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As filed with the Securities and Exchange Commission on August 9, 1996
Registration No. 333-----------
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement Under the Securities Act of 1933
KFX INC.
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(Exact name of registrant as specified in its charter)
Delaware 84-1079971
- ---------------------------------------- -----------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identifiaction No.)
1999 Broadway, Suite 3200
Denver, Colorado 80202
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(Address of principal executive offices) (Zip code)
1996 STOCK OPTION AND INCENTIVE PLAN OF KFX INC.
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(Full title of the plan)
Theodore Venners
1999 Broadway, Suite 3200
Denver, Colorado 80202 (303) 293-2992
- ---------------------------------------- -------------------------------
(Name and address of agent for service) (Telephone number, including
area code of agent for service)
Copies to:
---------
Warren L. Troupe, Esq.
Deborah A. Schultz, Esq.
Kutak Rock
717 17th Street, Suite 2900
Denver, Colorado 80202-3329
(303) 297-2400
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share/(1)/ Offering Price/(1)/ Fee
------------------- ------------- --------------- ------------------ -------------
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<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 1,500,000 $6.9375 $10,406,250 $3,588.36
==========================================================================================================
</TABLE>
/(1)/ Estimated solely for the purpose of calculating the registration fee
pursuant to the Rule 457(c).
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING IN ACCORDANCE
WITH RULE 462 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed with the Securities and
Exchange Commission by KFx Inc. (the "Registrant") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
(i) the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1995;
(ii) all other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the Annual Report on Form 10-KSB referred to in
(i) above;
(iii) the description of the Registrant's common stock contained in
the Registrant's Registration Statement on Form 10-SB filed with
the Securities and Exchange Commission on July 11, 1994.
Each document filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities offered herein have been sold
or that deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and
to be a part hereof from the respective date of filing such documents.
Any statement contained in a document 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 subsequently filed document that 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, except as
so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 102(b)7 of the Delaware General Corporation Law (the "DGCL")
enables a corporation in its original certificate of incorporation or an
amendment thereto to eliminate or limit the personal liability of a
director for violations of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions), or (iv)
for any transaction from which a director derived an improper personal
benefit.
Section 145 of the DGCL provides that directors and officers of
Delaware corporations may, under certain circumstances, be indemnified
against expenses (including attorneys' fees) and other liabilities actually
and reasonably incurred by them as a result of any suit brought against
them in their capacity as a director or officer, if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal
action or proceeding, if they had no reasonable cause to believe their
conduct was unlawful. Section 145 also provides that directors and
officers may also be indemnified against expenses (including attorneys'
fees) incurred by them in connection with a derivative suit if they acted
in good faith and in a manner they reasonably believed to be in or not
opposed to the best interests of the corporation, except that no
indemnification may be made without court approval if such person was
adjudged liable to the corporation.
The Company has implemented such indemnification provisions in its
Certificate of Incorporation which provides that officers and directors
shall be entitled to be indemnified by the Company to the fullest extent
permitted by law against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement incurred in connection with any
action, suit or proceeding by reason of the fact that he or she is or was
an officer or director of the Company.
The above discussion of the Company's Certificate of Incorporation and
Sections 102(b)(7) and 145 of the DGCL is not intended to be exhaustive and
is qualified in its entirety by such Certificate of Incorporation and
statutes.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this
Registration Statement. Exhibit numbers correspond to the numbers in the
Exhibit Table of Item 601 of Regulation S-K.
2
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Exhibit
Number Description
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4.01/(1)/ Form of Common Stock Certificate
5.01* Opinion and Consent of Kutak Rock
23.01 Consent of Counsel is contained in Opinion of Counsel filed as
Exhibit 5.01
23.02* Consent of Price Waterhouse LLP
24.01 Powers of Attorney, included at page S-2 of
the Registration Statement, are incorporated herein
by reference
- ---------------------------------
* Filed herewith.
(1) Filed as an Exhibit to the Registrant's Registration Statement on Form
10-SB, File No. 0-23634 and incorporated herein by reference.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a)(l) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 Act and
will be governed by the final adjudication of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 5th day of August, 1996.
KFX INC.
(Registrant)
By: /s/ Theodore Venners
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Theodore Venners, Chairman, President
and Chief Executive Officer
S-1
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Rudolph G. Swenson, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to this Registration Statement on Form S-8 and file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, to all intents and
purposes and as full as they might or could do in person, hereby ratifying and
confirming all that such attorney-in-fact and agent, or his substitute 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 dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Vincent N. Cook
- -------------------- Director August 5, 1996
Vincent N. Cook
/s/ Kurt B. Eckrich
- -------------------- Executive Vice President, Chief August 5, 1996
Kurt B. Eckrich Financial Officer and Director
/s/ Brian D. Holt
- -------------------- Director August 5, 1996
Brian D. Holt
/s/ Peter G. Martin
- -------------------- Director August 5, 1996
Peter G. Martin
/s/ Jack C. Pester
- -------------------- Director August 5, 1996
Jack C. Pester
/s/ Rudolph G. Swenson
- -------------------- Vice President, Secretary and August 5, 1996
Rudolph G. Swenson Treasurer
/s/ Theodore Venners
- -------------------- Chairman of the Board of Directors, August 5, 1996
Theodore Venners President and Chief Executive Officer
- -------------------- Director August __,1996
Starkey A. Wilson
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
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4.01/(1)/ Form of Common Stock Certificate
5.01* Opinion and Consent of Kutak Rock
23.01 Consent of Counsel is contained in Opinion of Counsel
filed as Exhibit 5.01
23.02* Consent of Price Waterhouse LLP
24.01 Powers of Attorney, included at page S-2 of
the Registration Statement, are incorporated herein
by reference
- ---------------------------------
* Filed herewith.
(1) Filed as an Exhibit to the Registrant's Registration Statement on Form
10-SB, File No. 0-23634 and incorporated herein by reference.
<PAGE>
Exhibit 5.01
August 5, 1996
Board of Directors
KFx Inc.
1999 Broadway, Suite 3200
Denver, Colorado 80202
Re: Registration Statement of Form S-8
Gentlemen:
We have acted as counsel to KFx Inc. (the "Company") in connection
with the filing of a registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to 1,500,000 shares of common stock, $.001
par value per share (the "Common Stock"), issuable pursuant to the 1996
Stock Option and Incentive Plan of the Company (the "Plan").
In connection with this opinion, we have made such investigations and
examined such records, including the Company's Certificate of
Incorporation, Bylaws and corporate minutes as we deemed necessary to the
performance of our services and to give this opinion. We have also
examined and are familiar with the originals or copies, certified or
otherwise identified to our satisfaction, of such other documents,
corporate records and other instruments as we have deemed necessary for the
preparation of this opinion. In expressing this opinion, we have relied,
as to any questions of fact upon which our opinion is predicated, upon
representations and certificates of the officers of the Company.
In giving this opinion we assumed:
(a) the genuineness of all signatures and the authenticity and
completeness of all documents submitted to us as originals;
(b) the conformity to originals and the authenticity of all
documents supplied to us as certified, photocopied, conformed or
facsimile copies and the authenticity and completeness of the
originals of any such documents; and
<PAGE>
(c) the proper, genuine and due execution and delivery of all documents by
all parties to them and that there has been no breach of the terms thereof.
Based upon the foregoing and subject to the qualifications set forth above,
and assuming (i) that the Registration Statement has become effective under the
Act and (ii) that the full amount of consideration is received for the Common
Stock, we are of the opinion that at the time the Common Stock, when issued in
accordance with the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
come 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
promulgated thereunder.
Very truly yours,
/s/ Kutak Rock
S-6
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Exhibit 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 29, 1996,
which appears on page F-2 of KFx Inc.'s Annual Report on Form 10-KSB for
the year ended December 31, 1995.
PRICE WATERHOUSE LLP
Denver, Colorado
August 5, 1996
