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Filed with the Securities and Exchange Commission on August 4, 1999
Registration No. 333-82455
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KFX INC.
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(Exact name of registrant as specified in our charter)
Delaware 84-1079971
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1999 Broadway, Suite 3200, Denver, Colorado 80202, (303) 293-2992
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(Address, including ZIP code, and telephone number,
including area code, of registrant's principal executive offices)
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Theodore Venners
1999 Broadway, Suite 3200, Denver, Colorado 80202, (303) 293-2992
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(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
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Copies To:
Warren L. Troupe, Esq.
Melissa L. Mong, Esq.
Morrison & Foerster LLP
370 17th Street, Suite 5200, Denver, Colorado 80202
(303) 592-1500
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
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INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses to be borne by the Registrant,
other than underwriting discounts and commissions, in connection with the
issuance and distribution of the common stock hereunder.
Payable by the
Registrant
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SEC registration fee $ 1,735.33
Accounting fees and expenses...................... 2,500.00
Legal fees and expenses........................... 15,000.00
Printing costs.................................... 500.00
Blue Sky fees and expenses........................ 250.00
Miscellaneous..................................... 250.00
Total............................................. $ 20,235.33
The foregoing items, except for the SEC registration fee, are estimated.
Item 15. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law, or DGCL, and our
certificate of incorporation enables a corporation in our 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.
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We have implemented such indemnification provisions in our certificate of
incorporation, providing that officers and directors shall be entitled to be
indemnified by us 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 us.
The above discussion of our 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.
Under Section 145(g) of the DGCL, we maintain insurance on behalf of the
directors and officers serving at our request.
Item 16. Exhibits.
The following is a complete list of exhibits filed as part of the
Registration Statement. Exhibit numbers correspond to the numbers in the Exhibit
Table of Item 601 of Regulation S-K.
5.1 Opinion of Morrison & Foerster, LLP as to the legality of the common
stock being registered. (1)
10.1 Agreement between KFx Inc. and Thermo Ecotek Corporation, dated as of
June 12, 1999. (2)
23.1 Consent of Morrison & Foerster, LLP (see Exhibit 5.1). (1)
23.2 Consent of PricewaterhouseCoopers LLP. (1)
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(1) Previously filed.
(2) Filed herewith.
Item 17. Undertakings.
Insofar as indemnification by the Registrant 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
Registrants has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by a director, officer or controlling person in
connection with the securities being registered hereunder, 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.
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The 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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(b) 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) that, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value
of securities offered would not exceed what was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(c) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC by the
undersigned pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended, that are incorporated by reference in the registration
statement.
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
(4) if the Registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act need
not be furnished; provided, that the Registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant to
this paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on
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Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Securities Act or
Rule 3-19 of this chapter if such financial statements and information are
contained in periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 of Section 15(d) of the Exchange Act that are
incorporated by reference in the Form F-3.
(5) the undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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 the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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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-3 and has duly caused this Post-
Effective Amendment No. 1 to the Registration Statement to be signed on our
behalf by the undersigned, thereunto duly authorized, in the City of Denver,
State of Colorado, on the 3rd day of August, 1999.
KFx Inc.
(Registrant)
By: /s/ Theodore Venners
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Name: Theodore Venners
Title: Chairman of the Board of Directors, President
and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to the Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
Date: August 3, 1999 By: /s/ Theodore Venners
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Theodore Venners
Chairman of the Board of Directors,
President and Chief Executive Officer
(Principal Executive Officer)
Date: August 3, 1999 By: /s/ Seth L. Patterson
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Seth L. Patterson
Executive Vice President and
Chief Financial Officer
(Principal Financial and Accounting
Officer)
Date: August 3, 1999 By: ***
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Stanford M. Adelstein
Director
Date: August 3, 1999 By: ***
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Vincent N. Cook
Director
Date: August 3, 1999 By: ***
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Brian D. Holt
Director
Date: August 3, 1999 By: ***
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Jack C. Pester
Director
Date: August 3, 1999 By: ***
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Stanley G. Tate
Director
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*** By /s/ Theodore Venners
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Theodore Venners, as
attorney-in-fact
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EXHIBIT INDEX
<TABLE>
<CAPTION>
<C> <S>
5.1 Opinion of Morrison & Foerster, LLP as to the legality of the common stock
being registered. (1)
10.1 Agreement between KFx Inc. and Thermo Ecotek Corporation, dated as of June
12, 1999. (2)
23.1 Consent of Morrison & Foerster, LLP (see Exhibit 5.1). (1)
23.2 Consent of PricewaterhouseCoopers LLP. (1)
</TABLE>
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(1) Previously filed.
(2) Filed herewith.
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EXHIBIT 10.1
AGREEMENT
This Agreement is made this 12th day of June, 1999 by and between Thermo Ecotek
Corporation ("TCK") and KFx Inc. ("KFx").
WHEREAS, TCK and KFx entered into a Stock Purchase Agreement dated August 18,
1995 (the "Stock Purchase Agreement"); and
WHEREAS, KFx granted TCK a Stock Purchase Warrant dated August 18, 1995 to
purchase 7,750,000 shares of KFx common stock at $3.65 per share; and
WHEREAS, KFx granted TCK another Stock Purchase Warrant dated August 18, 1995 to
purchase sufficient shares of KFx to bring TCK's ownership of KFx up to 51% of
the common stock of KFx (hereafter, both Stock Purchase Warrants will be
referred to as the "Warrants"); and
WHEREAS, KFx desires to eliminate the $3.65 per share ceiling on the price of
its common stock; and
WHEREAS, KFx further desires to eliminate the ability of TCK to acquire a
controlling interest in KFx; and
WHEREAS, TCK desires to sell the common stock it owns in KFx subject to a
minimum market price as defined below.
NOW THEREFORE, in consideration of the premises and the mutual promises
contained herein, the parties hereto agree as follows:
1. Authorization to KFx to Find a Buyer: TCK hereby grants KFx authorization to
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find a buyer (the "Buyer") for all of the 4,250,000 shares of the common
stock of KFx owned by TCK (the "TCK Stock") on or before the Termination Date
(as defined in Section 3, below) for the consideration specified in Section
2.
2. Consideration: The price to be paid by Buyer for 100% of the TCK Stock will
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be $2.00 per share.
3. Termination of Authorization: KFx's authorization to find a Buyer for the
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TCK Stock shall expire 180 days from the effective date of this Agreement
(the "Termination Date").
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4. Extension of Termination Date:
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A. The Termination Date may be extended by written request by KFx to TCK for
up to 60 days, provided however, KFx can demonstrate to the satisfaction
of TCK that KFx has a reasonable chance of closing a sale of the TCK Stock
during the 60 day extension period, and provided further, the $2.00 per
share price shall be increased by 15% to $2.30 per share.
B. If the TCK Stock is not purchased by a Buyer within such 60-day extension
of the Termination Date, KFx's authorization to find a Buyer for the TCK
Stock shall automatically terminate, and KFx shall have no further
authorization to find a Buyer for the TCK Stock.
5. Registration Statement Covering the TCK Stock: KFx agrees to prepare and
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file as soon as possible following the execution of this Agreement a
registration statement (the "Registration Statement") covering the resale by
TCK of the TCK Stock pursuant to the terms of the Registration Rights
Agreement between KFx and TCK dated as of August 18, 1995.
6. Closing of the Sale of the TCK Stock: If KFx finds a Buyer willing to
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purchase the TCK Stock on the terms described herein, the Buyer and TCK will
negotiate in good faith agreements for the sale and transfer of the TCK
Stock. At the Closing of the purchase of the TCK Stock (the "Closing") TCK
will transfer the Warrants to KFx for cancellation. KFx shall have no right
to directly buy the TCK Stock for its own account or to sell the TCK Stock
directly to Buyer. Such agreements with Buyer shall contain certain
representations, warranties, terms, conditions, indemnities, and opinions for
such stock and warrant transactions. At the Closing, in consideration of
TCK's agreement to transfer the warrants to KFx for cancellation, KFx shall
provide TCK a general release with respect to KFx and KFx Fuel Partners, L.P.
TCK shall provide to KFx a similar general release. Each release shall also
include a statement that, upon the closing, each of the Stock Purchase
Agreement and Registration Rights Agreement (with the exception of section 6
thereof) dated August 18th, 1995 between KFx and TCK will terminate and no
longer be of any force or effect.
7. Opinion of Counsel: As a condition to the Closing, KFx shall provide TCK
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with an opinion of counsel, with respect to KFx, that this Agreement complies
with and/or does not violate any applicable laws, regulations or KFx
agreements.
8. Information About Buyers: KFx shall keep TCK informed on at least a weekly
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basis about its progress in finding a Buyer for the TCK Stock, and KFx shall
immediately inform TCK about any offer from any Buyer to purchase the TCK
Stock.
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9. Sale by TCK Without KFx Involvement: If, during the term of this Agreement,
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TCK should sell all the TCK Stock to a Buyer who was not found by KFx, TCK
shall nevertheless agree to terminate the Warrants at the Closing of the
sale of the TCK Stock and the Stock Purchase Agreement and Registration
Rights Agreement (except for Section 6 thereof) shall terminate and no
longer be of any force or effect.
10. Condition Precedent: It shall be a condition precedent to the effectiveness
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of this Agreement that the Board of Directors of both KFx and TCK approve
the execution and entering to of this Agreement by KFx and TCK,
respectively.
11. Representations of KFx:
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(a) Authority: KFx has all the requisite power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement, the performance of KFx
hereunder and the consummation by KFx of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action. This Agreement has been duly and validly executed and delivered
by KFx, enforceable against KFx in accordance with its terms.
(b) Noncontravention: Neither the execution or delivery of this Agreement
nor the performance by KFx of its obligations hereunder will directly or
indirectly (1) violate KFx's certificate of incorporation, bylaws or any
contract or agreement or other arrangement to which KFx is a party, or
(2) violate any statute, law, regulation or order applicable to KFx.
Without limiting the foregoing, KFx shall not make any offers of the TCK
Stock prior to the effective date of the Registration Statement.
(c) Third Party Consents: No consent, authorization, approval or order of
any third party, including any governmental agency, is required in
connection with KFx's entry into this Agreement or the consummation by
KFx of the transactions contemplated hereby.
12. Governing Law; Prior Agreements: This Agreement shall be governed by
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Massachusetts law, and shall supercede all written or oral agreements and
contracts with respect to the Stock Purchase Agreement or the Warrants.
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IN WITNESS WHEREOF, the parties execute this Agreement by their duly authorized
officers.
KFX INCORPORATED THERMO ECOTEK CORPORATION
/s/ Seth L. Patterson /s/ Brian D. Holt
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Seth L. Patterson Brian D. Holt
Executive Vice President President and Chief Executive Officer
and Chief Financial Officer
