As filed with the Securities and Exchange Commission on March 9, 1999.
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.
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 200,000 $0.9375 $187,500.00 $52.13
(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 March 4, 1999.
THE CONTENTS OF THE FORM S-8 REGISTRATION STATEMENTS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION BY KESTREL ENERGY, INC. ON OCTOBER
3, 1995, FILE NO. 33-63171, ON FEBRUARY 4, 1998, FILE NO. 333-45587,
AND ON MAY 5 AND MAY 8, 1998, FILE NO. 333-51875, 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 8th day of March, 1999.
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: March 8, 1999 By:/s/Timothy L. Hoops
Timothy L. Hoops, President,
Chief Executive Officer,
Principal Executive Officer
and Director
Dated: -------, 1999 By:
Robert J. Pett,
Chairman of the Board
Dated: March 8, 1999 By:/s/ Mark A. Boatright
Mark A. Boatright,
Vice President-Finance,
Chief Financial Officer,
Principal Financial and
Accounting Officer
and Director
Dated: March 8, 1999 By:/s/Kenneth W. Nickerson
Kenneth W. Nickerson, Director
Dated: March 8, 1999 By:/s/John T. Kopcheff
John T. Kopcheff,
Vice President-International
and Director
Dated: March 8, 1999 By:/s/Mark A.E. Syropoulo
Mark A.E. Syropoulo, Director
EXHIBIT INDEX
No. Description Method of Filing
- --- ----------- ----------------
5 Opinion of Gorsuch Kirgis LLP
regarding legality of shares
being issued Filed herewith electronically
10 Kestrel Energy, Inc. Stock Option
Plan as amended February 24, 1999 Filed herewith electronically
23 Consent of KPMG 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
March 8, 1999
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 200,000 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 February 24, 1999
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
1,200,000, 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.
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
Kestrel Energy, Inc.:
We consent to the incorporation by reference in the registration statement
(No. 333- ) on Form S-8 of Kestrel Energy, Inc. of our report dated
September 18, 1998, relating to the consolidated balance sheets of Kestrel
Energy, Inc. and subsidiaries as of June 30, 1998 and 1997, 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,
1998, which report appears in the June 30, 1998 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 LLP
KPMG LLP
Denver, Colorado
March 8, 1999
