UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3/A
(Amendment No. 1)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FX ENERGY, INC.
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(Exact name of registrant as specified in its charter)
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Nevada
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(State or other jurisdiction of incorporation or organization)
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87-0504461
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(I.R.S. Employer Identification Number)
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3006 Highland Drive, Suite 206, Salt Lake City, Utah 84106 / Telephone: (801) 486-5555
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(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
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David N. Pierce, Chief Executive Officer
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FX Energy, Inc.
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3006 Highland Drive, Suite 206, Salt Lake City, Utah 84106
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Telephone: (801) 486-5555
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(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Copy to:
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James R. Kruse
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Kevin C. Timken
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Kruse Landa Maycock & Ricks, LLC
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136 East South Temple Street, Twenty-First Floor, Salt Lake City, Utah 84111
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Telephone: (801) 531-7090
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From time to time after the effectiveness of this registration statement.
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(Approximate date of commencement of proposed sale to the public)
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If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
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” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer o
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Accelerated filer x
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Non-accelerated filer o
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Smaller reporting company ¨
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered
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Amount to be registered(1)
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Proposed maximum offering
price per unit(2)
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Proposed maximum aggregate
offering price(1)
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Amount of
registration fee(1)
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Common stock, $0.001 par value
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(2)
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--
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(2)
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(2)
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Preferred stock, $0.001 par value
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(2)
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--
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(2)
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(2)
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Warrants
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(2)
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--
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(2)
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(2)
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Senior Debt Securities
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(2)
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--
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(2)
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(2)
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Subordinated Debt Securities
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(2)
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--
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(2)
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(2)
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Total
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$20,615,788(3)
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--
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$20,615,788(3)
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$2,396(3)
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(1)
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This registration statement covers an indeterminate principal amount or number of shares of common stock and preferred stock, senior and subordinated debt securities, and number of warrants of the registrant with an aggregate initial offering price not to exceed $200,000,000. The securities registered hereunder are to be issued from time to time and at prices to be determined. Any securities registered under this registration statement may be sold separately or as units with other securities registered under this registration statement. The securities registered hereunder also include: (i) an indeterminate number of shares of common stock or preferred stock, number of warrants, and principal amount of senior and subordinated debt securities as may, from time to time, be issued upon conversion or exchange of any preferred stock, warrants, or senior or subordinated debt securities registered hereunder, for which no separate consideration will be payable; and (ii) securities that may be purchased by underwriters to cover over-allotments, if any.
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(2)
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Omitted pursuant to General Instruction II(D) of Form S-3 under the Securities Act of 1933, as amended.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended. Pursuant to the notes for the calculation of this registration fee of Form S-3 and Rule 415(a)(6), the filing fee respecting the $179,384,712 in unsold securities included in the $200,000,000 in securities registered on Form S-3, SEC file no. 333-182288, was previously paid, so the $179,384,712 in the unsold securities has been deducted from the amount registered in this registration statement for the purposes of calculating the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE U.S. SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits
The following documents are included as exhibits to this Registration Statement, pursuant to Item 601 of Regulation S-K:
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Exhibit
Number*
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Title of Document
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Location
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Item 1.
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Underwriting Agreement
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1.01
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Form of Underwriting Agreement
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To be filed, if applicable, subsequent to the effectiveness of this registration statement by an amendment to the registration statement or incorporated by reference pursuant to a current report on Form 8-K in connection with the offering of securities.
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Item 4.
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Instruments Defining the Rights of Holders, Including Indentures
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4.01
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Specimen common stock certificate
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Incorporated by reference from the annual report on Form 10-K for the period ended December 31, 2006, filed March 13, 2007.
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4.07
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Form of Indenture for Senior Debt Securities
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Incorporated by reference from the registration statement on Form S-3 filed July 30, 2015.
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4.08
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Form of Indenture for Subordinated Debt Securities
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Incorporated by reference from the registration statement on Form S-3 filed July 30, 2015.
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4.09
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Form of Supplemental Indenture or other instrument establishing the issuance of one or more series of debt securities (including form of debt security)
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To be filed, if applicable, subsequent to the effectiveness of this registration statement by an amendment to the registration statement or incorporated by reference pursuant to a current report on Form 8-K in connection with the offering of securities.
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4.10
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Form of Certificate of Designation of one or more series of Preferred Stock
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To be filed, if applicable, subsequent to the effectiveness of this registration statement by an amendment to the registration statement or incorporated by reference pursuant to a current report on Form 8-K in connection with the offering of securities.
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II-1
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Exhibit
Number*
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Title of Document
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Location
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4.11
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Form of Warrant
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To be filed, if applicable, subsequent to the effectiveness of this registration statement by an amendment to the registration statement or incorporated by reference pursuant to a current report on Form 8-K in connection with the offering of securities.
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Item 5.
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Opinion re: Legality
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5.01
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Opinion of Kruse Landa Maycock & Ricks, LLC
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This filing.
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Item 12.
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Statements re: Computation of Ratios
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12.01
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Computation of ratio of earnings to fixed charges
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Incorporated by reference from the registration statement on Form S-3 filed July 30, 2015.
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Item 23.
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Consents of Experts and Counsel
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23.01
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Consent of Grant Thornton LLP, independent registered public accounting firm
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Incorporated by reference from the registration statement on Form S-3 filed July 30, 2015.
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23.02
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm
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Incorporated by reference from the registration statement on Form S-3 filed July 30, 2015.
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23.03
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Consent of RPS Energy Limited, Petroleum Engineers
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Incorporated by reference from the registration statement on Form S-3 filed July 30, 2015.
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23.04
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Consent of Hohn Engineering, PLLC, Petroleum Engineer
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Incorporated by reference from the registration statement on Form S-3 filed July 30, 2015.
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23.05
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Consent of Kruse Landa Maycock & Ricks, LLC (contained in opinion filed as Exhibit 5.01)
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Included at Exhibit 5.01.
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Item 24.
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Power of Attorney
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24.01
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Power of Attorney
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Incorporated by reference from the registration statement on Form S-3 filed July 30, 2015.
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Item 25.
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Statement of Eligibility of Trustee
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25.01
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Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Trustee under the Indenture
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To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
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____________________
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*
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The number preceding the decimal indicates the applicable SEC reference number in Item 601, and the number following the decimal indicating the sequence of the particular document. Omitted numbers in the sequence refer to documents previously filed as an exhibit.
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II-2
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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Salt Lake City, state of Utah, on August 4, 2015.
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FX ENERGY, INC.
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Date: August 4, 2015
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By:
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/s/ David N. Pierce |
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David N. Pierce
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President
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Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ David N. Pierce
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David N. Pierce
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Chief Executive Officer and Director
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August 4, 2015
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/s/ Clay Newton
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Clay Newton
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Principal Financial and Accounting Officer
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August 4, 2015
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*
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Dennis B. Goldstein
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Director
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August 4, 2015
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*
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Arnold S. Grundvig Jr.
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Director
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August 4, 2015
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*
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Jerzy B. Maciolek
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Director
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August 4, 2015
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*
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H. Allen Turner
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Director
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August 4, 2015
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/s/ David N. Pierce
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* Signed by David N. Pierce, attorney-in-fact
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II-3
August 4, 2015
FX Energy, Inc.
3006 Highland Drive, Suite 206
Salt Lake City, Utah 84106
Re: Registration Statement on Form S-3
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♦
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Common Stock, par value $0.001
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♦
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Preferred Stock, par value $0.001
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♦
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Subordinated Debt Securities
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Ladies and Gentlemen:
We have acted as counsel for FX Energy, Inc., a Nevada corporation (the “Company”), in connection with the registration under the Securities Act of 1933 (the “Securities Act”), on a Registration Statement on Form S-3 (the “Registration Statement”) of the offer and sale, from time to time, pursuant to Rule 415 under the Securities Act of the following securities for an aggregate initial offering price not to exceed $200,000,000: (i) shares of common stock, par value $0.001, of the Company (“Common Stock”); (ii) shares of preferred stock, par value $0.001, of the Company (“Preferred Stock”); (iii) warrants to purchase Senior Debt Securities (as hereinafter defined), Subordinated Debt Securities (as hereinafter defined), Preferred Stock, or Common Stock (the “Warrants”); (iv) senior debt securities (“Senior Debt Securities”); and (v) subordinated debt securities (“Subordinated Debt Securities” and, together with the Common Stock, Preferred Stock, Warrants, and Senior Debt Securities, the “Securities”).
For purposes of rendering the opinions contained in this letter, we have reviewed those agreements, records, and documents as we have deemed relevant in order to render the opinions set forth herein, including the articles of incorporation and the bylaws of the Company in effect as of the date hereof and the Indenture in the form of Exhibits 4.07 and 4.08 to the Registration Statement to be executed by the Company and the trustee (the “Indenture”), pursuant to which debt securities may be issued.
As to certain questions of fact material to our opinions that we have not independently established, we have relied upon certificates from officers of the Company and upon certificates of public officials.
In rendering the following opinions, we have assumed: (a) all information contained in all documents reviewed by us is true and correct; (b) the genuineness of all signatures on all documents reviewed by us; (c) the authenticity and completeness of all documents submitted to us as originals; (d) the conformity to authentic originals of all documents submitted to us as certified or photostatic copies; (e) each natural person signing any document reviewed by us had the legal capacity to do so; and (f) each person signing in a representative capacity any document reviewed by us had authority to sign in such capacity.
KRUSE LANDA MAYCOCK & RICKS, LLC
FX Energy, Inc.
August 4, 2015
Page 2
___________________________________
Based on the foregoing, and subject to the assumptions, exceptions, and qualifications stated below, we are of the opinion that:
1. With respect to shares of Common Stock, when: (a) the Company’s Board of Directors (the “Board”) has taken all necessary corporate action to approve the issuance and the terms of the offering of the shares of Common Stock and related matters; and (b) certificates representing the shares of Common Stock have been duly executed, countersigned, registered, and delivered or such shares have been duly issued and delivered in certificateless form either: (i) in accordance with the applicable definitive purchase, underwriting, or similar agreement approved by the Board upon payment of the consideration therefor (not less than the par value of the Common Stock) provided for therein; or (ii) upon conversion or exercise of any other security, in accordance with the terms of such security or the instrument governing that security providing for the conversion or exercise as approved by the Board, for the consideration approved by the Board, then the shares of Common Stock will be duly authorized and validly issued, and the Common Stock will be fully paid and nonassessable.
2. With respect to shares of Preferred Stock, when both: (a) the Board has taken all necessary corporate action to approve the issuance and terms of the shares of Preferred Stock, the terms of the offering thereof, and related matters, including the adoption of a designation of rights, privileges, and preferences relating to such Preferred Stock (a “Designation”) and the filing of the Designation with the Nevada Secretary of State; and (b) certificates representing the shares of Preferred Stock have been duly executed, countersigned, registered, and delivered or such shares have been duly issued and delivered in certificateless form either: (i) in accordance with the applicable definitive purchase, underwriting, or similar agreement approved by the Board upon payment of the consideration therefor (not less than the par value of the Preferred Stock) provided for therein; or (ii) upon conversion or exercise of any other security, in accordance with the terms of such security or the instrument governing that security providing for the conversion or exercise as approved by the Board, for the consideration approved by the Board, then the shares of Preferred Stock will be legally issued, fully paid, and nonassessable.
3. With respect to the Warrants, when: (a) the Board has taken all necessary corporate action to approve the creation, issuance, and terms of the Warrants, the terms of the offering thereof, and related matters; (b) the warrant agreement or agreements relating to the Warrants have been duly authorized and validly executed and delivered by the Company and the warrant agent appointed by the Company; and (c) the Warrants or certificates representing the Warrants have been duly executed, countersigned, registered, and delivered or such Warrants have been duly issued and delivered in certificateless form in accordance with the appropriate warrant agreement or agreements and the applicable definitive purchase, underwriting, or similar agreement approved by the Board upon payment of the consideration therefor provided for therein, the Warrants will be legally issued and binding obligations of the Company.
4. With respect to Senior Debt Securities to be issued under the applicable Indenture, when: (a) the Indenture has been duly authorized and validly executed and delivered by the Company to the trustee; (b) the Indenture has been duly qualified under the Trust Indenture Act of 1939; (c) the Board has taken all necessary corporate action to approve the issuance and terms of such Senior Debt Securities, the terms of the offering thereof, and related matters; and (d) such Senior Debt Securities have been duly executed, authenticated, issued, and delivered or such securities have been delivered in certificateless form in accordance with the provisions of the Indenture and the applicable definitive purchase, underwriting, or similar agreement approved by the Board upon payment of the consideration therefor provided for therein, such Senior Debt Securities will be legally issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
KRUSE LANDA MAYCOCK & RICKS, LLC
FX Energy, Inc.
August 4, 2015
Page 3
___________________________________
5. With respect to Subordinated Debt Securities to be issued under the applicable Indenture, when: (a) the Indenture has been duly authorized and validly executed and delivered by the Company to the trustee; (b) the Indenture has been duly qualified under the Trust Indenture Act of 1939; (c) the Board has taken all necessary corporate action to approve the issuance and terms of such Subordinated Debt Securities, the terms of the offering thereof, and related matters; and (d) such Subordinated Debt Securities have been duly executed, authenticated, issued, and delivered or such securities have been delivered in certificateless form in accordance with the provisions of the Indenture and the applicable definitive purchase, underwriting, or similar agreement approved by the Board upon payment of the consideration therefor provided for therein, such Subordinated Debt Securities will be legally issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
____________________
The opinions expressed above are subject in all respects to the following assumptions, exceptions, and qualifications:
A. We have assumed that: (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and comply with all applicable laws; (ii) the Registration Statement will be effective and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement (if such offering or issuance requires the delivery of a prospectus under the Securities Act or pursuant to any other law); (iii) a Prospectus Supplement will have been prepared and filed with the Securities and Exchange Commission describing the Securities offered thereby and will comply with all applicable laws; (iv) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate Prospectus Supplement; (v) a definitive purchase, underwriting, or similar agreement with respect to any Securities offered or issued will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; and (vi) any Securities issuable upon conversion, exchange, or exercise of any security being offered or issued will be duly authorized, created, and if appropriate, reserved for issuance upon such conversion, exchange, or exercise.
B. In rendering the opinions in paragraphs 4 and 5, we have assumed that the trustee is, or at the time the Indenture is signed will be, qualified to act as trustee under the Indenture and that the trustee has or will have duly executed and delivered the Indenture.
C. The enforceability of the Indenture and provisions thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium, or other similar laws now or hereinafter in effect relating to or affecting enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). Principles of equity include concepts of materiality, reasonableness, good faith, and fair dealing and also the possible unavailability of specific performance or injunctive relief.
KRUSE LANDA MAYCOCK & RICKS, LLC
FX Energy, Inc.
August 4, 2015
Page 4
___________________________________
D. We express no opinion respecting: (i) the enforceability of provisions in the Indenture, any other agreement or instrument with respect to delay or omission of enforcement of rights or remedies, or waivers of notices or defenses, or waivers of benefits of, or other rights that cannot be effectively waived under, applicable laws; (ii) the enforceability of indemnification provisions to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities laws; or (iii) the enforceability of Sections 2.18, 11.07 and 14.11 of the Indenture.
E. We note that the Indenture by its terms currently provides that it will be governed by the laws of the state of Utah. We acknowledge that the terms of any Indenture or Warrant, when ultimately determined, may be governed by the laws of a jurisdiction other than the state of Utah or other than the domestic and foreign corporation laws of the state of Nevada. We express no opinion with respect to the laws of such other jurisdictions in rendering these opinions. We understand that the Company will obtain and file all necessary legal opinions when the jurisdiction applicable to the warrant is determined.
F. The opinions expressed in this letter are limited to the laws of the state of Utah, the domestic and foreign corporation laws of the state of Nevada, and the federal laws of the United States of America.
____________________
We consent to the filing of this opinion of counsel as Exhibit 5.01 to the Registration Statement. We also consent to the reference to this firm under the heading “Legal Opinions” in the Prospectus forming a part of the Registration Statement. In giving this consent, we do not admit that this firm is in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
This opinion is rendered on the date hereof, and we disclaim any duty to advise you regarding any changes in the matters addressed herein.
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Sincerely,
/s/ Kruse Landa Maycock & Ricks, LLC
KRUSE, LANDA MAYCOCK & RICKS, LLC
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