As filed with the Securities and Exchange Commission on August 20, 1998
Registration No. 33-95156
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
to
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WOLVERINE ENERGY 1998-1999
DEVELOPMENT PROGRAM
Wolverine Energy 1998-1999(A) Development Company, L.L.C.,
Wolverine Energy 1998-1999(B) Development Company, L.L.C.,
Wolverine Energy 1998-1999(C) Development Company, L.L.C.,
Wolverine Energy 1998-1999(D) Development Company, L.L.C.,
Wolverine Energy 1998-1999(E) Development Company, L.L.C.,
Wolverine Energy 1998-1999(F) Development Company, L.L.C.,
Wolverine Energy 1998-1999(G) Development Company, L.L.C.,
Wolverine Energy 1998-1999(H) Development Company, L.L.C.,
Wolverine Energy 1998-1999(I) Development Company, L.L.C., and
Wolverine Energy 1998-1999(J) Development Company, L.L.C.
(Exact name of registrants as specified in their Articles of Organization)
Michigan 1311 To be applied for
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification Nos.)
incorporation or organization) Classification Code Number)
4660 South Hagadorn Road, Suite 230
East Lansing, Michigan 48823
(517) 351-4444
(Address, including zip code, and telephone number,
including area code, of registrants' principal executive offices)
Michael D. Ewing, Esq.
Three First National Plaza, Suite 3750
Chicago, Illinois 60602
(312) 558-5165
(Address, including zip code, and telephone number,
including area code, of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
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, check the following box: X
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount maximum maximum Amount of
Title of Securities to be offering price aggregate registration
to be registered registered (1) per unit (2) offering price (1) fee (3)
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Membership Interests 15,000 $1,000 $15,000,000 $5,172.41
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(1) This Registration Statement covers all Limited Liability Company
Membership Interests that may be acquired by investors, whether as
limited liability Interests or as general liability Interests.
(2) Subscriptions will be accepted in the minimum amount of five Interests
($5,000), subject to certain lower requirements for investments by IRAs
and Keogh Plans and certain state law requirements.
(3) Previously paid.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH 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 SAID SECTION 8(a),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
SEC registration fee. . . . . . . . . . . . . . . $ 5,172.41
NASD filing fee . . . . . . . . . . . . . . . . . - 0 -
Accounting fees . . . . . . . . . . . . . . . . . 15,000.00
Costs of printing and engraving . . . . . . . . . 50,000.00
Resident agent's fees and expenses. . . . . . . . - 0 -
Engineering fees. . . . . . . . . . . . . . . . . - 0 -
Legal fees. . . . . . . . . . . . . . . . . . . . 55,000.00
Registration fees . . . . . . . . . . . . . . . . - 0 -
Taxes and fees, federal . . . . . . . . . . . . . - 0 -
Taxes and fees, state . . . . . . . . . . . . . . - 0 -
Transfer agent's fees . . . . . . . . . . . . . . - 0 -
Miscellaneous . . . . . . . . . . . . . . . . . . - 0 -
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Total $125,172.41
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 407 and 408 of the Michigan Limited Liability Company Act provides
that a Michigan limited liability company may indemnify and hold harmless any
person associated with the company and/or purchase and maintain insurance for
the same purpose subject to the restrictions contained therein.
Sections 3.5 through 3.7 of the Company Operating Agreement provide as
follows:
3.5 LIABILITY OF MANAGING PERSONS TO COMPANY AND
INTERESTHOLDERS. (a) THE MANAGING PERSONS SHALL HAVE NO LIABILITY TO
THE COMPANY OR TO ANY OTHER INTERESTHOLDER FOR ANY LOSS SUFFERED BY
THE COMPANY THAT ARISES OUT OF ANY ACTION OR INACTION OF THOSE
MANAGING PERSONS IF THOSE MANAGING PERSONS, IN GOOD FAITH, DETERMINED
THAT SUCH COURSE OF CONDUCT WAS IN THE COMPANY'S BEST INTEREST AND
SUCH COURSE OF CONDUCT WAS WITHIN THE SCOPE OF THIS AGREEMENT AND DID
NOT CONSTITUTE NEGLIGENCE OR MISCONDUCT OF THE MANAGING PERSONS
INVOLVED.
(b) NO ACT OF THE COMPANY SHALL BE AFFECTED OR INVALIDATED
BY THE FACT THAT A MANAGING PERSON MAY BE A PARTY TO OR HAS AN
INTEREST IN ANY CONTRACT OR TRANSACTION OF THE COMPANY IF THE INTEREST
OF THE MANAGING PERSON HAS BEEN DISCLOSED OR IS KNOWN TO THE
INTERESTHOLDERS.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW AND
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, THE COMPANY SHALL NOT
BE LIABLE TO ANY INTERESTHOLDER NOR SHALL ANY MANAGING PERSON BE
CONSIDERED TO HAVE BREACHED ANY FIDUCIARY DUTY OF LOYALTY TO THE
COMPANY OR ANY INTERESTHOLDER AS THE RESULT OF ANY OF THE FOLLOWING:
(1) THE RETENTION OF A MANAGING PERSON AS A CONSULTANT,
AGENT OR ADVISER TO AN ENTERPRISE IN WHICH THE COMPANY HAS
AN INTEREST;
(2) THE OWNERSHIP BY A MANAGING PERSON OF DEBT, EQUITY
OR OTHER INTERESTS IN A VENTURE IN WHICH THE COMPANY OWNS OR
MAY IN THE FUTURE OWN AN INTEREST OR THE ORGANIZATION,
OPERATION OR ADVISING OF OR THE OWNERSHIP OF INTERESTS IN
ANY ENTITY THAT MAY PARTICIPATE IN SUCH VENTURE, WHETHER OR
NOT THE INTERESTS OF THE MANAGING PERSON ARE ON TERMS MORE
OR LESS FAVORABLE THAN THOSE AFFORDED THE COMPANY;
(3) THE PARTICIPATION BY A MANAGING PERSON OR ANY
ENTITY ORGANIZED OR ADVISED BY IT IN A VENTURE IN LIEU OF
THE COMPANY'S PARTICIPATION OR INCREASING ITS PARTICIPATION
IN THE VENTURE, WHETHER OR NOT THE TERMS AFFORDED TO THE
MANAGING PERSON ARE MORE OR LESS FAVORABLE THAN THOSE
AFFORDED THE COMPANY;
(4) ANY TRANSACTIONS WITH MANAGING PERSONS OR ENTITIES
IN WHICH THEY HAVE AN INTEREST, WHETHER OR NOT THE TERMS OF
THOSE TRANSACTIONS ARE DETERMINED BY COSTS TO THE MANAGING
PERSONS
ii
OR ENTITIES, INDEPENDENT APPRAISALS OR COMPARABLE THIRD PARTY
TRANSACTIONS; OR
(5) ANY OTHER CONFLICT OF INTEREST OR CONFLICTING DUTY
DESCRIBED IN THE PROSPECTUS OR THIS AGREEMENT.
THIS SECTION 3.5(c) DOES NOT RELIEVE ANY MANAGING PERSON FROM ANY DUTY
TO EXERCISE APPROPRIATE BUSINESS JUDGMENT OR CARE (BUT WHICH SHALL NOT
BE ENHANCED BY ANY DUTY OF LOYALTY), WHICH DUTY OF JUDGMENT OR CARE
SHALL BE GOVERNED BY THE OTHER PROVISIONS OF THIS AGREEMENT, BUT THE
TAKING OF ANY ACTION DESCRIBED IN ANY PORTION OF THIS SECTION 3.5(c)
SHALL NOT IN AND OF ITSELF BE CONSIDERED FAILURE TO EXERCISE
APPROPRIATE JUDGMENT OR TO TAKE THE APPROPRIATE LEVEL OF CARE.
3.6 INDEMNIFICATION OF MANAGING PERSONS.
(a) EACH MANAGING PERSON SHALL BE INDEMNIFIED FROM THE
COMPANY PROPERTY AGAINST ANY LOSSES, LIABILITIES, JUDGMENTS, EXPENSES
AND AMOUNTS PAID IN SETTLEMENT OF ANY CLAIMS SUSTAINED BY HIM IN
CONNECTION WITH THE COMPANY OR CLAIMS BY THE COMPANY, IN RIGHT OF THE
COMPANY OR BY OR IN RIGHT OF ANY INTERESTHOLDERS, IF THE MANAGING
PERSON WOULD NOT BE LIABLE UNDER THE STANDARDS OF SECTION 3.5. THE
TERMINATION OF ANY ACTION, SUIT OR PROCEEDING BY JUDGMENT, ORDER OR
SETTLEMENT SHALL NOT, OF ITSELF, CREATE A PRESUMPTION THAT THE
MANAGING PERSON CHARGED DID NOT ACT IN GOOD FAITH AND IN A MANNER THAT
HE REASONABLY BELIEVED WAS IN THE COMPANY'S BEST INTERESTS. TO THE
EXTENT THAT ANY MANAGING PERSON IS SUCCESSFUL ON THE MERITS OR
OTHERWISE IN DEFENSE OF ANY ACTION, SUIT OR PROCEEDING OR IN DEFENSE
OF ANY CLAIM, ISSUE OR MATTER THEREIN, THE COMPANY SHALL INDEMNIFY
THAT MANAGING PERSON AGAINST THE EXPENSES, INCLUDING ATTORNEYS' FEES,
ACTUALLY AND REASONABLY INCURRED BY HIM IN CONNECTION THEREWITH.
(b) NOTWITHSTANDING THE FOREGOING, NO MANAGING PERSON NOR
ANY BROKER-DEALER SHALL BE INDEMNIFIED, NOR SHALL EXPENSES BE ADVANCED
ON ITS BEHALF, FOR ANY LOSSES, LIABILITIES OR EXPENSES ARISING FROM OR
OUT OF AN ALLEGED VIOLATION OF FEDERAL OR STATE SECURITIES LAWS,
UNLESS (i) THERE HAS BEEN A SUCCESSFUL ADJUDICATION ON THE MERITS OF
EACH COUNT INVOLVING ALLEGED SECURITIES LAW VIOLATIONS AS TO THE
PARTICULAR INDEMNITEE, OR (ii) THOSE CLAIMS HAVE BEEN DISMISSED WITH
PREJUDICE ON THE MERITS BY A COURT OF COMPETENT JURISDICTION AS TO THE
PARTICULAR INDEMNITEE, OR (iii) A COURT OF COMPETENT JURISDICTION
APPROVES A SETTLEMENT OF THE CLAIMS AGAINST THE PARTICULAR INDEMNITEE.
IN ANY CLAIM FOR FEDERAL OR STATE SECURITIES LAW VIOLATIONS, THE PARTY
SEEKING INDEMNIFICATION SHALL PLACE BEFORE THE COURT THE POSITIONS OF
THE SECURITIES AND EXCHANGE COMMISSION, THE MASSACHUSETTS SECURITIES
DIVISION AND OTHER STATE SECURITIES ADMINISTRATORS TO THE EXTENT
REQUIRED BY THEM WITH RESPECT TO THE ISSUE OF INDEMNIFICATION FOR
SECURITIES LAW VIOLATIONS.
(c) THE COMPANY SHALL NOT INCUR THE COST OF THAT PORTION OF
ANY INSURANCE, OTHER THAN PUBLIC LIABILITY INSURANCE, THAT INSURES ANY
PERSON AGAINST ANY LIABILITY FOR WHICH INDEMNIFICATION HEREUNDER IS
PROHIBITED.
3.7 GENERAL PROVISIONS. THE FOLLOWING PROVISIONS APPLY TO ALL
RIGHTS OF INDEMNIFICATION AND ADVANCES OF EXPENSES UNDER THIS
AGREEMENT AND ALL LIABILITIES DESCRIBED IN THIS ARTICLE 3:
(a) EXPENSES, INCLUDING ATTORNEYS' FEES, INCURRED BY A
MANAGING PERSON IN DEFENDING ANY ACTION, SUIT OR PROCEEDING MAY BE
PAID BY THE COMPANY IN ADVANCE OF THE FINAL DISPOSITION OF THE ACTION,
SUIT OR PROCEEDING UPON RECEIPT OF AN UNDERTAKING BY THE RECIPIENT TO
REPAY SUCH AMOUNT IF IT SHALL ULTIMATELY BE DETERMINED THAT IT IS NOT
ENTITLED TO BE INDEMNIFIED BY THE COMPANY UNDER THIS AGREEMENT OR
OTHERWISE.
(b) RIGHTS TO INDEMNIFICATION AND ADVANCES OF EXPENSES
UNDER THIS AGREEMENT ARE NOT EXCLUSIVE OF ANY OTHER RIGHTS TO
INDEMNIFICATION OR ADVANCES TO WHICH A MANAGING PERSON MAY BE
ENTITLED, BOTH AS TO ACTION IN A REPRESENTATIVE CAPACITY OR AS TO
ACTION IN ANOTHER CAPACITY TAKEN WHILE REPRESENTING ANOTHER.
(c) EACH MANAGING PERSON SHALL BE ENTITLED TO RELY UPON THE
OPINION OR ADVICE OF OR ANY STATEMENT OR COMPUTATION BY ANY COUNSEL,
ENGINEER, ACCOUNTANT, INVESTMENT BANKER OR OTHER PERSON WHICH HE
BELIEVES TO BE WITHIN SUCH PERSON'S PROFESSIONAL OR EXPERT COMPETENCE.
IN SO DOING, HE WILL BE DEEMED TO BE ACTING IN GOOD FAITH AND WITH THE
REQUISITE DEGREE OF CARE UNLESS HE HAS ACTUAL KNOWLEDGE CONCERNING THE
MATTER IN QUESTION THAT WOULD CAUSE SUCH RELIANCE TO BE UNWARRANTED.
Notwithstanding the above, there is no indemnification for losses or
expenses arising out of an alleged violation of federal or state securities laws
unless there has been a dismissal with prejudice on the merits or a successful
adjudication on the merits of each count involving such a violation and the
court approves indemnification of litigation
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costs, or a court approves a settlement and finds that indemnification of the
settlement and related costs should be made.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
None.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
1.1 Form of Soliciting Dealers Agreement*
3.1 Articles of Association of Wolverine Energy, L.L.C.
3.2 Operating Agreement of Wolverine Energy, L.L.C.
4.1 Form of Company Operating Agreement*
5.1 Form of opinion of Fraser Trebilcock Davis & Foster, P.C.*
8.1 Form of opinion of Patzik, Frank & Samotny Ltd.*
10.1 Form of Escrow Deposit Agreement*
10.2 Form of Turnkey Agreement*
24.1 Consent of Plante & Moran, LLP*
24.2 Consent of Fraser Trebilcock Davis & Foster, P.C.*
24.4 Consent of Patzik, Frank and Samotny Ltd*
25.1 Power of attorney of George H. Arbaugh, Jr (++, if necessary)
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++ To be filed by amendment
* Previously filed
(b) Financial statements:
None
ITEM 17. UNDERTAKINGS
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; and
(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.
(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.
Subject to the terms and conditions of Section 15(d) of the Securities
Exchange Act of 1934, as amended, the undersigned registrant hereby undertakes
to file with the Commission such supplementary and periodic information,
documents and reports as may be prescribed by any rule or regulation of the
Commission heretofore or hereafter duly adopted pursuant to the authority
conferred in that Section.
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The registrant undertakes to file an annual report of Form 10-K at the
conclusion of the fiscal year in which this registration statement is declared
effective.
The registrant undertakes to file a final Form SR indicating the actual
application of the proceeds from this offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, (the "Act"), may be permitted to directors, officers and
controlling persons of Wolverine Energy, L.L.C. (the "Manager"), pursuant to the
provisions described hereunder, or otherwise, the Manager 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
that the payment by the Manager of expenses incurred or paid by a director,
officer or controlling person of the Manager 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 Manager 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
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 4 to its Registration Statement
No. 33-95156 on Form SB-2 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of East Lansing, State of Michigan, on
the 20th day of August, 1998.
WOLVERINE ENERGY 1998-1999 DEVELOPMENT PROGRAM
By: Wolverine Energy, L.L.C.
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Manager
By: /s/ George H. Arbaugh, Jr.
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George H. Arbaugh, Jr., President and
Chief Executive Officer
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 Title Date
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By: /s/ George H. Arbaugh, Jr. President, Chief Executive August 20, 1998
--------------------------- Officer, Chief Accounting
George H. Arbaugh, Jr. Officer and sole Director