As filed with the Securities and Exchange Commission on December 5, 1996
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ABRAXAS PETROLEUM CORPORATION
(Exact name of issuer as specified in its charter)
NEVADA 74-2584033
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 North Loop 1604 East, Suite 100, San Antonio, Texas 78232
(Address of principal executive offices) (Zip Code)
ABRAXAS PETROLEUM CORPORATION 401(K) PROFIT SHARING PLAN
(Full title of the plan)
Robert L. G. Watson
Chairman of the Board, President
and Chief Executive Officer
ABRAXAS PETROLEUM CORPORATION
500 North Loop 1604 East, Suite 100
San Antonio, Texas 78232
(210) 490-4788
(Name, address and telephone number,
including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE*
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
Common Stock, 100,000 $7.625** $762,500** $232.00
par value $.01 shares
per share
* Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement registers an indeterminate number of plan interests to be
offered pursuant to the employee benefit plan described herein.
**In accordance with Rule 457(h), computed upon the basis of the prices reported
on NASDAQ on December 4, 1996. This price is used solely for the purpose of
calculating the registration fee.
0090807.01
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (c) below are incorporated by
reference in the Registration Statement, and all documents subsequently filed by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 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 of the shares of Common Stock
have been sold or which deregisters any Common Stock then remaining unsold,
shall be deemed to be incorporated by reference in the Registration Statement
and to be a part hereof from the date of filing of such documents.
(a) The Registrant's latest annual report filed pursuant to Sections 13(a)
or 15(d) of the Exchange Act, that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed:
Annual Report on Form 10-K for the year ended December 31,1995
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (a) above:
1. Form 10-Q for the Quarter Ended March 31, 1996
Filed: May 15, 1996
2. Form 10-Q/A Number 1 for the Quarter ended March 31, 1996
Filed: June 13, 1996
3. Form 10-Q for the Quarter ended June 30, 1996
Filed: August 14, 1996
4. Form 10-Q for the Quarter ended September 30, 1996
Filed: November 14, 1996
5. Form 8-K
Filed: October 15, 1996
6. Form 8-K/A Number 1
Filed: October 29, 1996
7. Form 8-K
Filed: November 7, 1996
<PAGE>
8. Form 8-K
Filed: November 14, 1996
9. Form 8-K
Filed: November 27, 1996
(c) See "Description of Registrant's Securities to be Registered" in
Registration Statement No. 34-0-19118 on Form 8-A filed on March 28, 1991 and
incorporated herein by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation contain a provision that
eliminates the personal monetary liability of directors and officers to the
Registrant and its stockholders for a breach of fiduciary duties to the extent
currently allowed under the Nevada General Corporation Law (the "Nevada
Statute"). If a director or officer were to breach his fiduciary duties, neither
the Registrant nor its stockholders could recover monetary damages, and the only
course of action available to the Registrant's stockholders would be equitable
remedies, such as an action to enjoin or rescind a transaction involving a
breach of fiduciary duty. To the extent certain claims against directors or
officers are limited to equitable remedies, this provision of the Registrant's
Articles of Incorporation may reduce the likelihood of derivative litigation and
may discourage stockholders or management from initiating litigation against
directors or officers for breach of their duty of care. Additionally, equitable
remedies may not be effective in many situations. If a stockholder's only remedy
is to enjoin the completion of the Board of Director's action, this remedy would
be ineffective if the stockholder did not become aware of a transaction or event
until after it had been completed. In such a situation, it is possible that the
stockholders and the Registrant would have no effective remedy against the
directors or officers.
Liability for monetary damages has not been eliminated for acts or
omissions which involve intentional misconduct, fraud or a knowing violation of
law or payment of an improper dividend in violation of section 78.300 of the
Nevada Statute. The limitation of liability also does not eliminate or limit
director liability arising in connection with causes of action brought under the
Federal securities laws.
The Nevada Statute permits a corporation to indemnify certain persons,
including officers and directors, who are (or are threatened to be made) parties
against all expenses (including attorneys' fees) actually and reasonably
incurred by, or imposed upon, him in connection with the defense by reason of
his being or having been a director or officer if he acted in good faith and in
a manner which he 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 conduct was unlawful, except
where he has been adjudged by a court of competent jurisdiction (and after
exhaustion of all appeals) to be liable for gross negligence or willful
misconduct in the performance of his duty. The Bylaws of the Registrant provide
indemnification to the same extent allowed pursuant to the foregoing provisions
of the Nevada Statute.
Nevada corporations also are authorized to obtain insurance to protect
officers and directors from certain liabilities, including liabilities against
which the corporation cannot indemnify its directors and officers. The
Registrant currently has a directors' and officers' liability insurance policy
in effect providing $3.0 million in coverage and an additional $1.0 million in
coverage for certain employment related claims.
The Registrant has entered into indemnity agreements with each of its
directors and officers. These agreements provide for indemnification to the
extent permitted by the Nevada Statute.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Articles of Incorporation of Registrant. (Filed as Exhibit 3.1
to Form S-4 filed September 7, 1990, Registration Statement No. 33-36565).
3.2 Articles of Amendment to the Articles of Incorporation of the
Registrant, dated October 22, 1990. (Filed as Exhibit 3.3 to Amendment No. 1
to Form S-4 filed October 29, 1990, Registration Statement No. 33-36565).
3.3 Articles of Amendment to the Articles of Incorporation of the
Registrant, dated December 18, 1990. (Filed as Exhibit 3.4 to Amendment No.
3 to Form S-4 filed December 20, 1990, Registration Statement No. 33-36565).
3.4 Agreement and Plan of Merger, dated December 21, 1990 between Abraxas
Petroleum Corporation, a Texas corporation and Registrant filed with the Nevada
Secretary of State. (Filed as Exhibit 10.1 to Form 8-K filed with the Securities
and Exchange Commission on March 15, 1991).
3.5 Certificate of Designation of the Registrant's Series 1995-B
Preferred Stock. (Filed as Exhibit 3.6 to Form S-3 filed January 18, 1996,
Registration Statement No. 333-398).
3.6 Articles of Amendment to the Articles of Incorporation of the
Registrant, dated June 8, 1995. (Filed as Exhibit 3.4 to Form S-3 filed
January 18, 1996, Registration Statement No. 333-398).
3.7 Amended and Restated Bylaws of the Registrant. (Filed as Exhibit
3.5 to Form S-3 filed January 18, 1996, Registration Statement No. 333-398).
4.1 Rights Agreement dated as of December 6, 1994 between the Registrant
and FUNB. (Filed as Exhibit 4.1 to Registrant's Registration Statement on Form
8-A filed on December 6, 1994).
5.1 Opinion of Cox & Smith Incorporated as to the legality of the
Common Stock being registered. (Filed herewith).
23.1 Consent of Ernst & Young. (Filed herewith).
23.2 Consent of Cox & Smith Incorporated (found in Exhibit 5.1).
The Registrant undertakes that it will submit or has submitted the plan
and any amendments thereto to the Internal Revenue Service ("IRS") in a timely
manner and has made or will make all changes required by the IRS in order to
qualify the plan.
ITEM 9. UNDERTAKINGS.
The Registrant undertakes the following:
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, as amended (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;
(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) above 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 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.
The undersigned Registrant hereby undertakes 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 Securities and Exchange 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 counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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.
<PAGE>
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 San Antonio, Texas on December 5, 1996.
ABRAXAS PETROLEUM CORPORATION
By: /s/ Robert L. G. Watson
------------------------------------
Robert L.G. Watson,
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Name and Title Date
/s/ Robert L. G. Watson Chairman of the Board, December 5, 1996
- ----------------------- President, Chief Executive Officer
Robert L.G. Watson (Principal Executive Officer)
and Director
/s/ Chris E. Williford Executive Vice President, December 5, 1996
- ----------------------- Chief Financial Officer, Treasurer
Chris E. Williford (Principal Financial and Accounting
Officer) and Director
/s/ Richard M. Kleberg, III Director December 5, 1996
- ---------------------------
Richard M. Kleberg, III
/s/ James C. Phelps Director December 5, 1996
- ---------------------------
James C. Phelps
/s/ Paul A. Powell, Jr. Director December 5, 1996
- ------------------------
Paul A. Powell, Jr.
/s/ Richard M. Riggs Director December 5, 1996
- ------------------------
Richard M. Riggs
/s/ Franklin A. Burke Director December 5, 1996
- ------------------------
Franklin A. Burke
/s/ Robert D. Gershen Director December 5, 1996
- ------------------------
Robert D. Gershen
/s/Harold D. Carter Director December 5, 1996
- ------------------------
Harold D. Carter
The Plan.
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in San Antonio, Texas, on December 5, 1996.
ABRAXAS PETROLEUM CORPORATION
401(K) PROFIT SHARING PLAN
By: BANK ONE, TEXAS, N.A., TRUSTEE
By: /s/ Gilbert M. Araiza
---------------------------
Gilbert M. Araiza,
Vice President and
Client Service Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ---------- ------------------------------------------------------ ----
3.1 Articles of Incorporation of the Registrant.
(Filed as Exhibit 3.1 to Form S-4 filed September 7,
1990,Registration Statement No. 33-36565). *
3.2 Articles of Amendment to the Articles of Incorporation
of the Registrant, dated October 22, 1990, (Filed as
Exhibit 3.3 to Amendment No. 1 to Form S-4 filed
October 29, 1990, Registration Statement No. 33-36565). *
3.3 Articles of Amendment to the Articles of Incorporation
of the Registrant, dated December 18, 1990. (Filed
as Exhibit 3.4 to Amendment No. 3 to Form S-4 filed
December 20, 1990, Registration Statement No. 33-36565). *
3.4 Agreement and Plan of Merger, dated December 21,
1990 between Abraxas Petroleum Corporation,
a Texas corporation and Registrant filed with the
Nevada Secretary of State. (Filed as Exhibit 10.1
to Form 8-K filed with the Securities and Exchange
Commission on March 15, 1991). *
3.5 Certificate of Designation of the Registrant's *
Series 1995-B Preferred Stock. (Filed as Exhibit 3.6 to
Form S-3 filed January 18, 1996, Registration No. 333-398).
3.6 Articles of Amendment to the Articles of Incorporation
of the Registrant, dated June 8, 1995. (Filed as
Exhibit 3.4 to Form S-3 filed January 18, 1996,
Registration Statement No. 333-398) *
3.7 Amended and Restated Bylaws of the Registrant.
(Filed as Exhibit 3.5 to Form S-3 filed January 18,
1996, Registration Statement No. 333-398). *
4.1 Rights Agreement dated as of December 6, 1994
between the Registrant and FUNB. (Filed as Exhibit 4.1
to Registrant's Registration Statement on Form 8-A filed
on December 6, 1994). *
<PAGE>
5.1 Opinion of Cox & Smith Incorporated as to
the legality of the Common Stock being
registered (Filed herewith). 13
23.1 Consent of Ernst & Young (Filed herewith). 14
23.2 Consent of Cox & Smith Incorporated
(Found in Exhibit 5.1). *
* Previously filed.
<PAGE>
Exhibit 5.1
COX & SMITH
I N C O R P O R A T E D
ATTORNEYS COUNSELORS
112 East Pecan Street
Suite 1800
San Antonio, Texas 78205-1521
(210) 554-5500
Fax (210) 226-8395
Writer's Direct Number Writer's E-Mail Address
(210) 554-5255 [email protected]
December 5, 1996
Abraxas Petroleum Corporation
500 North Loop 1604 East, Suite 1800
San Antonio, Texas 78232
Re: Registration Statement on Form S-8 for the Abraxas
Petroleum Corporation 401(k) Profit Sharing Plan
Gentlemen:
We have acted as counsel to Abraxas Petroleum Corporation (the "Company")
in connection with the preparation for filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended. The Registration
Statement relates to an aggregate of 100,000 shares (the "Shares") of the common
stock, par value $.01 per share ("Common Stock"), of the Company. The Shares are
issuable pursuant to the Abraxas Petroleum Corporation401(k) Profit Sharing Plan
(the "Plan").
We have examined such corporate records, documents, instruments and
certificates of the Company as we have deemed necessary, relevant or appropriate
to enable us to render the opinion expressed herein. In such examination, we
have assumed the genuineness of all signatures and the authenticity of all
documents, instruments, records and certificates submitted to us as copies or
originals.
Based upon the foregoing, we are of the opinion that the Shares will have
been duly authorized and legally issued and will constitute fully paid and
nonassessable shares of Common Stock of the Company when issued in accordance
with the Plan.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, the rules or regulations of the Securities
and Exchange Commission promulgated thereunder or any similar provisions of any
state securities laws or regulations.
Very truly yours,
COX & SMITH INCORPORATED
By: /s/ Steven R. Jacobs
For the Firm
SRJ/pmgl/0013457.01
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) dated December 5, 1996 pertaining to the Abraxas Petroleum Corporation
401(k) Profit Sharing Plan of our report dated March 19, 1996 (except for
paragraph 2 of Note 16 as to which the date is March 21, 1996) with respect to
the consolidated financial statements of Abraxas Petroleum Corporation included
in its Annual Report (Form 10-K) for the year ended December 31, 1995, filed
with the Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
San Antonio, Texas
December 4, 1996
