As filed with the Securities and Exchange Commission on November 17, 2000
Registration No. ___
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CARBON ENERGY CORPORATION
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(Exact name of issuer as specified in its charter)
Colorado 84-1515097
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(State or other Jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1700 Broadway, Suite 1150, Denver, Colorado 80290
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(Address of Principal Executive Offices and Zip Code)
CARBON ENERGY CORPORATION
401(k) PROFIT SHARING PLAN
--------------------------
(Full title of plan)
Patrick R. McDonald, President
Carbon Energy Corporation
1700 Broadway, Suite 1150, Denver, Colorado 80290
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(Name and address of agent for service)
(303) 863-1555
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(Telephone number, including area code, of agent for service)
Copy to: Holland & Hart LLP
Attn: Mark R. Levy, Esq.
555 Seventeenth Street, Suite 3200
Denver, Colorado 80202
CALCULATION OF REGISTRATION FEE
- ------------------------- ---------------------- ----------------------- ------------------------ --------------------
Proposed Proposed
Title of Securities to Amount to be maximum offering maximum aggregate Amount of
be registered registered (1) price per share (2) offering price (2) registration fee
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Common Stock 60,000 $5.94 $356,400 $94.10
(no par value)
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Plan Interests Indeterminate (3) N/A N/A N/A
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(1) This Registration Statement includes shares of the Registrant purchased
by the 401(k) Profit Sharing Plan by the Registrant pursuant to one of
its investment options in the open market. Accordingly, the number of
shares being registered is an estimate. This Registration Statement
also includes an indeterminate number of shares that may be issued to
prevent dilution resulting from stock splits, stock dividends or
similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee and based on
the average of the high and low sales prices for the Registrant's
common stock as reported on the American Stock Exchange on November 14,
2000. No fee is paid for the interests in the employee benefit plan
described herein pursuant to Rule 457(h).
(3) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described
herein.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required by Part I of Form S-8
will be sent or given to participants in the Carbon Energy Corporation 401(k)
Profit Sharing Plan (the "Plan") as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). In reliance on Rule
428, such documents (i) 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, and (ii) along
with the documents incorporated by reference into this registration statement
pursuant to Item 3 of Part II hereof, constitute a prospectus (the "Prospectus")
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents are hereby incorporated by reference in this
registration statement:
(1) The Company's Annual Report on Form 10-K, filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), for the year ended December 31,
1999.
(2) All other reports filed by the Company pursuant to Section 13
or 15(d) of the Exchange Act since December 31, 1999.
(3) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (SEC File No.
001-15639) filed on January 25, 2000.
All documents filed by the Registrant pursuant to Sections 13, 14 or
15(d) of the Exchange Act subsequent to the date of this registration statement,
and prior to the filing of a post-effective amendment which indicates that all
shares offered hereby have been sold or which deregisters all shares 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 the Prospectus, this registration
statement or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
the Prospectus and this registration statement to the extent that a statement
contained in any subsequently filed document that also is or is deemed to be
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 the Prospectus or this registration
statement.
Item 4. Description of Securities.
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Not applicable.
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Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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The Bylaws provide that the Company will indemnify its directors and
executive officers and may indemnify other officers, employees and other agents
to the fullest extent permitted by Colorado law. The Company has also entered
into indemnification agreements with each director and executive officer. All
indemnification agreements are identical. These agreements provide, among other
things, for indemnification and advancement of expenses to the fullest extent
permitted by law in connection with any legal proceeding in which the person was
made a party because the person was a director or executive officer of the
Company, place the burden of proof on the Company in regard to whether an
individual has met the required standard of conduct for indemnification, cover
procedural matters such as the hiring of counsel and require the Company to pay
the expenses of the director or executive officer in enforcing any required
indemnification or advancement of expenses.
In addition, the Articles of Incorporation provide that to the fullest
extent permitted by Colorado law, directors will not have personal liability to
the Company or its stockholders for monetary damages for any breach of fiduciary
duties as a director. This does not eliminate the duties themselves, and in
appropriate circumstances, equitable remedies such as injunction or other forms
of nonmonetary relief remain available under Colorado law. This provision does
not eliminate the liability of a director for (1) any breach of the director's
duty of loyalty to the Company or its stockholders; (2) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (3) unlawful dividends, stock repurchases or redemptions; or (4) any
transaction from which the director derived an improper personal benefit. This
does not affect a director's responsibilities under other laws such as the
federal or state securities laws.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing provisions or
otherwise, the Company 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.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit No. Description.
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4.1 Articles of Incorporation (incorporated by reference to
Exhibit 2 of the Company's registration statement on Form S-4,
No. 333-89783, effective January 18, 2000).
4.2 Bylaws (incorporated by reference to Exhibit 3 of the
Company's registration statement on Form S-4, No. 333-89783,
effective January 18, 2000).
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4.3 Carbon Energy Corporation 401(k) Profit Sharing Plan.
5.1 Omitted as inapplicable pursuant to Item 8 of Form S-8 which
provides that a legal
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hein + Associates LLP.
24.1 Power of Attorney.
In lieu of an opinion of counsel concerning compliance with the
requirements of ERISA, or an Internal Revenue Service ("IRS") determination
letter that the Plan is qualified under Section 401 of the Code, the registrant
hereby undertakes to cause the Plan to be submitted and any amendments thereto
to the IRS in order to qualify the Plan and the registrant undertakes to cause
all changes to be made which are required by the IRS in order to qualify the
Plan.
Item 9. Undertakings.
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(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;
(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;
(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 or Form S-8, 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 section 15(d) of the Exchange Act 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 the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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 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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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 foregoing provisions, 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 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 Securities Act and will be governed by the final
adjudication of such issue.
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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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on November 17, 2000.
CARBON ENERGY CORPORATION
By: /s/ Patrick R. McDonald
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Patrick R. McDonald, President
By: /s/ Kevin D. Struzeski
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Kevin D. Struzeski, Treasurer
and Chief Financial Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
/s/ Patrick R. McDonald Director and President November 17, 2000
- --------------------------- (Principal Executive Officer)
Patrick R. McDonald
/s/ Kevin D. Struzeski Treasurer and November 17, 2000
- ---------------------------- Chief Financial Officer
Kevin D. Struzeski (Principal Financial
and Accounting Officer
/s/ Cortlandt S. Dietler* Director November 17, 2000
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Cortlandt S. Dietler
/s/ David H. Kennedy* Director November 17, 2000
- ----------------------------
David H. Kennedy
/s/ Bryan H. Lawrence* Director November 17, 2000
- ---------------------------
Bryan H. Lawrence
/s/ Peter A. Leidel* Director November 17, 2000
- ----------------------------
Peter A. Leidel
/s/ Harry A. Trueblood, Jr.* Director November 17, 2000
- ----------------------------
Harry A. Trueblood, Jr.
*Signed by: /s/ Patrick R. McDonald or /s/Kevin D. Struzeski, in the capacity
indicated and as attorney-in-fact for each of the named officers and directors.
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Pursuant to the requirements of the Securities Act, the trustees (or
other persons who administer the Plan) have duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized, on November 17, 2000.
CARBON ENERGY CORPORATION
401(k) PROFIT SHARING PLAN
/s/ Patrick R. McDonald
--------------------------
Patrick R. McDonald
Trustee
/s/ Kevin D. Struzeski
--------------------------
Kevin D. Struzeski
Trustee
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EXHIBITS INDEX
Exhibit No. Description.
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4.1 Articles of Incorporation (incorporated by reference to
Exhibit 2 of the Company's registration statement on Form S-4,
No. 333-89783, effective January 18, 2000).
4.2 Bylaws (incorporated by reference to Exhibit 3 of the
Company's registration statement on Form S-4, No. 333-89783,
effective January 18, 2000).
4.3 Carbon Energy Corporation 401(k) Profit Sharing Plan.
5.1 Omitted as inapplicable pursuant to Item 8 of Form S-8 which
provides that a legal
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hein + Associates LLP.
24.1 Power of Attorney.
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