As filed with the Securities and Exchange Commission on June 17, 1999
Registration No. 333-64231
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------------------
Post-Effective Amendment No. 1 to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------------------------------
SYNTROLEUM CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
1350 South Boulder, Suite 1100
Delaware Tulsa, Oklahoma 74119 43-1764632
(State or Other (I.R.S. Employer
Jurisdiction of (Address of Principal Executive Identification No.)
Incorporation or Offices and Zip Code)
Organization)
---------------------------------------------
1993 STOCK OPTION AND INCENTIVE PLAN
STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
DIRECTOR STOCK OPTIONS
CONSULTANT STOCK OPTION
(Full Title of the Plan)
----------------------------
ERIC GRIMSHAW
Vice President and General Counsel
Syntroleum Corporation
1350 South Boulder, Suite 1100
Tulsa, Oklahoma 74119
(Name and Address of Agent for Service)
(918) 592-7900
(Telephone Number, Including Area Code,
of Agent for Service)
This Post-Effective Amendment is being filed pursuant to Rule 414 under the
Securities Act of 1933, as amended (the "Securities Act"), by Syntroleum
Corporation, a Delaware corporation ("Syntroleum-Delaware" or the "Company"), as
successor to Syntroleum Corporation, a Kansas corporation ("Syntroleum-Kansas").
Syntroleum-Delaware hereby expressly adopts the Registration Statement on Form
S-8 (File No. 333-64231) as its own Registration Statement for all purposes of
the Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of Form S-8 and the statement of availability of registrant
information and any other information required by Item 2 of Form S-8 will be
sent or given to participants as specified by Rule 428 under the Securities Act.
In accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. The
registrant shall maintain a file of such documents in accordance with the
provisions of Rule 428. Upon request, the registrant shall furnish to the
Commission or its staff a copy or copies of all of the documents included in
such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
This Registration Statement incorporates herein by reference the
following documents which have been filed with the Commission by Syntroleum-
Delaware and Syntroleum-Kansas pursuant to the Securities Act and the Exchange
Act:
1. Syntroleum-Kansas' Annual Report on Form 10-K for the year ended
December 31, 1998, as amended by Amendment No. 1 filed with the
Commission on April 28, 1998.
2. Syntroleum-Kansas' Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998.
3. Syntroleum-Kansas' Current Report on Form 8-K dated February 16,
1999, as amended by Amendment No. 1 filed with the Commission on
February 25, 1999.
4. Syntroleum-Delaware's Current Report on Form 8-K dated June 17,
1999.
5. The description of Syntroleum-Delaware's common stock and
associated preferred share purchase rights contained in its Current
Report on Form 8-K dated June 17, 1999.
Each document filed by Syntroleum-Delaware or Syntroleum-Kansas pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Post-Effective Amendment and prior to the filing of any further post-
effective amendment to this Registration Statement 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 such
documents.
Any statement contained in this Registration Statement in an amendment
hereto or 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 supplement to
this Registration Statement or in any document that also is incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
The financial statements included in Syntroleum-Kansas' Annual Report on
Form 10-K for the year ended December 31, 1998 and incorporated herein by
reference have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and have been
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Limitation of Liability of Directors.
The Company's Certificate of Incorporation provides that a director of
the Company will not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to the Company or
its stockholders, (2) for acts or omissions
II-1
not in good faith or which involve intentional misconduct or a knowing violation
of law, (3) under Section 174 of the General Corporation Law of the State of
Delaware (the "DGCL"), which concerns unlawful payments of dividends, stock
purchases or redemptions, or (4) for any transaction from which the director
derived an improper personal benefit.
While the Company's Certificate of Incorporation provides directors with
protection from awards for monetary damages for breaches of their duty of care,
it does not eliminate such duty. Accordingly, the Company's Certificate of
Incorporation will have no effect on the availability of equitable remedies such
as an injunction or rescission based on a director's breach of his or her duty
of care. The provisions of the Company's Certificate of Incorporation described
above apply to an officer of the Company only if he or she is a director of the
Company and is acting in his or her capacity as director, and do not apply to
officers of the Company who are not directors.
Indemnification of Directors and Officers.
The Company's Certificate of Incorporation provides that each person who is
or was or had agreed to become a director or officer of the Company, or each
such person who is or was serving or who had agreed to serve at the request of
the Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (including the heirs, executors,
administrators or estate of such person), will be indemnified by the Company, in
accordance with the Company's Bylaws, to the fullest extent permitted from time
to time by the DGCL, as the same exists or may hereafter be amended (but, if
permitted by applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment) or any other applicable laws as presently or hereafter in
effect. The Company may, by action of the Company's Board of Directors, provide
indemnification to employees and agents of the Company, and to persons serving
as employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, at the request of the Company, with the same scope and
effect as the foregoing indemnification of directors and officers. The Company
may be required to indemnify any person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Company's Board of Directors
or is a proceeding to enforce such person's claim to indemnification pursuant to
the rights granted by the Company's Certificate of Incorporation or otherwise by
the Company.
The Company's Bylaws provide that each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative is or was a director or officer of the Company
or is or was serving at the request of the Company as a director or officer of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such Proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, will be indemnified and held harmless by the Company to the fullest
extent authorized by the DGCL as the same exists or may in the future be amended
(but, if permitted by applicable law, in the case of any such amendment, only to
the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification will continue as to a person who
has ceased to be a director or officer and will inure to the benefit of his or
her heirs, executors and administrators; provided, however, except as described
in the second following paragraph with respect to Proceedings to enforce rights
to indemnification, the Company will indemnify any such person seeking
indemnification in connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was authorized by the
Company's Board of Directors.
Pursuant to the Company's Bylaws, to obtain indemnification, a claimant is
to submit to the Company a written request for indemnification. Upon such
written request by a claimant, a determination, if required by applicable law,
with respect to the claimant's entitlement to indemnification will be made, if
requested by the claimant, by independent legal counsel, or if the claimant does
not so request, by the Company's Board of Directors by a majority vote of the
disinterested directors even though less than a quorum or, if there are no
disinterested directors or the disinterested directors so direct, by independent
legal counsel in a written opinion to the Company's Board of Directors, or if
the disinterested directors so direct, by the stockholders of the Company. In
the event the determination of entitlement to indemnification is to be made by
independent legal counsel at the request of the claimant, the independent legal
counsel will be selected by the Company's Board of Directors unless there has
occurred within two years prior to the date of
II-2
the commencement of the action, suit or proceeding for which indemnification is
claimed a change of control, in which case the independent legal counsel will be
selected by the claimant unless the claimant requests that such selection be
made by the Company's Board of Directors.
Pursuant to the Company's Bylaws, if a claim described in the preceding
paragraph is not paid in full by the Company within thirty days after a written
claim pursuant to the preceding paragraph has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant will also be entitled to be paid the expense of prosecuting such claim.
The Company's Bylaws provide that it will be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Company) that the claimant has not
met the standard of conduct which makes it permissible under the DGCL for the
Company to indemnify the claimant for the amount claimed, but the burden of
proving such defense will be on the Company. Neither the failure of the Company
(including the disinterested directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Company (including the disinterested
directors, independent legal counsel or stockholders) that the claimant has not
met such applicable standard of conduct, will be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct. However, the Company will be precluded from asserting that the
procedures and presumptions set forth in the Company's Bylaws are not valid,
binding and enforceable and will be bound by a determination pursuant to the
procedures set forth in the Company's Bylaws that the claimant is entitled to
indemnification in any suit brought by a claimant pursuant to the Company's
Bylaws.
The Company's Bylaws provide that the right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in the Company's Bylaws will not be exclusive of any other
right which any person may have or may in the future acquire under any statute,
provision of the Company's Certificate of Incorporation, the Company's Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise. The
Company's Bylaws permit the Company to maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense, liability or loss under
the DGCL. In addition, the Company's Bylaws authorize the Company, to the
extent authorized from time to time by the Company's Board of Directors, to
grant rights to indemnification and rights to be paid by the Company the
expenses incurred in defending any Proceeding in advance of its final
disposition to any employee or agent of the Company to the fullest extent of the
provisions of the Company's Bylaws with respect to the indemnification and
advancement of expenses of directors and officers of the Company.
The Company's Bylaws provide that the right to indemnification conferred
therein is a contract right and includes the right to be paid by the Company the
expenses incurred in defending any Proceeding in advance of its final
disposition, except that if the DGCL requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
Proceeding, will be made only upon delivery to the Company of an undertaking by
or on behalf of such director or officer, to repay all amounts so advanced if it
is ultimately determined that such director of officer is not entitled to be
indemnified under the Company's Bylaws or otherwise.
The Company has entered into indemnification agreements with each of its
directors and executive officers that contractually provide for indemnification
and expense advancement and include related provisions meant to facilitate the
indemnitees' receipt of such benefits. These provisions cover, among other
things: (i) specification of the method of determining entitlement to
indemnification and the selection of independent counsel that will in some cases
make such determination; (ii) specification of certain time periods by which
certain payments or determinations must be made and actions must be taken; and
(iii) the establishment of certain presumptions in favor of an indemnitee. The
benefits of certain of these provisions are available to an indemnitee only if
there has been a change in control (as defined).
The Company currently has directors' and officers' insurance that insures
directors and officers of the Company with respect to claims made for alleged
"wrongful acts" in their roles as directors or officers of the Company
II-3
and its subsidiaries. The insurance also insures the Company for claims against
the Company's directors or officers in situations in which the Company has an
obligation to defend and/or indemnify its directors and officers.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following documents are filed as a part of this registration
statement or incorporated by reference herein:
Exhibit
No. Description
- ------- -----------
4.1* -- Certificate of Incorporation of the Company (incorporated by
reference to Appendix B the Proxy Statement filed with the
Securities and Exchange Commission by Syntroleum-Kansas on May 12,
1999).
4.2* -- Bylaws of the Company (incorporated by reference to Appendix C to
the Proxy Statement filed with the Securities and Exchange
Commission by Syntroleum-Kansas on May 12, 1999).
4.3* -- Amended and Restated Rights Agreement dated as of January 31, 1997
and amended and restated as of June 17, 1999 (incorporated by
reference to Exhibit 4.4 to the Company's Current Report on
Form 8-K dated June 17, 1999).
4.4* -- Certificate of Designations of Series A Junior Participating
Preferred Stock of the Company, dated June 16, 1999 (incorporated
by reference to Exhibit 4.5 to the Company's Current Report on
Form 8-K dated June 17, 1999).
4.5* -- 1993 Stock Option and Incentive Plan (incorporated by reference to
Appendix E to the Joint Proxy Statement/Prospectus filed pursuant
to Rule 424(b) with the Securities and Exchange Commission by
Syntroleum-Kansas on July 2, 1998).
4.6* -- Stock Option Plan for Outside Directors (incorporated by reference
to Appendix F to the Joint Proxy Statement/Prospectus filed
pursuant to Rule 424(b) with the Securities and Exchange
Commission by Syntroleum-Kansas on July 2, 1998).
4.7+ -- Form of Stock Option Agreement for stock options issued to
Directors of Syntroleum-Kansas which were not issued pursuant to
either the Stock Option Plan for Outside Directors or pursuant to
the 1993 Stock Option and Incentive Plan.
4.8+ -- Stock Option Agreement for stock options issued to consultant for
Syntroleum-Kansas which were not issued pursuant to either the
Stock Option Plan for Outside Directors or pursuant to the 1993
Stock Option and Incentive Plan.
4.9 -- Amendment No. 1 to 1993 Stock Option and
Incentive Plan.
4.10 -- Amendment No. 1 to Stock Option Plan for
Outside Directors.
5.1 -- Opinion of Eric Grimshaw, Esq.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Eric Grimshaw, Esq. (included
in Exhibit 5.1).
24.1 -- Powers of Attorney.
- ---------------------
* Incorporated herein by reference as indicated.
+ Previously filed.
II-4
Item 9. Undertakings
(a) The Company 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 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 the 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 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) of the Securities Act
of 1933 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; and
(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 the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(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 Section 15(d) of the Securities Exchange Act
of 1934 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; and
(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 Section
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 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.
(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 above, 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 matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Post-Effective
Amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tulsa, State of Oklahoma, on June 17, 1999.
SYNTROLEUM CORPORATION
By /s/ Kenneth L. Agee
--------------------------------------------
Kenneth L. Agee
Chief Executive Officer and Chairman of the
Board
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment has been signed by the following persons in the capacities
indicated on June 17, 1999.
/s/ Kenneth L. Agee Chief Executive Officer and Chairman of the
- -------------------------
Kenneth L. Agee Board (Principal Executive Officer)
/s/ Mark A. Agee President, Chief Operating Officer and Director
- -------------------------
Mark A. Agee
/s/ Randall M. Thompson Vice President and Chief Financial Officer
- ------------------------- (Principal Financial Officer)
Randall M. Thompson
/s/ Carla S. Covey Controller (Principal Accounting Officer)
- -------------------------
Carla S. Covey
* Director
- -------------------------
Alvin R. Albe, Jr.
* Director
- -------------------------
Frank M. Bumstead
* Director
- -------------------------
P. Anthony Jacobs
* Director
- -------------------------
Robert Rosene, Jr.
* Director
- -------------------------
James R. Seward
* Director
- -------------------------
J. Edward Sheridan
* /s/ Eric Grimshaw
- -------------------------
Eric Grimshaw
Attorney in Fact
II-6
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
4.1* -- Certificate of Incorporation of the Company (incorporated by
reference to Appendix B the Proxy Statement filed with the
Securities and Exchange Commission by Syntroleum-Kansas on May
12, 1999).
4.2* -- Bylaws of the Company (incorporated by reference to Appendix C to
the Proxy Statement filed with the Securities and Exchange
Commission by Syntroleum-Kansas on May 12, 1999).
4.3* -- Amended and Restated Rights Agreement dated as of January 31,
1997 and amended and restated as of June 17, 1999 (incorporated
by reference to Exhibit 4.4 to the Company's Current Report on
Form 8-K dated June 17, 1999).
4.4* -- Certificate of Designations of Series A Junior Participating
Preferred Stock of the Company, dated June 16, 1999 (incorporated
by reference to Exhibit 4.5 to the Company's Current Report on
Form 8-K dated June 17, 1999).
4.5* -- 1993 Stock Option and Incentive Plan (incorporated by reference
to Appendix E to the Joint Proxy Statement/Prospectus filed
pursuant to Rule 424(b) with the Securities and Exchange
Commission by Syntroleum-Kansas on July 2, 1998).
4.6* -- Stock Option Plan for Outside Directors (incorporated by
reference to Appendix F to the Joint Proxy Statement/Prospectus
filed pursuant to Rule 424(b) with the Securities and Exchange
Commission by Syntroleum-Kansas on July 2, 1998).
4.7+ -- Form of Stock Option Agreement for stock options issued to
Directors of Syntroleum-Kansas which were not issued pursuant to
either the Stock Option Plan for Outside Directors or pursuant to
the 1993 Stock Option and Incentive Plan.
4.8+ -- Stock Option Agreement for stock options issued to consultant for
Syntroleum-Kansas which were not issued pursuant to either the
Stock Option Plan for Outside Directors or pursuant to the 1993
Stock Option and Incentive Plan.
4.9 -- Amendment No. 1 to 1993 Stock Option and Incentive Plan.
4.10 -- Amendment No. 1 to Stock Option Plan for Outside Directors.
5.1 -- Opinion of Eric Grimshaw, Esq.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Eric Grimshaw, Esq. (included in Exhibit 5.1).
24.1 -- Powers of Attorney.
* Incorporated herein by reference as indicated.
+ Previously filed.
II-7