As filed with the Securities and Exchange Commission on May 5, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KESTREL ENERGY, INC.
(Exact name of Registrant as specified in its charter)
Colorado 84-0772451
(State of Incorporation) (I.R.S. Employer ID No.)
999 18th Street, Suite 2490, Denver, Colorado 80202
(Address of Principal Offices)
Kestrel Energy, Inc.
Amended and Restated
Nonqualified Stock Option Plan
(Full Title of the Plan)
Timothy L. Hoops
President
Kestrel Energy, Inc.
999 18th Street, Suite 2490
Denver, Colorado 80202
(303) 295-1939
(Name, address and telephone number of Agent for Service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed Max.
Securities Amount Max. Off. Aggregate Amount
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
Common Stock
No Par Value 250,000 $1.00 $250,000 $73.75
(1) The price is set forth solely for the purpose of calculating the fee
and is based on the last price reported to the National Association of
Securities Dealers Automated Quotation System on April 28, 1998.
THE CONTENTS OF THE FORM S-8 REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION BY KESTREL ENERGY, INC. ON OCTOBER
3, 1995, FILE NO. 33-63171 AND ON FEBRUARY 4, 1998, FILE NO. 333-
266445 ARE HEREBY INCORPORATED BY REFERENCE.
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 Denver, State of Colorado, on
this 4th day of May, 1998.
KESTREL ENERGY, INC.
By:/s/Timothy L. Hoops
Timothy L. Hoops, 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 indicated.
Dated: May 4, 1998 By:/s/Timothy L. Hoops
Timothy L. Hoops, President,
Chief Executive Officer,
Principal Executive Officer
and Director
Dated: May 4, 1998 By:/s/Robert J. Pett
Robert J. Pett,
Chairman of the Board
Dated: May 4, 1998 By:/s/Mark a. Boatright
Mark A. Boatright,
Vice President-Finance,
Chief Financial Officer,
Principal Financial and
Accounting Officer
and Director
Dated: May 4, 1998 By:/s/Kenneth W. Nickerson
Kenneth W. Nickerson, Director
Dated: May 4, 1998 By:/s/John T. Kopcheff
John T. Kopcheff,
Vice President-International and
Director
Dated: By:
Mark A.E. Syropoulo, Director
EXHIBIT INDEX
No. Exhibit Method of filing
- -- ------- ----------------
5.1 Opinion of Gorsuch Kirgis LLP
regarding legality of shares
being issued. Filed herewith electronically
10.1 Kestrel Energy, Inc. Stock Option
Plan as amended April 16, 1998 Filed herewith electronically
23.1 Consent of KPMG Peat Marwick LLP Filed herewith electronically
GORSUCH KIRGIS LLP
Attorneys at Law
Tower I, Suite 1000 1515 Arapahoe Street Denver, Colorado 80202
Telephone (303) 376-5000 Facsimile (303) 376-5001
May 5, 1998
Kestrel Energy, Inc.
999 18th Street, Suite 2490
Denver, Colorado 80202
Re: Kestrel Energy, Inc.
Registration Statement on Form S-8
Gentlemen:
We are counsel to Kestrel Energy, Inc., a Colorado corporation (the
"Company"), in connection with the preparation of a registration statement
on Form S-8 to be filed with the Securities and Exchange Commission, (the
"Registration Statement"), relating to the proposed offering by the
Company of up to an additional 250,000 shares of Common Stock pursuant to
the Company's Stock Option Plan (the "Plan").
In this connection, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such corporate records,
certificates and written or oral statements of officers, legal counsel and
accountants of the Company and of public officials, and other documents
that we have considered necessary and appropriate, and, based thereon, we
advise you that in our opinion:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Colorado.
2. The shares offered by the Company, when issued pursuant to and
in accordance with the Plan will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
GORSUCH KIRGIS LLP
/s/Gorsuch Kirgis LLP
KESTREL ENERGY, INC.
STOCK OPTION PLAN
as amended April 16, 1998
SECTION 1. PURPOSE. The purpose of the Kestrel Energy, Inc. (the
"Company") Stock Option Plan (the "Plan") is to provide incentives for
selected persons to promote the financial success and progress of the
Company by granting such persons options to purchase shares of stock of
the Company ("Option").
SECTION 2. GENERAL PROVISIONS OF THE PLAN.
A. ADMINISTRATION. The Plan shall be administered by a committee
comprised of two or more directors designated by the Board of Directors of
the Company (the "Committee"). Notwithstanding the foregoing, if it would
be consistent with all applicable laws, including without limitation Rule
16b-3, 17 C.F.R. 240.16b-3 ("Rule 16b-3") promulgated under the Securities
Exchange Act of 1934 (the "Exchange Act"), then the Plan may be
administered by the Board of Directors, and, if so administered, all
subsequent references to the Committee shall refer to the Board of
Directors. Any action of the Committee shall be taken by majority vote or
by written consent of the Committee members.
B. AUTHORITY OF THE COMMITTEE. Subject to other provisions of the
Plan, and with a view towards furtherance of its purpose, the Committee
shall have sole authority and absolute discretion:
1. to construe and interpret the Plan;
2. to define the terms used herein;
3. to prescribe, amend and rescind rules and regulations
relating to the Plan;
4. to determine the persons to whom Options shall be granted
under the Plan;
5. to determine the time or times at which Options shall be
granted under the Plan;
6. to determine the number of shares subject to each Option,
the price and the duration of each Option;
7. to determine all of the other terms and conditions of
Options; and
8. to make all other determinations necessary or advisable for
the administration of the Plan and to do everything necessary or
appropriate to administer the Plan.
All decisions, determinations and interpretations made by the Committee
shall be binding and conclusive on all participants in the Plan and on
their legal representatives, heirs and beneficiaries.
C. NUMBER OF SHARES SUBJECT TO THE PLAN. The aggregate number of
shares of Common Stock subject to the Plan shall be 1,000,000,
subject to adjustment as provided in the Plan. If any Options granted
under the Plan expire or terminate for any reason before they have been
exercised in full, the unpurchased shares shall again be available for the
purposes of the Plan.
D. ELIGIBILITY AND PARTICIPATION. Subject to the terms of the Plan,
Options may be granted only to such employees, officers, directors,
consultants and advisors of the Company as the Committee shall select from
time to time in its sole discretion; provided, however, that consultants
and advisors shall be eligible only if they provide bona fide services
that are not rendered in connection with the offer or sale of securities
in a capital-raising transaction. A person may be granted more than one
Option under the Plan. Furthermore, notwithstanding any contrary
provision of the Plan, the Committee shall have no discretion to determine
the amount, price or timing of grants hereunder to Committee members,
except to the extent that the Committee's exercise of such authority is
consistent with all applicable laws, including, without limitation, Rule
16b-3. Grants to Committee members shall be made in
accordance with Section 6 hereof. Only employees of the Company shall be
eligible to receive Incentive Stock Options.
E. EFFECTIVE DATE OF PLAN. The Plan shall be submitted to the
shareholders of the Company for their approval and adoption at a meeting
to be held on or about December 16, 1992, or at any adjournment thereof.
The Plan shall be effective upon approval and adoption by the
shareholders. To the extent required by paragraph F, subsequent
amendments to the Plan shall be submitted to the Shareholders and such
amendments shall be effective upon such approval. All other amendments
shall be effective upon adoption by the Committee.
F. TERMINATION AND AMENDMENT OF PLAN. The Plan shall terminate ten
years after the date on which the shareholders approve the Plan, unless
sooner terminated by the Committee or the Board of Directors. No Options
shall be granted under the Plan after that date. Subject to the
limitation contained in paragraph E of this Section 2, the Committee or
the Board of Directors may at any time amend or revise the terms of the
Plan, including the form and substance of the Options to be used
hereunder, provided that no amendment or revision shall be made without
shareholders' approval which (i) increases the aggregate number of shares
that may be issued pursuant to Options granted under the Plan, except as
provided under paragraph G of this Section 2; or (ii) effects any change
to the Plan which is required to be approved by shareholders by law.
G. ADJUSTMENTS. If the outstanding shares of the Company's Common
Stock are increased, decreased, changed into or exchanged for a different
number or kind of shares or securities through merger, consolidation,
combination, exchange of shares, other reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock split, an
appropriate and proportionate adjustment shall be made in the aggregate
number and kind of shares reserved to the Plan. A corresponding
adjustment changing the number or kind of shares allocated to unexercised
Options or portions thereof, which shall have been granted prior to any
such change, shall likewise be made. Any such adjustment in outstanding
Options shall be made without change in the aggregate purchase price
applicable to the unexercised portion of the Option, but with a
corresponding adjustment in the price for each share covered by the
Option.
H. PRIOR OPTIONS AND OBLIGATIONS. No amendment, suspension or
termination of the Plan shall, without the consent of the person who has
received an Option, alter or impair any of that person's Options or rights
or obligations under any Option granted under the Plan prior to that
amendment, suspension or termination.
I. Notwithstanding the exercise of any Option granted hereunder, no
person shall have any of the rights or privileges of a shareholder of the
Company in respect of any shares of stock issuable upon the exercise of
his or her Option until certificates representing the shares have been
issued and delivered. No shares shall be required to be issued and
delivered upon exercise of any Option until there has been full compliance
with all of the requirements of law and of all regulatory agencies having
jurisdiction over the issuance and delivery of the securities.
J. During the term of the Plan, the Company will at all times
reserve and keep available for issuance a sufficient number of shares of
its Common Stock to satisfy the requirements of the Plan. In addition,
the Company will from time to time, as is necessary to accomplish the
purposes of the Plan, seek or obtain from any regulatory agency having
jurisdiction all requisite authority necessary to issue shares of Common
Stock hereunder. The inability of the Company to obtain from any
regulatory agency having jurisdiction the authority deemed by the
Company's counsel to be necessary to the lawful issuance of any shares of
its stock hereunder shall relieve the Company of any liability in respect
of the nonissuance of the stock as to which the requisite authority shall
not have been obtained.
K. The exercise of any Option is subject to the condition that if at
any time the Company shall determine, in its discretion, that the
satisfaction of withholding tax or other withholding liabilities under any
state or federal law is necessary or desirable as a condition of, or in
connection with, such exercise or the delivery or purchase of shares
pursuant thereto, then in such event, the exercise of the Option shall not
be effective unless such withholding shall have been effected or obtained
in a manner acceptable to the Company. The Committee may, in its
discretion, accept payment of such withholding taxes and liabilities from
an Optionee in the form of shares of the Company's Common Stock or other
property and may elect to deduct shares of Common Stock that would have
otherwise been delivered to an Optionee upon exercise to satisfy all or a
part of such taxes and liabilities.
L. FAIR MARKET VALUE. The "fair market value" of the Common Stock
on any given date means (a) if there is an established market for the
Company's Common Stock on a stock exchange, in an over-the-counter market
or otherwise, the mean between the highest and lowest reported sale prices
on the valuation date, or (b) if there were no such sales on the valuation
date, then in accordance with Treasury Regulation Section 20.2031-2 or
successor regulations. With respect to the grant of Options, unless
otherwise specified by the Committee at the time of grant, the valuation
date shall be the date of grant. The Committee may specify in any grant
of an Option that, instead of the date of grant, the valuation date shall
be a valuation period of up to ninety (90) days preceding the date of
grant, and fair market value for purposes of such grant shall be the
average over the valuation period of the mean of the highest and lowest
quoted selling prices on each date on which sales were made in the
valuation period, provided, however, that if the Committee fails to
specify a valuation period and there were no sales on the date of grant
then fair market value shall be determined as if the Committee had
specified a thirty (30) day valuation period for such determination,
unless there is no established market for the Company's Common Stock in
which case determination of fair market value shall be in accordance with
clause (b) above.
SECTION 3. OPTION TERMS AND CONDITIONS. Options granted under this
plan may be Incentive Stock Options (within the meaning of Section 422 of
the Internal Revenue Code (the "Code")) or nonqualified stock options.
The terms and conditions of Options granted under the Plan may differ from
one another as the Committee shall in its discretion determine so long as
all Options granted under the Plan satisfy the requirements of the Plan;
provided, however, that any Options designated as Incentive Stock Options
must comply with the provisions of the Plan specifically relating to
Incentive Stock Options and the Code.
SECTION 4. DURATION OF OPTIONS. Each Option granted hereunder shall
expire on the date fixed by the Committee, which shall be not later than
ten years after the date of grant; provided, however, that in the case of
Incentive Stock Options granted to a 10% shareholder, no option shall be
exercisable more than five years after the date of grant. In addition,
each Option shall be subject to early termination as provided in the Plan.
SECTION 5. OPTION PRICE. The option price for shares acquired
pursuant to the exercise of any Option, in whole or in part, shall be
determined by the Committee at the time of grant. Such option price may
be less than the fair market value of the Company's Common Stock on the
valuation date or valuation period, but in no event shall the option price
be less than fifty percent (50%) of the fair market value of the shares on
the valuation date or valuation period; provided, however that the
exercise price of Incentive Stock Options shall be fixed by the Committee
at not less than 100% of the fair market value of the Common Stock on the
valuation date or valuation period; provided further, that in the case of
Incentive Stock Options granted to a 10% shareholder, the exercise price
of the option shall not be less than 110% of the fair market value of the
Common Stock on the valuation date or valuation period.
SECTION 6. GRANTS TO COMMITTEE MEMBERS. Except as provided in
paragraph D of Section 2 hereof, the Committee shall have no discretion to
determine the amount, price or timing of grants of Options to Committee
members. Grants of Options to Committee members shall be made at the
discretion of the Board of Directors (with members of the Committee
abstaining) or in accordance with a formula established by the Board of
Directors; provided, however, that if the Board of Directors fails to make
a discretionary grant of Options or otherwise establish a formula by which
Options are granted to Committee members in any fiscal year of the
Company, then automatic grants of Options to Committee members
shall be made on the following September 30th. Such automatic grants to
Committee members shall be nonqualified Options for 5,000 shares per
Committee member and the exercise price shall be 100% of the fair market
value of the Company's Common Stock based on a valuation period
consisting of the thirty (30) day period ending September 29 of such
year.
SECTION 7. LIMITATIONS ON ACQUIRING VOTING STOCK. No Optionee who
is not an officer or director of the Company is eligible to receive or
exercise any Option which, if exercised, would result in that person
becoming the beneficial owner, as defined in the Exchange Act, of more
than 5% of the outstanding voting stock of the Company without the
unanimous consent of the Board of Directors.
SECTION 8. Each Option shall be exercisable in one or more
installments during its term, and the right to exercise may be cumulative,
as determined by the Committee. No Option may be exercised for a fraction
of a share of Common Stock. The option price shall be paid at the time of
exercise of the Option (i) in cash; (ii) by certified or cashier's check;
(iii) if permitted by the Committee, with shares of the Company's issued
and outstanding Common Stock; or (iv) by any other means permitted by the
Committee in its discretion after determination that such means are
consistent with all applicable laws and regulations. If any portion of
the purchase price at the time of exercise is paid in shares of the
Company's Common Stock, those shares shall be tendered at their fair
market value on the date of exercise.
The Committee may also permit an Optionee to effect a net
exercise of an option without tendering any shares of the Company's stock
as payment for the Option. In such an event, the Optionee will be deemed
to have paid for the exercise of the Option with shares of the Company's
stock and shall receive from the Company a number of shares equal to the
difference between the shares that would have been tendered and the number
of Options exercised. Members of the Committee may effect a net exercise
of their Options only with the approval of the Board of Directors.
The Committee may also cause the Company to enter into
arrangements with one or more licensed stock brokerage firms whereby
Optionees may exercise options without payment therefor but with
irrevocable orders to such brokerage firm to immediately sell the number
of shares necessary to pay the exercise price for the option and the
withholding taxes, if any, and then to transmit that portion of the
proceeds from such sales to the Company to pay such obligations.
SECTION 9, ACCELERATION OF OPTIONS. Notwithstanding the first
sentence of Section 8 hereof, if the Company or its shareholders enter
into an agreement to dispose of all or substantially all of the assets or
stock of the Company by means of a sale, merger or other reorganization,
liquidation, or otherwise, any Option granted pursuant to the Plan shall
become immediately exercisable with respect to the full number of shares
subject to that Option during the period commencing as of the date of the
agreement to dispose of all or substantially all of the assets or stock of
the Company and ending when the disposition of assets or stock
contemplated by that agreement is consummated or the Option is otherwise
terminated in accordance with its provisions or the provisions of the
Plan, whichever occurs first; provided that no Option shall be immediately
exercisable under this Section on account of any agreement of merger or
other reorganization where the shareholders of the Company immediately
before the consummation of the transaction will own at least 50% of the
total combined voting power of all classes of stock entitled to vote of
the surviving entity (whether the Company or some other entity)
immediately after the consummation of the transaction. In the event the
transaction contemplated by the agreement referred to in this Section 9 is
not consummated, but rather is terminated, cancelled or expires, the
Options granted pursuant to the Plan shall thereafter be treated as if
that agreement had never been entered into.
SECTION 10. WRITTEN NOTICE REQUIRED. Any Option granted pursuant to
the Plan shall be exercised when written notice of that exercise has been
given to the Company at its principal office by the person entitled to
exercise the Option and payment for the shares with respect to which the
Option is exercised has been received by the Company in accordance with
Section 8 hereof.
SECTION 11. LIMITATION ON EXERCISE OF INCENTIVE STOCK OPTIONS. To
the extent required by the Code, the aggregate fair market value
(determined at the time the Option is granted) of Common Stock for which
Incentive Stock Options are exercisable for the first time by a
participant during any calendar year (including all plans of the Company
and its subsidiaries) shall not exceed $100,000.
SECTION 12. COMPLIANCE WITH SECURITIES LAWS. Shares shall not be
issued with respect to any Option granted under the Plan unless the
exercise of that Option and the issuance and delivery of the shares
pursuant thereto shall comply with all relevant provisions of state and
federal law, including without limitation the Securities Act of 1933, as
amended, the rules and regulations promulgated thereunder and the
requirements of any stock exchange upon which the shares may then be
listed, which compliance shall be determined by counsel for the Company.
Further, each Optionee shall consent to the imposition of a legend on the
certificate representing the shares of Common Stock issued upon the
exercise of the Option restricting their transferability if and to the
extent required by law, the terms of the Option or the Plan.
SECTION 13. Each Optionee, if requested by the Committee, must agree
in writing as a condition of the granting of an Option, to remain in the
employ of the Company or to remain as a consultant or advisor to the
Company following the date of grant for a period or periods specified by
the Committee, which period(s) shall in no event exceed an aggregate of
four years. Nothing in the Plan or in any Option granted hereunder shall
confer upon any Optionee any right to continued employment or retainer by
the Company, or limit in any way the right of the Company to terminate or
alter the terms of that employment or consulting arrangement at any time.
SECTION 14. OPTION RIGHTS UPON TERMINATION OF EMPLOYMENT, DIRECTOR,
CONSULTANT OR ADVISOR STATUS. If an Optionee ceases to be employed by the
Company or ceases to serve as a director, consultant or advisor of the
Company for any reason other than death, his or her Option shall
immediately terminate; provided, however, that the Committee may, in its
discretion, allow the Option to remain exercisable (to the extent
exercisable on the date of termination of employment or retainer) for up
to one additional year for each year of service to the Company by the
Optionee (up to a maximum of five years after the date of termination),
unless either the Option or the Plan otherwise provides for earlier
termination; and provided further that, for purposes of determining when a
director no longer serves the Company, the period during which post-
retirement or similar benefits, if any, are paid to the director by the
Company shall be deemed to be continued service.
SECTION 15. OPTION RIGHTS UPON DEATH OF OPTIONEE. Except as
otherwise limited by the Committee at the time of the grant of an Option,
if an Optionee dies while he or she is an employee, director, consultant
or advisor of the Company, his or her Option shall remain exercisable for
one year after the date of death, unless either the Option or the Plan
otherwise provides for earlier termination. During such exercise period
after death, the Option may be fully exercised, to the extent that it
remained unexercised on the date of death, by the person or persons to
whom the Optionee's rights under the Option shall pass by will or by laws
of descent and distribution.
SECTION 16. WAIVER OF VESTING RESTRICTIONS IN THE EVENT OF
RETIREMENT. Notwithstanding any provision of the Plan, in the event an
Optionee retires as an employee or director of the Company, the Committee
shall have the discretion to waive any vesting restrictions on the
retiree's Options.
SECTION 17. OPTIONS NOT TRANSFERABLE. Options granted pursuant to
the Plan may not be sold, pledged, assigned or transferred in any manner
other than by will or the laws of descent and distribution and may be
exercised during the lifetime of an Optionee only by that Optionee or by
his or her guardian or legal representative.
SECTION 18. The Company shall furnish to each Optionee a copy of the
annual report sent to the Company's shareholders. Upon written request,
the Company shall furnish to each Optionee a copy of its most recent Form
10-K Annual Report and each quarterly report to shareholders issued since
the end of the Company's most recent fiscal year.
Adopted, as amended, by the shareholders of the Company on April
16, 1998.
Exhibit 23.1
------------
Independent Auditors' Consent
-----------------------------
The Board of Directors
Kestrel Energy, Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-8 of Kestrel Energy, Inc. of our report dated September 29,
1997, relating to the consolidated balance sheets of Kestrel Energy, Inc.
and subsidiaries as of June 30, 1997 and 1996, and the related
consolidated statements of operations, stockholders' equity, and cash
flows for each of the years in the three-year period ended June 30, 1997,
which report appears in the June 30, 1997 Annual Report on Form 10-K of
Kestrel Energy, Inc.
Our report on the consolidated financial statements refers to the adoption
of the provisions of Statement of Financial Accounting Standards No. 121,
ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS TO BE DISPOSED OF, in
the year ended June 30, 1997.
/s/KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Denver, Colorado
April 28, 1998
