware. Section 145 of the General Corporation Law of the State of Delaware provides generally and in pertinent part that a Delaware
corporation may indemnify its directors, officers, employees and agents (or persons serving at the request of the Company as a director,
officer, employee or agent of another entity) against expenses, judgments, fines, and settlements actually and reasonably incurred by
them in connection with any civil, criminal, administrative, or investigative suit or action except actions by or in the right of the
corporation if, in connection with the matters in issue, 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 in connection with any criminal suit or proceeding, if in connection with the
matters in issue, they had no reasonable cause to believe their conduct was unlawful. Section 145 further provides that in connection
with the defense or settlement of any action by or in the right of the corporation, a Delaware corporation may indemnify its directors,
officers, employees and agents (or persons serving at the request of the Company as a director, officer, employee or agent of another
entity) against expenses actually and reasonably incurred by them if, in connection with the matters in issue, 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, except that no indemnification
may be made in respect of any claim, issue, or matter as to which such person has been adjudged liable to the corporation unless the
Delaware Court of Chancery or other court in which such action or suit is brought approves such indemnification. Section 145 further
permits a Delaware corporation to grant its directors and officers additional rights of indemnification through bylaw provisions and
otherwise, and or purchase indemnity insurance on behalf of its directors and officers.
Article
VII of the Company’s Amended and Restated Certificate of Incorporation (as amended, the “Certificate of Incorporation”)
provides, in general, that the Company will indemnify its directors, officers, employees and agents (or persons serving at the request
of the Company as a director, officer, employee or agent of another entity) to the full extent of Delaware law.
Article
VIII of the Company’s Amended and Restated Bylaws (the “Bylaws”) provides that the Company will indemnify any of its
officers or directors (including those persons serving as an officer or director of another entity at the Company’s request) who
is party to a suit or other proceeding by reason of his or her position as an officer or director against reasonable expenses (including
reasonable attorneys’ fees), judgments, fines and amounts paid in settlement (other than judgments, fines and amounts paid in settlement
in action brought by or on behalf of the Company to procure a judgment in its favor) actually and reasonably incurred by such person
or such person’s heirs, executors or administrators in connection with such action, suit or proceeding, including appeals. The
Company may only indemnify an officer or director who brought the suit or proceeding if its board of directors had previously authorized
such suit or proceeding. The rights to indemnification provided by its Bylaws include the right to advancement of expenses to the extent
such person undertakes to repay all amounts advanced if it shall ultimately be determined by final judicial decision from which there
is no further right to appeal that such person is not entitled to be indemnified for such expense.
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 enterprise,
against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or
not the corporation would otherwise have the power to indemnify him under Section 145. The Company maintains liability insurance policies
that indemnify its directors and officers and those of the Company’s subsidiaries against various liabilities, including certain
liabilities arising under the Securities Act and the Exchange Act that may be incurred by them in their capacity as such.
The indemnification rights
set forth above are not exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation or Bylaws, agreement, vote of shareholders or directors or otherwise.
In addition, pursuant to the
2021 Incentive Plan, certain directors and officers administering the 2021 Incentive Plan shall be indemnified by the Company for reasonable
expenses in connection with any action, suit or proceeding to which he or she is a party by reason of any action taken or failure to act
in connection with the performance of duties under the 2021 Incentive Plan, except in relation to matters as to which it is adjudged in
the action, suit or proceeding that the such person did not act in good faith and in a manner that the person reasonably believed to be
in the best interests of the Company, and in the case of a criminal proceeding, had no reason to believe that the conduct complained of
was lawful.
The foregoing is only a
general summary of certain aspects of Delaware law and the Certificate of Incorporation, Bylaws, indemnification agreements and the
2021 Incentive Plan dealing with indemnification of directors and officers and does not purport to be complete and is qualified in
its entirety by the full text of each of the foregoing.
Item
7. Exemption from Registration Claimed.
Not applicable
Item
8. Exhibits.
INDEX TO EXHIBITS
|
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Exhibit No. |
|
Exhibit Description |
|
|
4.1* |
|
1145 Indenture, dated as of May 17, 2021, by and among Gulfport Energy Corporation, UMB Bank, National Association, as trustee, and the guarantors party thereto (including the form of note attached thereto) (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on May 17, 2021). |
4.2* |
|
4(a)(2) Indenture, dated as of May 17, 2021, by and among Gulfport Energy Corporation, UMB Bank, National Association, as trustee, and the guarantors party thereto (including the form of note attached thereto) (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on May 17, 2021). |
5.1 |
|
Opinion of Kirkland & Ellis LLP, as to the legality of the securities being registered hereby. |
23.1 |
|
Consent of Grant Thornton LLP. |
23.2 |
|
Consent of Kirkland & Ellis LLP (included in Opinion filed as Exhibit 5.1 hereto). |
23.3 |
|
Consent of Netherland, Sewell & Associates, Inc. |
24.1 |
|
Power of Attorney (included on signature page). |
99.1* |
|
Gulfport Energy Corporation 2021 Stock Incentive Plan (incorporated by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K filed on May 17, 2021). |
107 |
|
Filing Fee Table. |
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) | 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; 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 reports filed with or furnished to the SEC 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) 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 Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the securities offered herein, 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 of 1933 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 SEC such indemnification is against
public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the city of Oklahoma City, State of Oklahoma on May 4, 2022.
|
Gulfport Energy Corporation |
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By: |
/s/ Patrick K. Craine |
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Patrick K. Craine |
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Chief Legal and Administrative Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints Patrick K. Craine and Timothy J. Cutt, and each of them, any of
whom may act without the joinder of the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her 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 to file the same, with all exhibits thereto, and all other documents in
connection therewith, with the SEC, 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 or she might or would do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
indicated on May 4, 2022.
Signature |
|
Title |
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/s/ Timothy J. Cutt |
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Chief Executive Officer and Chairman of the Board
(Principal Executive Officer) |
Timothy J. Cutt |
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/s/ William J. Buese
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
William J. Buese |
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/s/ David Wolf
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Director |
David Wolf |
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/s/ Guillermo Martinez
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Director |
Guillermo Martinez |
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/s/ Jason Martinez
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Director |
Jason Martinez |
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/s/ David Reganato
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Director |
David Reganato |
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