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As filed with the Securities and Exchange Commission on September 24, 1997
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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HUGOTON ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Kansas 48-1036256
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1900 Epic Center, 301 N. Main Street
Wichita, Kansas 67202
(Address of principal executive offices, including zip code)
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HUGOTON ENERGY CORPORATION
AMENDED AND RESTATED 1995 STOCK OPTION PLAN
JAY W. DECKER NONSTATUTORY STOCK OPTION AGREEMENT
(Full title of the plans)
W. Mark Womble
Executive Vice President and Chief Financial Officer
1900 Epic Center, 301 N. Main Street
Wichita, Kansas 67202
(Name and address of agent for service)
316-262-1522
(Telephone number, including area code, of agent for service)
Copies to:
Connie D. Tatum
HINKLE, EBERHART & ELKOURI, L.L.C.
2000 Epic Center, 301 N. Main Street
Wichita, Kansas 67202-4820
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering price per aggregate registration
to be registered registered (1) share offering price fee
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<S> <C> <C> <C> <C>
Common Stock, no par value (2) . . . 500,000 $ 11.50 (3) $5,750,000 (3) $ 1,742.42
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Common Stock, no par value (4) . . . 125,000 $ 8.34 (5) $1,042,500 (5) $ 315.91
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Total . . . . . . . . . . . 625,000 $ 2,058.33
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</TABLE>
(1) The number of shares of Common Stock registered herein is subject to
adjustment to prevent dilution resulting from reorganizations, stock
dividends, or similar transactions.
(2) Additional shares issuable under the Hugoton Energy Corporation
Amended and Restated 1995 Stock Option Plan.
(3) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) on the basis of the price of the same
class as determined in accordance with Rule 457(c), using the average
of the high and low sales prices reported on NASDAQ for the Common
Stock on September 19, 1997.
(4) Issuable under the Jay W. Decker Nonstatutory Stock Option Agreement
dated September 8, 1996.
(5) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(h)(1) based on the price at which the options may
be exercised.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by Hugoton Energy Corporation, a Kansas
corporation (the "Registrant"), are incorporated herein by reference and made a
part hereof:
(a) Annual Report on Form 10-K for the year ended December 31,
1996;
(b) Description of the Registrant's Common Stock, no par value per
share contained in the Registration Statement on Form 8-A,
filed pursuant to Section 12 of the Securities Exchange Act of
1934 as amended (the "Exchange Act") on January 4, 1994;
(c) Quarterly Report on Form 10-Q for the Quarter ended March 31,
1997; and
(d) Quarterly Report on Form 10-Q for the Quarter ended June 30,
1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, subsequent to the effective date of this
Registration Statement and prior to the filing of a post-effective amendment to
the Registration Statement indicating that all securities offered hereby have
been sold or deregistering all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in any
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 or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
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 17-6305 of the Kansas Statutes authorizes, inter alia, a
corporation generally to indemnify any person ("indemnitee") who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right
of the corporation) by reason of the fact that such person is or was a
director, officer or employee or agent of the corporation, or is or was serving
at the request of the corporation in a similar position with another
corporation or entity, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner 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. With
respect to actions or suits by or in the right of the corporation, however, an
indemnitee who acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation is generally limited
to attorneys' fees and other expenses, and no indemnification shall be made if
such person is adjudged liable to the corporation unless and only to the extent
that a court of competent jurisdiction determines that indemnification is
appropriate. Section 17-6305 further provides that any indemnification shall
be made by the corporation only as authorized in each specific case upon a
determination by the (i) stockholders, (ii) board of directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding or (iii) independent counsel if a quorum of disinterested
directors so directs, that indemnification of the indemnitee is proper because
he has met the applicable standard of conduct. Section 17-6305 provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
Section 2 of Article V of the Registrant's Bylaws, provides, in
substance, for indemnification of the Registrant's officers and directors to
the fullest extent permitted by Section 17-6305 of the Kansas Statutes.
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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 Registrant with the Commission, each of the following
exhibits is filed herewith:
<TABLE>
<S> <C> <C>
4.1 - Hugoton Energy Corporation Amended and Restated 1995 Stock Option Plan
4.2 - Form of Stock Option Agreement
4.3 - Jay W. Decker Nonstatutory Stock Option Agreement dated September 8, 1996
4.4 - Restated Articles of Incorporation of Hugoton Energy Corporation, as amended (Incorporated by
reference to Exhibit 3.1 to Registration Statement on Form S-1 (Registration No. 33-70924)
4.5 - Bylaws of Hugoton Energy Corporation, as amended (Incorporated by reference to Exhibit 3.2 to
Registration Statement on Form S-1 (Registration No. 33-70924)
5.1 - Opinion of Hinkle, Eberhart & Elkouri, L.L.C.
23.1 - Consent of Ernst & Young LLP
23.2 - Consent of Hinkle, Eberhart & Elkouri, L.L.C. (included in Exhibit 5.1)
24.1 - Power of Attorney (Included on the signature page to this Registration Statement)
</TABLE>
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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs 1(i) and 1(ii) do not apply if the
information required to be included in a post- effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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.
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B. The undersigned Registrant hereby undertakes that for the
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 (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 this 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 Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
The Registrant. 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 Wichita, State of Kansas, on
September 22, 1997.
HUGOTON ENERGY CORPORATION
By: /s/ W. Mark Womble
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W. Mark Womble, Chief Financial Officer
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Floyd C. Wilson and W. Mark Womble, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of 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 to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney- in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and agent
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 and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Floyd C. Wilson Chairman of the Board, September 22, 1997
- ------------------------------------------ President, Chief Executive
Floyd C. Wilson Officer and Director
/s/ W. Mark Womble Executive Vice President, September 22, 1997
- ---------------------------------------- Chief Financial Officer
W. Mark Womble (Principal Financial Officer)
and Director
/s/ Shane M. Bayless Controller September 22, 1997
- ------------------------------------------- (Principal Accounting
Shane M. Bayless Officer)
/s/ Alan J. Andreini Director September 22, 1997
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Alan J. Andreini
/s/ Jay W. Decker Director September 22, 1997
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Jay W. Decker
/s/ David S. Elkouri Director September 22, 1997
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David S. Elkouri
/s/ Jonathan S. Linker Director September 22, 1997
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Jonathan S. Linker
/s/ William E. Macaulay Director September 22, 1997
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William E. Macaulay
/s/ John T. McNabb, II Director September 22, 1997
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John T. McNabb, II
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
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<S> <C>
4.1 Hugoton Energy Corporation Amended and Restated 1995 Stock Option Plan
4.2 Form of Stock Option Agreement
4.3 Jay W. Decker Nonstatutory Stock Option Agreement dated September 8, 1996
4.4 Restated Articles of Incorporation of Hugoton Energy Corporation, as amended
(Incorporated by reference to Exhibit 3.1 to Registration Statement on Form S-1
(Registration No. 33-70924)
4.5 Bylaws of Hugoton Energy Corporation, as amended (Incorporated by reference
to Exhibit 3.2 to Registration Statement on Form S-1 (Registration No. 33-70924)
5.1 Opinion of Hinkle, Eberhart & Elkouri, L.L.C.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Hinkle, Eberhart & Elkouri, L.L.C. (included in Exhibit 5.1)
24.1 Power of Attorney (Included on the signature page to this Registration Statement)
</TABLE>
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EXHIBIT 4.1
HUGOTON ENERGY CORPORATION
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
On January 31, 1995, the HUGOTON ENERGY CORPORATION 1995 STOCK OPTION
PLAN (the "ORIGINAL PLAN") was adopted. Effective April 17, 1997, the Original
Plan is amended and restated in its entirety.
I. PURPOSE OF PLAN
The HUGOTON ENERGY CORPORATION 1995 STOCK OPTION PLAN (the "PLAN") is
intended to provide a means whereby certain employees of HUGOTON ENERGY
CORPORATION, a Kansas corporation (the "COMPANY"), and its subsidiaries may
develop a sense of proprietorship and personal involvement in the development
and financial success of the Company, and to encourage them to remain with and
devote their best efforts to the business of the Company, thereby advancing the
interests of the Company and its stockholders. Accordingly, the Company may
grant to certain employees ("OPTIONEES") the option ("OPTION") to purchase
shares of the common stock of the Company ("STOCK"), as hereinafter set forth.
Options granted under the Plan may be either incentive stock options, within
the meaning of section 422(b) of the Internal Revenue Code, as amended (the
"CODE"), ("INCENTIVE STOCK OPTIONS") or options which do not constitute
Incentive Stock Options.
II. ADMINISTRATION
The Plan shall be administered by the Compensation Committee (the
"COMMITTEE") of the Board of Directors of the Company (the "BOARD"), and the
Committee shall be (a) comprised solely of two or more outside directors
(within the meaning of section 162(m) of the Code and applicable interpretive
authority thereunder), and (b) constituted so as to permit the Plan to comply
with Rule 16b-3, as currently in effect or as hereinafter modified or amended
("RULE 16B-3"), promulgated under the Securities Exchange Act of 1934, as
amended (the "1934 ACT"). The Committee shall have sole authority to select
the Optionees from among those individuals eligible hereunder and to establish
the number of shares which may be issued under each Option; provided, however,
that, notwithstanding any provision in the Plan to the contrary, the maximum
number of shares that may be subject to Options granted under the Plan to an
individual Optionee during any calendar year may not exceed 250,000 (subject to
adjustment in the same manner as provided in Paragraph VIII hereof with respect
to shares of Stock subject to Options then outstanding). The limitation set
forth in the preceding sentence shall be applied in a manner which will permit
compensation generated under the Plan to constitute "performance-based"
compensation for purposes of section 162(m) of the Code, including, without
limitation, counting against such maximum number of shares, to the extent
required under section 162(m) of the Code and applicable interpretive authority
thereunder, any shares subject to Options that are cancelled or repriced. In
selecting the Optionees from among individuals eligible hereunder and in
establishing the number of shares that may be issued under each Option, the
Committee may take into account the nature of the services rendered by such
individuals, their present and potential contributions to the Company's success
and such other factors as the
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Committee in its discretion shall deem relevant. The Committee is authorized
to interpret the Plan and may from time to time adopt such rules and
regulations, consistent with the provisions of the Plan, as it may deem
advisable to carry out the Plan. All decisions made by the Committee in
selecting the Optionees, in establishing the number of shares which may be
issued under each Option and in construing the provisions of the Plan shall be
final.
II. OPTION AGREEMENTS
(a) Each Option shall be evidenced by a written agreement between the
Company and the Optionee ("OPTION AGREEMENT") which shall contain such terms
and conditions as may be approved by the Committee. The terms and conditions
of the respective Option Agreements need not be identical. Specifically, an
Option Agreement may provide for the surrender of the right to purchase shares
under the Option in return for a payment in cash or shares of Stock or a
combination of cash and shares of Stock equal in value to the excess of the
fair market value of the shares with respect to which the right to purchase is
surrendered over the option price therefor ("STOCK APPRECIATION RIGHTS"), on
such terms and conditions as the Committee in its sole discretion may
prescribe; provided, that with respect to Stock Appreciation Rights granted to
employees who are subject to Section 16 of the 1934 Act, except as provided in
Subparagraph VII(c) hereof, the Committee shall retain final authority (i) to
determine whether an Optionee shall be permitted, or (ii) to approve an
election by an Optionee, to receive cash in full or partial settlement of Stock
Appreciation Rights. Moreover, an Option Agreement may provide for the payment
of the option price, in whole or in part, by the delivery of a number of shares
of Stock (plus cash if necessary) having a fair market value equal to such
option price.
(b) For all purposes under the Plan, the fair market value of a share
of Stock on a particular date shall be equal to the mean of the reported high
and low sales price of the Stock (i) reported by the National Market System or
NASDAQ on that date or (ii) if the Stock is listed on a national stock
exchange, reported on the stock exchange composite tape on that date; or, in
either case, if no prices are reported on that date, on the last preceding date
on which such prices of the Stock are so reported. If the Stock is traded over
the counter at the time a determination of its fair market value is required to
made hereunder, its fair market value shall be deemed to be equal to the
average between the reported high and low or closing bid and asked prices of
Stock on the most recent date on which Stock was publicly traded. In the event
Stock is not publicly traded at the time a determination of its value is
required to be made hereunder, the determination of its fair market value shall
be made by the Committee in such manner as it deems appropriate.
(c) Each Option and all rights granted thereunder shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code or
Title I of the Employee Retirement Income Security Act of 1974, as amended, or
the rules thereunder, and shall be exercisable during the Optionee's lifetime
only by the Optionee or the Optionee's guardian or legal representative.
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IV. ELIGIBILITY OF OPTIONEE
Options may be granted only to individuals who are employees
(including officers and directors who are also employees) of the Company or any
parent or subsidiary corporation (as defined in section 424 of the Code) of the
Company at the time the Option is granted; provided, however, that members of
the Committee shall not be eligible to be granted Options. Options may be
granted to the same individual on more than one occasion. No Incentive Stock
Option shall be granted to an individual if, at the time the Option is granted,
such individual owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or its parent or subsidiary
corporation, within the meaning of section 422(b) of the Code, unless (i) at
the time such Option is granted the option price is 110% of the fair market
value of the Stock subject to the Option and (ii) such Option by its terms is
not exercisable after the expiration of five years from the date of grant. To
the extent that the aggregate fair market value (determined at the time the
respective Incentive Stock Option is granted) of stock with respect to which
Incentive Stock Options are exercisable for the first time by an individual
during any calendar year under all incentive stock option plans of the Company
and its parent and subsidiary corporations exceeds $100,000, such excess
Incentive Stock Options shall be treated as Options which do not constitute
Incentive Stock Options. The Committee shall determine, in accordance with
applicable provisions of the Code, Treasury Regulations and other
administrative pronouncements, which of an Optionee's Incentive Stock Options
will not constitute Incentive Stock Options because of such limitation and
shall notify the Optionee of such determination as soon as practicable after
such determination.
V. SHARES SUBJECT TO PLAN
The aggregate number of shares which may be issued under Options
granted under the Plan shall not exceed 1,000,000 shares of Stock. Such shares
may consist of authorized but unissued shares of Stock or previously issued
shares of Stock reacquired by the Company. Any of such shares which remain
unissued and which are not subject to outstanding Options at the termination of
the Plan shall cease to be subject to the Plan, but, until termination of the
Plan, the Company shall at all times make available a sufficient number of
shares to meet the requirements of the Plan. Should any Option hereunder
expire or terminate prior to its exercise in full, the shares theretofore
subject to such Option may again be subject to an Option granted under the Plan
to the extent permitted under Rule 16b-3. The aggregate number of shares which
may be issued under the Plan shall be subject to adjustment in the same manner
as provided in Paragraph VIII hereof with respect to shares of Stock subject to
Options then outstanding. Exercise of an Option in any manner, including an
exercise involving a Stock Appreciation Right, shall result in a decrease in
the number of shares of Stock which may thereafter be available, both for
purposes of the Plan and for sale to any one individual, by the number of
shares as to which the Option is exercised. Separate stock certificates shall
be issued by the Company for those shares acquired pursuant to the exercise of
any Option which does not constitute an Incentive Stock Option.
VI. OPTION PRICE
The purchase price of Stock issued under each Option shall be equal to
the fair market value of Stock subject to the Option on the date the Option is
granted; provided, however, that this
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limitation shall not apply to Incentive Stock Options for which a greater
purchase price is required pursuant to Paragraph IV hereof.
VII. TERM OF PLAN
The Plan shall be effective upon the date of its adoption by the
Board, provided the Plan is approved by the stockholders of the Company within
twelve months thereafter. Notwithstanding any provision in this Plan or in any
Option Agreement, no Option shall be exercisable prior to such stockholder
approval. Except with respect to Options then outstanding, if not sooner
terminated under the provisions of Paragraph IX, the Plan shall terminate upon
and no further Options shall be granted after March 31, 2007.
VIII. RECAPITALIZATION OR REORGANIZATION
(a) The existence of the Plan and the Options granted hereunder
shall not affect in any way the right or power of the Board or the stockholders
of the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or its
business, any merger or consolidation of the Company, any issue of debt or
equity securities, the dissolution or liquidation of the Company or any sale,
lease, exchange or other disposition of all or any part of its assets or
business or any other corporate act or proceeding.
(b) The shares with respect to which Options may be granted are
shares of Stock as presently constituted, but if, and whenever, prior to the
expiration of an Option theretofore granted, the Company shall effect a
subdivision or consolidation of shares of Stock or the payment of a stock
dividend on Stock without receipt of consideration by the Company, the number
of shares of Stock with respect to which such Option may thereafter be
exercised (i) in the event of an increase in the number of outstanding shares
shall be proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the number of
outstanding shares shall be proportionately reduced, and the purchase price per
share shall be proportionately increased.
(c) If the Company recapitalizes, reclassifies its capital stock, or
otherwise changes its capital structure (a "recapitalization"), the number and
class of shares of Stock covered by an Option theretofore granted shall be
adjusted so that such Option shall thereafter cover the number and class of
shares of stock and securities to which the Optionee would have been entitled
pursuant to the terms of the recapitalization if, immediately prior to the
recapitalization, the Optionee had been the holder of record of the number of
shares of Stock then covered by such Option. If (i) the Company shall not be
the surviving entity in any merger, consolidation or other reorganization (or
survives only as a subsidiary of an entity other than a previously wholly-owned
subsidiary of the Company), (ii) the Company sells, leases or exchanges
substantially all of its assets to any other person or entity (other than a
wholly- owned subsidiary of the Company), (iii) the Company is to be dissolved
and liquidated, (iv) any person or entity, including a "group" as contemplated
by Section 13(d)(3) of the 1934 Act acquires or gains ownership or control
(including, without limitation, power to vote) of more than 50% of the
outstanding shares of the Company's voting stock (based upon voting power),
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or (v) as a result of or in connection with a contested election of directors,
the persons who were directors of the Company before such election shall cease
to constitute a majority of the Board (each such event is referred to herein as
a "Corporate Change"), no later than (a) ten days after the approval by the
stockholders of the Company of such merger, consolidation, reorganization,
sale, lease or exchange of assets or dissolution or such election of directors
or (b) thirty days after a change of control of the type described in Clause
(iv), the Committee, acting in its sole discretion without the consent or
approval of any Optionee, shall act to effect one or more of the following
alternatives, which may vary among individual Optionees and which may vary
among Options held by any individual Optionee: (1) accelerate the time at
which Options then outstanding may be exercised so that such Options may be
exercised in full for a limited period of time on or before a specified date
(before or after such Corporate Change) fixed by the Committee, after which
specified date all unexercised Options and all rights of Optionees thereunder
shall terminate, (2) require that mandatory surrender to the Company by
selected Optionees of some or all of the outstanding Options held by such
Optionees (irrespective of whether such Options are then exercisable under the
provisions of the Plan) as of a date, before or after such Corporate Change,
specified by the Committee, in which event the Committee shall thereupon cancel
such Options and the Company shall pay to each Optionee an amount of cash per
share equal to the excess, if any, of the amount calculated in Subparagraph (d)
below (the "Change of Control Value") of the shares subject to such Option over
the exercise price(s) under such Options for such shares, (3) make such
adjustments to Options then outstanding as the Committee deems appropriate to
reflect such Corporate Change (provided, however, that the Committee may
determine in its sole discretion that no adjustment is necessary to Options
then outstanding) or (4) provide that the number and class of shares of Stock
covered by an Option theretofore granted shall be adjusted so that such Option
shall thereafter cover the number and class of shares of stock or other
securities or property (including, without limitation, cash) to which the
Optionee would have been entitled pursuant to the terms of the agreement of
merger, consolidation or sale of assets and dissolution if, immediately prior
to such merger, consolidation or sale of assets and dissolution the Optionee
had been the holder of record of the number of shares of Stock then covered by
such Option.
(d) For the purposes of clause (2) in Subparagraph (c) above, the
"CHANGE OF CONTROL VALUE" shall equal the amount determined in clause (i), (ii)
or (iii), whichever is applicable, as follows: (i) the per share price offered
to stockholders of the Company in any such merger, consolidation,
reorganization, sale of assets or dissolution transaction, (ii) the price per
share offered to stockholders of the Company in any tender offer or exchange
offer whereby a Corporate Change takes place, or (iii) if such Corporate Change
occurs other than pursuant to a tender or exchange offer, the fair market value
per share of the shares into which such Options being surrendered are
exercisable, as determined by the Committee as of the date determined by the
Committee to be the date of cancellation and surrender of such Options. In the
event that the consideration offered to stockholders of the Company in any
transaction described in this Subparagraph (d) or Subparagraph (c) above
consists of anything other than cash, the Committee shall determine the fair
cash equivalent of the portion of the consideration offered which is other than
cash.
(e) Any adjustment provided for in Subparagraph (b) or (c) above
shall be subject to any required stockholder action.
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(f) Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares
of stock of any class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, and in any case whether or not for fair value, shall not
affect, and no adjustment by reason therefor shall be made with respect to, the
number of shares of Stock subject to Options theretofore granted or the
purchase price per share.
IX. AMENDMENT OR TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with
respect to any shares for which Options have not theretofore been granted. The
Board shall have the right to alter or amend the Plan or any part thereof from
time to time; provided, that no change in any Option theretofore granted may be
made which would impair the rights of the Optionee without the consent of such
Optionee (unless such change is required in order to cause the benefits under
the Plan to qualify as performance-based compensation within the meaning of
section 162(m) of the Code and applicable interpretive authority thereunder);
and provided, further, that (i) the Board may not make any alteration or
amendment which would decrease any authority granted to the Committee hereunder
in contravention of Rule 16b-3 and (ii) the Board may not make any alteration
or amendment which would materially increase the benefits accruing to
participants under the Plan, increase the aggregate number of shares which may
be issued pursuant to the provisions of the Plan, change the class of
individuals eligible to receive Options under the Plan or extend the term of
the Plan, without the approval of the stockholders of the Company.
X. SECURITIES LAWS
(a) The Company shall not be obligated to issue any Stock pursuant
to any Option granted under the Plan at any time when the offering of the
shares covered by such Option have not been registered under the Securities Act
of 1933 and such other state and federal laws, rules or regulations as the
Company or the Committee deems applicable and, in the opinion of legal counsel
for the Company, there is no exemption from the registration requirements of
such laws, rules or regulations available for the offering and sale of such
shares.
(b) It is intended that the Plan and any grant of an Option made to
a person subject to Section 16 of the 1934 Act meet all of the requirements of
Rule 16b-3. If any provision of the Plan or any such Option would disqualify
the Plan or such Option under, or would otherwise not comply with, Rule 16b-3,
such provision or Option shall be construed or deemed amended to conform to
Rule 16b-3.
6
<PAGE> 1
EXHIBIT 4.2
INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT made this ___ day of ____________, 19___, between HUGOTON
ENERGY CORPORATION, a Kansas corporation (THE "COMPANY"), and ____________
___________________ ("EMPLOYEE").
To carry out the purposes of the HUGOTON ENERGY CORPORATION 1995
AMENDED AND RESTATED STOCK OPTION PLAN (the "PLAN"), by affording Employee the
opportunity to purchase shares of the common stock of the Company ("STOCK"),
and in consideration of the mutual agreements and other matters set forth
herein and in the Plan, the Company and Employee hereby agree as follows:
1. GRANT OR OPTION. The Company hereby irrevocably grants to
Employee the right and option ("OPTION") to purchase all or any part of an
aggregate of ________ shares of Stock, on the terms and conditions set forth
herein and in the Plan, which Plan is incorporated herein by reference as a
part of this Agreement. This Option is intended to constitute an incentive
stock option, within the meaning of section 422(b) of the Internal Revenue Code
of 1986, as amended (the "CODE").
2. PURCHASE PRICE. The purchase price of Stock purchased
pursuant to the exercise of this Option shall be $_______ per share, which has
been determined to be the fair market value of the Stock at the date of grant
of this Option. For all purposes of this Agreement, fair market value of Stock
shall be determined in accordance with the provisions of the Plan.
3. VESTING AND EXERCISE OF OPTION. The Option granted hereunder
shall vest as follows:
(a) the option to purchase 25% of the shares covered herein shall
vest immediately;
(b) the option to purchase 25% of the shares covered herein shall
vest twelve (12) months after the date of this Agreement;
(c) the option to purchase 25% of the shares covered herein shall
vest twenty-four (24) months after the date of this Agreement;
and
(d) the option to purchase 25% of the shares covered herein shall
vest thirty-six (36) months after the date of this Agreement.
Subject to the earlier expiration of this Option as herein provided,
this Option may be exercised by written notice to the Company at its principal
executive office addressed to the attention of its Chief Executive Officer.
The options granted hereunder must be exercised within thirty-six (36) months
after the date they become vested or they will expire worthless.
This Option is not transferable by Employee otherwise than by will or
the laws of descent and distribution, and may be exercised only by Employee
during Employee's lifetime. This option may be exercised only while Employee
remains an employee of the Company and will terminate and cease to be
exercisable upon Employee's termination of employment with the Company, except
that:
1
<PAGE> 2
(a) If Employee's employment with the Company terminates by
reason of disability (within the meaning of section 22(c)(3) of the
Code), this Option may be exercised in full (whether or not the option
is fully vested) by Employee (or Employee's estate or the person who
acquires this Option by will or the laws of descent and distribution
or otherwise by reason of the death of Employee) at any time during
the period of one year following such termination.
(b) If Employee dies while in the employ of the Company,
Employee's estate, or the person who acquires this Option by will or
the laws of descent and distribution or otherwise by reason of the
death of Employee, may exercise this Option in full (whether or not
the option is fully vested) at any time during the period of one year
following the date of Employee's death.
(c) If Employee's employment with the Company terminates for
any reason other than as described in (a) or (b) above, unless
Employee voluntarily terminates without the written consent of the
Company or is terminated for cause, this Option may be exercised by
Employee at any time during the period of three months following such
termination, or by Employee's estate (or the person who acquires this
Option by will or the laws of descent and distribution or otherwise by
reason of the death of Employee) during a period of one year following
Employee's death if Employee dies during such three-month period, but
in each case only to the extent the Option was vested and only as to
the number of shares Employee was entitled to purchase hereunder as of
the date Employee's employment so terminates. For purposes of this
Agreement, "CAUSE" shall mean Employee's gross negligence or willful
misconduct in performance of the duties of his employment, or
Employee's final conviction of a felony or of a misdemeanor involving
moral turpitude.
The purchase price of shares as to which this Option is exercised
shall be paid in full at the time of exercise (a) in cash (including check,
bank draft or money order payable to the order of the Company), or (b) by
delivering to the Company shares of Stock having a fair market value equal to
the purchase price, or (c) a combination of cash and Stock. No fraction of a
share of Stock shall be issued by the Company upon exercise of an Option or
accepted by the Company in payment of the exercise price thereof, rather,
Employee shall provide a cash payment for such amount as is necessary to effect
the issuance and acceptance of only whole shares of Stock. Unless and until a
certificate or certificates representing such shares shall have been issued by
the Company to Employee, Employee (or the person permitted to exercise this
Option in the event of Employee's death) shall not be or have any of the rights
or privileges of a stockholder of the Company with respect to shares acquirable
upon an exercise of this Option.
4. WITHHOLDING OF TAX. To the extent that the exercise of this
Option or the disposition of shares of Stock acquired by exercise of this
Option results in compensation income to Employee for federal or state income
tax purposes, Employee shall deliver to the Company at the time of such
exercise or disposition such amount of money or shares of Stock as the Company
may require to meet its obligation under applicable tax laws or regulations,
and, if Employee fails to do so, the Company is authorized to withhold from any
cash or Stock remuneration then or thereafter payable to Employee any tax
required to be withheld by reason of such resulting compensation income.
2
<PAGE> 3
Upon an exercise of this Option, the Company is further authorized in its
discretion to satisfy any such withholding requirement out of any cash or
shares of Stock distributable to Employee upon such exercise.
5. STATUS OF STOCK. The Company plans to file a Form S-8
Registration Statement under the Securities Act of 1933, as amended (the "ACT")
and include the shares of Stock acquirable upon exercise of this Option, and
the Company intends to keep such registration effective throughout the period
this Option is exercisable. In the absence of such effective registration
statement or an available exemption from registration under the Act, issuance
of shares of Stock acquirable upon exercise of this Option will be delayed
until a registration statement is made effective or an exemption from
registration under the Act is available. The Company intends to use its best
efforts to ensure that no such delay will occur. In the event exemption from
registration under the Act is available upon an exercise of this Option,
Employee (or the person permitted to exercise this Option in the event of
Employee's death or incapacity), if requested by the Company to do so, will
execute and deliver to the Company in writing an agreement containing such
provisions as the Company may require to assure compliance with applicable
securities laws.
Employee agrees that the shares of Stock which Employee may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable securities laws, whether
federal or state. Employee also agrees (i) that the certificates representing
the shares of Stock purchased under this Option may bear such legend or legends
as the Committee deems appropriate in order to assure compliance with
applicable securities laws, and (ii) that the Company may refuse to register
the transfer of the shares of Stock purchased under this Option on the stock
transfer records of the Company if such proposed transfer would in the opinion
of counsel satisfactory to the Company constitute a violation of any applicable
securities laws and (iii) that the Company may give related instructions to its
transfer agent, if any, to stop registration of the transfer of the shares of
Stock purchased under this Option.
6. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement,
Employee shall be considered to be in the employment of the Company as long as
Employee remains an employee of either the Company, a parent or subsidiary
corporation (as defined in section 424 of the Code) of the Company, or a
corporation or a parent or subsidiary of such corporation assuming or
substituting a new option for this Option. Any question as to whether and when
there has been a termination of such employment, and the cause of such
termination, shall be determined by the Committee and its determination shall
be final.
7. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of any successors to the Company and all persons lawfully
claiming under Employee.
8. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Kansas.
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed, by its officer thereunto duly authorized, and Employee has executed
this Agreement, all as of the day and year first above written.
HUGOTON ENERGY CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
--------------------------------------
--------------------
"EMPLOYEE"
4
<PAGE> 1
EXHIBIT 4.3
NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement (the "AGREEMENT") is made and
entered into on this 8th day of September, 1996, by and between HUGOTON ENERGY
CORPORATION, a Kansas corporation (THE "COMPANY"), and JAY W. DECKER
("EMPLOYEE").
In consideration of the mutual agreements and other matters set forth
herein, the Company and Employee hereby agree as follows:
1. GRANT OR OPTION. The Company hereby irrevocably grants to
Employee the right and option ("OPTION") to purchase all or any part of an
aggregate of 125,000 shares of common stock of the Company ("STOCK"), on the
terms and conditions set forth herein. Exercise of this Option is subject to,
and contingent upon, approval of this Agreement by the stockholders of the
Company on or before twelve (12) months after the date this Agreement is
approved by the Board of Directors of the Company (the "BOARD"). This Option
shall not be treated as an incentive stock option within the meaning of section
422(b) of the Internal Revenue Code of 1986, as amended (the "CODE").
2. PURCHASE PRICE. The purchase price of Stock purchased
pursuant to the exercise of this Option shall be $8.34 per share, which has
been determined to be the fair market value of the Stock at the date of grant
of this Option.
3. VESTING AND EXERCISE OF OPTION. The Option granted hereunder
shall vest as follows:
(a) the option to purchase 25% of the shares covered herein shall
vest immediately;
(b) the option to purchase 25% of the shares covered herein shall
vest twelve (12) months after the date of this Agreement;
(c) the option to purchase 25% of the shares covered herein shall
vest twenty-four (24) months after the date of this Agreement;
and
(d) the option to purchase 25% of the shares covered herein shall
vest thirty-six (36) months after the date of this Agreement.
Subject to the earlier expiration of this Option as herein provided,
this Option may be exercised by written notice to the Company at its principal
executive office addressed to the attention of its Chief Executive Officer.
The options granted hereunder must be exercised within thirty-six (36) months
after the date they become vested or they will expire worthless.
This Option is not transferable by Employee otherwise than by will or
the laws of descent and distribution, and may be exercised only by Employee
during Employee's lifetime. This option may be exercised only while Employee
remains an employee of the Company and will terminate and cease to be
exercisable upon Employee's termination of employment with the Company, except
that:
(a) If Employee's employment with the Company terminates by
reason of disability (within the meaning of section 22(c)(3) of the
Code), this Option may be exercised in full (whether or not the option
is fully vested) by Employee (or Employee's estate or the person who
acquires this Option by will or the laws of descent and distribution
or otherwise by
<PAGE> 2
reason of the death of Employee) at any time during the period of one
(1) year following such termination.
(b) If Employee dies while in the employ of the Company,
Employee's estate, or the person who acquires this Option by will or
the laws of descent and distribution or otherwise by reason of the
death of Employee, may exercise this Option in full (whether or not
the option is fully vested) at any time during the period of one (1)
year following the date of Employee's death.
(c) If Employee's employment with the Company terminates for
any reason other than as described in (a) or (b) above, unless
Employee voluntarily terminates without the written consent of the
Company or is terminated for cause, this Option may be exercised by
Employee at any time during the period of three (3) months following
such termination, or by Employee's estate (or the person who acquires
this Option by will or the laws of descent and distribution or
otherwise by reason of the death of Employee) during a period of one
(1) year following Employee's death if Employee dies during such
three-month period, but in each case only to the extent the Option was
vested and only as to the number of shares Employee was entitled to
purchase hereunder as of the date Employee's employment so terminates.
For purposes of this Agreement, "CAUSE" shall mean the inability of
Employee, through sickness or other incapacity, to perform his duties
under his employment agreement for a period of six (6) months,
dishonesty, theft, conviction of a crime involving moral turpitude or
commission of a material act of fraud against the Company or its
subsidiaries, failure of Employee to observe or perform his material
duties and obligations as an employee of the Company or a material
breach of his employment agreement.
The purchase price of shares as to which this Option is exercised
shall be paid in full at the time of exercise (a) in cash (including check,
bank draft or money order payable to the order of the Company), or (b) by
delivering to the Company shares of Stock having a fair market value equal to
the purchase price, or (c) a combination of cash and Stock. No fraction of a
share of Stock shall be issued by the Company upon exercise of an Option or
accepted by the Company in payment of the exercise price thereof, rather,
Employee shall provide a cash payment for such amount as is necessary to effect
the issuance and acceptance of only whole shares of Stock. Unless and until a
certificate or certificates representing such shares shall have been issued by
the Company to Employee, Employee (or the person permitted to exercise this
Option in the event of Employee's death) shall not be or have any of the rights
or privileges of a stockholder of the Company with respect to shares acquirable
upon an exercise of this Option.
4. RECAPITALIZATION.
(a) The shares with respect to which this Option is granted are
shares of Stock as presently constituted but if, and whenever, prior to the
expiration of this Option, the Company shall effect a subdivision or
consolidation of shares of Stock or the payment of a stock dividend on Stock
without receipt of consideration by the Company, the number of shares of Stock
with respect to which this Option may thereafter be exercised (a) in the event
of an increase in the number of outstanding shares shall be proportionately
increased, and the purchase price per share shall be proportionately reduced
and (b) in the event of a reduction in the number of outstanding shares shall
2
<PAGE> 3
be proportionately reduced and the purchase price per share shall be
proportionately increased. If the Company recapitalizes or otherwise changes
its capital structure, thereafter upon any exercise hereunder, Employee shall
be entitled to purchase, in lieu of the number of shares of Stock as to which
this Option shall be exercisable, the number and class of shares of stock and
securities to which he would have been entitled pursuant to the terms of the
recapitalization if, immediately prior to such recapitalization, he had been
the holder of record of the number of shares of Stock as to which this Option
is then exercisable.
The existence of the Options granted hereunder shall not affect in any
way the right or power of the Board or the stockholders of the Company to make
or authorize any adjustment, recapitalization, reorganization or other change
in the Company's capital structure or its business, any merger or consolidation
of the Company, any issue of debt or equity securities, the dissolution or
liquidation of the Company or any sale, lease, exchange or other disposition of
all or any part of its assets or business or any other corporate act or
proceeding.
(b) If the Company recapitalizes, reclassifies its capital stock, or
otherwise changes its capital structure (a "recapitalization"), the number and
class of shares of Stock covered by this Option shall be adjusted so that such
Option shall thereafter cover the number and class of shares of stock and
securities to which Employee would have been entitled pursuant to the terms of
the recapitalization if, immediately prior to the recapitalization, Employee
had been the holder of record of the number of shares of Stock then covered by
this Option. If (i) the Company shall not be the surviving entity in any
merger, consolidation or other reorganization (or survives only as a subsidiary
of an entity other than a previously wholly-owned subsidiary of the Company),
(ii) the Company sells, leases or exchanges substantially all of its assets to
any other person or entity (other than a wholly-owned subsidiary of the
Company), (iii) the Company is to be dissolved and liquidated, (iv) any person
or entity, including a "group" as contemplated by Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, acquires or gains ownership or
control (including, without limitation, power to vote) of more than 50% of the
outstanding shares of the Company's voting stock (based upon voting power), or
(v) as a result of or in connection with a contested election of directors, the
persons who were directors of the Company before such election shall cease to
constitute a majority of the Board (each such event is referred to herein as a
"Corporate Change"), no later than (a) ten (10) days after the approval by the
stockholders of the Company of such merger, consolidation, reorganization,
sale, lease or exchange of assets or dissolution or such election of directors
or (b) thirty (30) days after a change of control of the type described in
clause (iv) the Board, acting in its sole discretion without the consent or
approval of Employee, shall act to effect one or more of the following
alternatives, which may vary: (1) accelerate the time at which this Option
may be exercised so that this Option may be exercised in full for a limited
period of time on or before a specified date (before or after such Corporate
Change) fixed by the Board, after which specified date all unexercised portions
of this Option and all rights of Employee thereunder shall terminate, (2)
require that mandatory surrender to the Company by Employee of this Option
(irrespective of whether this Option is then exercisable) as of a date, before
or after such Corporate Change, specified by the Board, in which event the
Board shall thereupon cancel this Option and the Company shall pay to Employee
an amount of cash per share equal to the excess, if any, of the amount
calculated in subparagraph (d) below (the "Change of Control Value") of the
shares subject to this Option over the exercise price(s) under this Option for
such shares, (3) make such adjustments to this Option as the Board deems
appropriate to reflect such Corporate Change
3
<PAGE> 4
(provided, however, that the Board may determine in its sole discretion that no
adjustment is necessary to this Option) or (4) provide that the number and
class of shares of Stock covered by this Option shall be adjusted so that this
Option shall thereafter cover the number and class of shares of stock or other
securities or property (including, without limitation, cash) to which Employee
would have been entitled pursuant to the terms of the agreement of merger,
consolidation or sale of assets and dissolution if, immediately prior to such
merger, consolidation or sale of assets and dissolution Employee had been the
holder of record of the number of shares of Stock then covered by this Option.
(c) For the purposes of clause (2) in subparagraph (b) above, the
"Change of Control Value" shall equal the amount determined in clause (i), (ii)
or (iii), whichever is applicable, as follows: (i) the per share price offered
to stockholders of the Company in any such merger, consolidation,
reorganization, sale of assets or dissolution transaction, (ii) the price per
share offered to stockholders of the Company in any tender offer or exchange
offer whereby a Corporate Change takes place, or (iii) if such Corporate Change
occurs other than pursuant to a tender or exchange offer, the fair market value
per share of the shares into which this Option, if being surrendered are
exercisable, as determined by the Board as of the date determined by the Board
to be the date of cancellation and surrender of this Option. In the event that
the consideration offered to stockholders of the Company in any transaction
described in this subparagraph (c) or subparagraph (b) above consists of
anything other than cash, the Board shall determine the fair cash equivalent of
the portion of the consideration offered which is other than cash.
(d) Any adjustment provided for in subparagraph (a) or (b) above
shall be subject to any required stockholder action.
(e) Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares
of stock of any class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, and in any case whether or not for fair value, shall not
affect, and no adjustment by reason therefor shall be made with respect to, the
number of shares of Stock subject to this Option or the purchase price per
share.
5. WITHHOLDING OF TAX. To the extent that the exercise of this
Option or the disposition of shares of Stock acquired by exercise of this
Option results in compensation income to Employee for federal or state income
tax purposes, Employee shall deliver to the Company at the time of such
exercise or disposition such amount of money or shares of Stock as the Company
may require to meet its obligation under applicable tax laws or regulations,
and, if Employee fails to do so, the Company is authorized to withhold from any
cash or Stock remuneration then or thereafter payable to Employee any tax
required to be withheld by reason of such resulting compensation income. Upon
an exercise of this Option, the Company is further authorized in its discretion
to satisfy any such withholding requirement out of any cash or shares of Stock
distributable to Employee upon such exercise.
4
<PAGE> 5
6. STATUS OF STOCK. Following approval of this Agreement by the
stockholders of the Company, the Company intends to register for issuance under
the Securities Act of 1933, as amended (the "Act") the shares of Stock
acquirable upon exercise of this Option, and to keep such registration
effective throughout the period this Option is exercisable. In the absence of
such effective registration or an available exemption from registration under
the Act, issuance of shares of Stock acquirable upon exercise of this Option
will be delayed until registration of such shares is effective or an exemption
from registration under the Act is available. In the event exemption from
registration under the Act is available upon an exercise of this Option,
Employee (or the person permitted to exercise this Option in the event of
Employee's death or incapacity), if requested by the Company to do so, will
execute and deliver to the Company in writing an agreement containing such
provisions as the Company may require to assure compliance with applicable
securities laws.
Employee agrees that the shares of Stock which Employee may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable securities laws, whether
federal or state. Employee also agrees (i) that the certificates representing
the shares of Stock purchased under this Option may bear such legend or legends
as the Company deems appropriate in order to assure compliance with applicable
securities laws, and (ii) that the Company may refuse to register the transfer
of the shares of Stock purchased under this Option on the stock transfer
records of the Company if such proposed transfer would in the opinion of
counsel satisfactory to the Company constitute a violation of any applicable
securities laws and (iii) that the Company may give related instructions to its
transfer agent, if any, to stop registration of the transfer of the shares of
Stock purchased under this Option.
7. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement,
Employee shall be considered to be in the employment of the Company as long as
Employee remains an employee of either the Company, a parent or subsidiary
corporation (as defined in section 424 of the Code) of the Company, or a
corporation or a parent or subsidiary of such corporation assuming or
substituting a new option for this Option. Any question as to whether and when
there has been a termination of such employment, and the cause of such
termination, shall be determined by the Board and its determination shall be
final.
8. PLAN. This Agreement is intended to constitute an employee
benefit plan within the meaning of Rule 405 of the Act.
9. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of any successors to the Company and all persons lawfully
claiming under Employee.
10. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Kansas.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed, by its officer thereunto duly authorized, and Employee has executed
this Agreement, all as of the day and year first above written.
HUGOTON ENERGY CORPORATION
By:
------------------------------------
Name: W. Mark Womble
---------------------------------
Title: Executive Vice President and CFO
--------------------------------
--------------------------------------
JAY W. DECKER
"EMPLOYEE"
6
<PAGE> 1
EXHIBIT 5.1
September 22, 1997
Hugoton Energy Corporation
1900 Epic Center
301 N. Main Street
Wichita, Kansas 67202
Gentlemen:
We have acted as counsel for Hugoton Energy Corporation, a Kansas
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement") relating to a proposed
offering and sale of up to an aggregate of 625,000 shares (the "Shares") of
Common Stock, no par value ("Common Stock"), of the Company pursuant to the
Hugoton Energy Corporation Amended and Restated 1995 Stock Option Plan (the
"1995 Plan") and the Jay W. Decker Nonstatutory Stock Option Agreement dated
September 8, 1996 (the "Agreement").
In connection therewith, we have examined, among other things, the
Restated Articles of Incorporation, the Bylaws of the Company, as amended, and
the records of corporate proceedings that have occurred prior to the date
hereof with respect to such offering and the Registration Statement.
Based upon the foregoing, we are of the opinion that the Shares to be
issued pursuant to the 1995 Plan and the Agreement have been validly authorized
for issuance and, when the Registration Statement has become effective under
the Securities Act of 1933, as amended (the "Act"), and the Shares are issued
and paid for in accordance with the terms of the 1995 Plan and the Agreement,
the Shares so issued will be validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. By giving such consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Securities and Exchange Commission
issued thereunder. For purposes of this opinion, we assume that the securities
to be issued pursuant to the Registration Statement will be issued in
compliance with all applicable state securities or Blue Sky laws.
Very truly yours,
HINKLE, EBERHART & ELKOURI, L.L.C.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Hugoton Energy Corporation Amended and Restated
1995 Stock Option Plan and the Jay W. Decker Nonstatutory Stock Option
Agreement dated September 8, 1996 of our report dated February 7, 1997, with
respect to the consolidated financial statements and schedule of Hugoton Energy
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1996.
ERNST & YOUNG LLP
Wichita, Kansas
September 18, 1997
