As filed with the Securities and Exchange Commission on February 17, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
L & L ENERGY, INC.
(Exact name of registrant as specified in its charter)
Nevada |
| 91-2103949 |
(State or other jurisdiction of incorporation or organization) |
| (I.R.S. Employer Identification No.) |
130 Andover Park East
Suite 200
Seattle, WA 98188
(206) 264-8065
(Address of Principal Executive Offices, Including Zip Code)
L & L ENERGY, INC.
2010 STOCK INCENTIVE PLAN
(Full title of the plan)
Dickson V. Lee, Chief Executive Officer
L&L Energy, Inc.
130 Andover Park East
Suite 200
Seattle, WA 98188
(Name and address of agent for service)
(206) 264-8065
(Telephone number, including area code, of agent for service)
Copies to:
D. Roger Glenn
Glenn & Glenn
124 Main Street, Suite 8
(845) 256-8031
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” or a “smaller reporting company” in Rule 12-b2 of the Exchange Act.
Large accelerated filer |
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| Accelerated filer | X | ||
Non-accelerated filer |
| ¨ (Do not check if a smaller reporting company.) |
| Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
| Amount to be registered |
| Proposed maximum per share (1)(2) |
| Proposed maximum aggregate offering price |
| Amount of registration fee |
Common Stock, par value $0.001 per share (1) |
| 4,200,000 |
| $8.07 (3) |
| $33,894,000 |
| $3936.00 |
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(1) | This registration statement (the “Registration Statement”) registers the issuance of an aggregate of 4,200,000 shares of the common stock ofL & L ENERGY, INC.(the “Registrant”), par value $0.001 (the “Common Stock”), issuable pursuant to awards under the Company’s 2010 Stock Incentive Plan. |
(2) | Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares that may be offered or issued as a result of stock splits, stock dividends or similar transactions. |
(3) | The proposed maximum offering price per share is based on the average of the high and low per share prices of the Common Stock as reported on the Nasdaq Global Select Market on February 12, 2011 in accordance with Rule 457(h)(1) and Rule 457(c) promulgated under the Securities Act. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated herein by reference:
| 1. | The Registrant’s Annual Report on Form 10-K for the fiscal year ended April 30, 2010 filed with the Commission on June 28, 2010 pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act “). |
| 2. | The Registrant’s Quarterly Report on Form 10-Q for the period ended July 31, 2010, filed with the Commission on September 9, 2010 pursuant to Section 13 of the Exchange Act, as amended by the Registrant’s Quarterly Report on Form 10-Q/A. filed on September 14, 2010. |
| 3. | The Registrant’s Quarterly Report on Form 10-Q for the period ended October 31, 2010, filed with the Commission on December 10, 2010 pursuant to Section 13 of the Exchange Act. |
| 4. | Each of the Registrant’s Current Reports on Form 8-K filed with the Commission pursuant to Section 13 of the Exchange Act on August 9, 2010, August 16, 2010, September 15, 2010, October 12, 2010, December 1, 2010, December 21, 2010, December 30, 2010, January 7, 2011, January 19, 2011, January 24, 2011 and February 1, 2011, in each case only to the extent filed and not furnished. |
| 5. | The description of the Registrant’s Common Stock included in the Registrant’s registration statement on pages 45 and 46 of Form S-1/A (Reg. No. 333-164229), filed with the Commission on December 31, 2010. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be 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 in this Registration Statement, or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement, modif ies 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.
Item 6. Indemnification of Directors and Officers.
Nevada Law
Section 78.7502 of the Nevada Revised Statutes permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he:
(a) is not liable pursuant to Nevada Revised Statute 78.138, or
(b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
In addition, Section 78.7502 permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee oragent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he:
(a) is not liable pursuant to Nevada Revised Statute 78.138; or
(b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation.
To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to above, or in defense of any claim, issue or matter, the corporation is required to indemnify him against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense.
Section 78.752 of the Nevada Revised Statutes allows a corporation to purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise for any liability asserted against him and liability and expenses incurred by him in his capacity as a director, officer, employee or agent, or arising out of his status as such, whether or not the corporation has the authority to indemnify him against such liability and expenses.
Other financial arrangements made by the corporation pursuant to Section 78.752 may include the following:
(a) creation of a trust fund;
(b) the establishment of a program of self-insurance;
(c) the securing of its obligation of indemnification by granting a security interest or other lien on any assets of the corporation; and
(d) the establishment of a letter of credit, guaranty or surety
No financial arrangement made pursuant to Section 78.752 may provide protection for a person adjudged by a court of competent jurisdiction, after exhaustion of all appeals, to be liable for intentional misconduct, fraud or a knowing violation of law, except with respect to the advancement of expenses or indemnification ordered by a court.
Any discretionary indemnification pursuant to NRS 78.7502, unless ordered by a court or advanced pursuant to an undertaking to repay the amount if it is determined by a court that the indemnified party is not entitled to be indemnified by the corporation, may be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. The determination must be made:
(a) by the stockholders;
(b) by the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding;
(c) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion, or
(d) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion.
Charter Provisions and Other Arrangements of the Registrant
The Registrant is a Nevada corporation and, accordingly, is subject to the corporate laws under the Nevada Revised Statutes. Article XI of the Registrant’s Bylaws contain the following indemnification provision for our directors and officers:
“The corporation shall indemnify its directors and officers to the fullest extent not prohibited by the Nevada General Corporation Law; provided, however, that the corporation may modify the extent of such indemnification by individual contracts with its directors and officers; and, provided, further, that the corporation shall not be required to indemnify any director or officer in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation, (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the Nevada General Corporation Law or (iv) such indemnification is required to be made under subsection (d).”
Such indemnification provision is sufficiently broad to permit the Registrant to indemnify its executive officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act. The Registrant has current directors’ and officers’ liability insurance (D&O insurance) covering our directors and officers activities conducted for and on behalf of the Registrant up to the amount of $5 million in the aggregate.
The indemnification provisions in the Bylaws, and any indemnification agreements entered into between the Registrant and its directors or officers, may be sufficiently broad to permit indemnification of the Registrant’s directors and officers for liabilities arising under the Securities Act. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. No pending material litigation or proceeding involving our directors, executive officers, employees or other agents as to which indemnification is being sought exists, and we are not aware of any pending or threatened material litigation that may result in claims for indemnification by any of our directors or executive officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. |
| Description of Exhibit |
4.1 |
| 2010 Stock Incentive Plan |
5.1 |
| Opinion of Counsel |
23.1 |
| Consent of Counsel (included in Exhibit 5.1) |
23.2 |
| Consent of Kabani & Co., Independent Registered Public Accounting Firm |
24.1 |
| Power of Attorney (included on Signature Page) |
Item 9. Undertakings.
a. | The undersigned Registrant hereby undertakes: |
| 1. | To file, during any period in which offers or sales are being made pursuant to this Registration Statement, a post-effective amendment to this Registration Statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement. 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 is 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 “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 this Registration Statement or any material change to such information in this Registration Statement; |
provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this 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 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, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 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. |
c. | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under “Item 6—Indemnification of Directors and Officers”, or otherwise, the Registrant has been advised that in the opinion of the 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 such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matte r 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. |
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 Seattle, State of Washington, on February 17, 2011.
L&L ENERGY, INC. | |
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By: | /s/ Dickson V. Lee |
| Dickson V. Lee Chief Executive Officer (Principal Executive Officer) |
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By: | /s/ David Lin |
| David Lin Acting Chief Financial Officer (Principal Financial and Accounting Officer)
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Dickson V. Lee and David Lin, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and additions to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his substitute or su bstitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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/s/ Dickson V. Lee |
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| February 17, 2011 | ||||
Dickson V. Lee |
| Chairman of the Board, President, and Chief Executive Officer |
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/s/ David Lin |
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| February 17, 2011 | ||||
David Lin |
| Acting Chief Financial Officer |
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/s/ Norman Mineta* |
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Norman Mineta |
| Director |
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/s/ Shirley Kiang * |
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Shirley Kiang |
| Director |
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/s/ Ian Robinson* |
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Ian Robinson |
| Director |
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/s/ Robert Lee * |
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| February 17, 2011 | ||||
Robert Lee |
| Director |
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/s/ Dennis Bracy * |
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| February 17, 2011 | ||||
Dennis Bracy |
| Director |
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/s/ Robert Okun * |
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| February 17, 2011 | |||
Robert Okun |
| Director |
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| February 17, 2011 | ||||
Andy Leitch |
| Director |
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