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Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ENERGY SEARCH, INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
__________________
TENNESSEE 62-1423071
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
280 FORT SANDERS WEST BLVD., SUITE 200
KNOXVILLE, TENNESSEE 39722
(Address of Principal Executive Offices) (Zip Code)
ENERGY SEARCH, INCORPORATED
STOCK OPTION AND RESTRICTED STOCK PLAN OF 1998
(Full Title of the Plan)
RICHARD S. COOPER Copies to: PATRICK R. SUGHROUE
PRESIDENT PATRICK R. SUGHROUE, P.C.
ENERGY SEARCH, INCORPORATED 3777 SPARKS DRIVE, SUITE 130
280 FORT SANDERS WEST BLVD., SUITE 200
GRAND RAPIDS, MICHIGAN 49546
KNOXVILLE, TENNESSEE 37922
(Name and Address of Agent For Service)
(423) 531-6562
(Telephone Number, Including Area Code, of Agent For Service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title Of
Securities Proposed Maximum Proposed Maximum
To Be Amount To Be Offering Price Aggregate Offering Amount Of
Registered Registered Per Share <F1><F2> Price<F1><F2> Registration Fee
<S> <C> <C> <C> <C>
Common Stock, 300,000 shares<F3> $4.625 $1,387,500 $385.73
no par value
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<FN>
<F1> Estimated solely for the purpose of calculating the registration fee.
<F2> On June 8, 1999, the last price of the Common Stock of Energy Search,
Incorporated was $4.625 per share. The registration fee is computed in
accordance with Rule 457(h) and (c).
<F3> In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described above, plus an indeterminate number of additional shares as
may be required to be issued in the event of an adjustment as a result
of an increase in the number of issued shares of Common Stock
resulting from a subdivision of such shares, the payment of stock
dividends or certain other capital adjustments.
</FN>
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Energy Search, Incorporated (the
"COMPANY" or the "REGISTRANT") with the Securities and Exchange Commission
are incorporated in this registration statement by reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the Registrant's
fiscal year covered by the annual report referred to in (a)
above.
(c) The description of the Registrant's common stock, which
is contained in the Registrant's Form 8-A registration statement
filed under the Exchange Act on January 22, 1997, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act before the filing
of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities remaining unsold from the
date of filing of such documents shall be deemed to be incorporated by
reference in this registration statement and to be a part of this
registration statement from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section
12 of the Exchange Act. A description of such securities has been
incorporated by reference in Item 3(c) above.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Charter and Bylaws generally require the Company to
indemnify its directors and officers to the fullest extent permissible
under Tennessee law against all expenses (including attorneys' fees)
incurred in any proceeding (whether or not such proceeding was by or in the
right of the Company, a subsidiary or otherwise) in which they were a party
because of their position as a director or officer of the Company or
because they served at the request of the Company as a director, officer,
employee or agent of another corporation or entity. The provision also
provides for the advancement of litigation expenses at the request of a
director or officer under certain circumstances.
Tennessee law generally permits indemnification of expenses
incurred in the defense or settlement of a derivative or third-party
action, provided that there is a determination by a majority vote of (a) a
quorum of disinterested directors, or (b) if a quorum cannot be obtained,
by a majority vote of a committee of the board which consists of at least
two disinterested directors, or (c) if there are no such directors or
committee or if such directors or committee so directs, by independent
special legal counsel in a written opinion or (d) by the shareholders, but
shares owned by or voted under the control of directors who are parties to
the proceeding may not vote on the determination, that the person seeking
indemnification acted in good faith and in a manner the person reasonably
believed to be in (in the case of action in an official capacity) or not
opposed to (in the case of action other than in an official capacity) the
best interests of the corporation. Without court approval, however, no
indemnification may be made in respect of any derivative action in which
the person is adjudged liable to the corporation. Tennessee law requires
indemnification of expenses when the individual being indemnified has
successfully defended the action on the merits or otherwise.
All of the above provisions could affect the liability of the
Company's directors and officers in their capacities as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed or incorporated by reference as
part of this registration statement:
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EXHIBIT
NUMBER DOCUMENT
4.1 Amended and Restated Charter. Previously filed as an exhibit to
the Registrant's Definitive Proxy Statement filed on April 28,
1998, and incorporated herein by reference.
4.2 Bylaws. Previously filed as an exhibit to the Registrant's
Quarterly Report on Form 10-QSB for the quarter ended June 30,
1998, and incorporated herein by reference.
4.3 Specimen of Common Stock Certificate. Previously filed as an
exhibit to the Registrant's Registration Statement on Form SB-2
(333-12755), and incorporated herein by reference.
4.4 Specimen of Redeemable Series A Common Stock Purchase Warrant
Certificate. Previously filed as an exhibit to the Registrant's
Registration Statement on Form SB-2 (333-12755), and incorporated
herein by reference.
4.5 Specimen of Underwriters' Warrant Certificate. Previously filed
as an exhibit to the Registrant's Registration Statement on Form
SB-2 (333-12755), and incorporated herein by reference.
5 Opinion of Patrick R. Sughroue, P.C.
23.1 Consent of Plante & Moran, LLP.
23.2 Consent of Patrick R. Sughroue, P.C. Included in Exhibit 5 above.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(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.
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Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
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
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii)
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 Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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) 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) The undersigned registrant hereby undertakes 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
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) 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
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offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Knoxville, state of
Tennessee, on this 11th day of June, 1999.
ENERGY SEARCH, INCORPORATED
By /s/Richard S. Cooper
Richard S. Cooper
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/s/Charles P. Torrey, Jr. Director (Principal June 11, 1999
Charles P. Torrey, Jr. Executive Officer)
/s/Richard S. Cooper Director June 11, 1999
Richard S. Cooper
/s/Robert L. Remine Director (Principal June 11, 1999
Robert L. Remine Financial and Accounting
Officer)
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DOCUMENT
4.1 Amended and Restated Charter. Previously filed as an exhibit to
the Registrant's Definitive Proxy Statement filed on April 28,
1998, and incorporated herein by reference.
4.2 Bylaws.
4.3 Specimen of Common Stock Certificate. Previously filed as an
exhibit to the Registrant's Registration Statement on Form SB-2
(333-12755), and incorporated herein by reference.
4.4 Specimen of Redeemable Series A Common Stock Purchase Warrant
Certificate. Previously filed as an exhibit to the Registrant's
Registration Statement on Form SB-2 (333-12755), and incorporated
herein by reference.
4.5 Specimen of Underwriters' Warrant Certificate. Previously filed
as an exhibit to the Registrant's Registration Statement on Form
SB-2 (333-12755), and incorporated herein by reference.
5 Opinion of Patrick R. Sughroue, P.C.
23.1 Consent of Plante & Moran, LLP.
23.2 Consent of Patrick R. Sughroue, P.C. Included in Exhibit 5 above.
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EXHIBIT 5
PATRICK R. SUGHROUE, P.C.
3777 Sparks Drive S.E.
Suite 130
Grand Rapids, MI 49546
Patrick R. Sughroue
Ethan M. Powsner _________ Tel: (616) 940-3399
___________ Fax: (616) 940-3592
Angela J. Pearson,
Legal Assistant A PRIMERUS LAW FIRM E-Mail: [email protected]
June 10, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Registration of Form S-8; 300,000 Shares of Common Stock
Gentlemen:
I have acted as counsel to Energy Search, Incorporated (the "Company") in
connection with the Company's Registration Statement on Form S-8 (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, relating to the registration
of 300,000 shares (the "Shares") of Common Stock, no par value, of the
Company in connection with the Energy Search, Incorporated Stock Option and
Restricted Stock Plan of 1998.
I have examined the Company's Charter and Bylaws and such other corporate
records of the Company, documents and certificates of public officials and
others as I have deemed necessary as a basis for the opinion hereinafter
expressed.
Based on the foregoing and having regard for such legal considerations as I
deem relevant, I am of the opinion that the Shares have been duly
authorized and are validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
PATRICK R. SUGHROUE, P.C.
/s/ Patrick R. Sughroue
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EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
Energy Search, Incorporated
Knoxville, Tennessee
We consent to the incorporation by reference in this Registration Statement
of Energy Search, Incorporated on Form S-8 of our report dated March 12,
1999, relating to the consolidated financial statements of Energy Search,
Incorporated appearing in the Company's Annual Report on Form 10-K for the
year ended December 31, 1998.
/s/Plante & Moran, LLP
Grand Rapids, Michigan
June 14, 1999
