As filed with the Securities and Exchange Commission on June 19, 2002
Registration No. 333-87774
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
KFX INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 84-1079971
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or Organization)
Theodore Venners
3300 East First Avenue, Suite 290 3300 East First Avenue, Suite 290
Denver, Colorado 80206 Denver, Colorado 80206
(303) 293-2992 (303) 293-2992
(Address, Including Zip Code, and Telephone (Name, Address, Including Zip Code,
Number, Including Area Code, of and Telephone Number, Including
Registrant's Principal Area Code, of Agent For Service)
Executive Offices)
copy to:
Phyllis G. Korff, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
(212) 735-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration
Statement
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 delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Offering Proposed Maximum Amount of
Title of Each Class of Amount to be Price per Aggregate Registration
Securities to be Registered Registered(1) Unit(2) Offering Price Fee(3)
-------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value 10,054,100 $2.46 $24,733,086 $2,275.44
per share
(1) Pursuant to Rule 416 under the Securities Act, this registration
statement also covers such additional shares as may hereafter be
offered or issued to prevent dilution resulting from stock splits,
stock dividends, recapitalizations or certain other capital
adjustments.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act
of 1933, as amended, based on the average of the high and low
sales prices for a share of common stock as reported on the
American Stock Exchange on April 30, 2002.
(3) Fee previously paid.
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 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.
SUBJECT TO COMPLETION, DATED JUNE 19, 2002
PROSPECTUS
KFx Inc.
10,054,100 Shares of Common Stock
This prospectus relates to 10,054,100 shares of common stock,
$.001 par value per share, of KFx Inc., a Delaware corporation, which may
be offered from time to time by the selling stockholders named herein. The
shares include up to 5,203,950 shares of common stock issuable upon the
exercise of warrants. We will not receive any proceeds from the sale of the
common stock, rather, each of the selling stockholders will receive all of
the net proceeds from the sale of their respective common stock. We have
agreed with the selling stockholders that we will pay all expenses incident
to the registration of the common stock under the Securities Act of 1933,
as amended.
The selling stockholders may sell the shares of common stock
described in this prospectus in a number of different ways and at varying
prices. For additional information on the methods of sale, you should refer
to the section entitled "Plan of Distribution" beginning on page 15.
The common stock is listed for trading on the American Stock
Exchange under the symbol "KFX." On June 14, 2002, the last reported sale
price of the common stock was $2.51 per share.
Our corporate offices are located at 3300 East First Avenue, Suite
290, Denver, Colorado 80206. Our telephone number is (303) 293-2992.
---------------
Investing in our common stock involves substantial risks. See the
section entitled "Risk Factors" beginning on page 5.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation
to the contrary is a criminal offense.
---------------
The date of this prospectus is __, 2002
TABLE OF CONTENTS
Page Number
Section Title
Where You Can Find More Information............................... 3
KFx Inc........................................................... 4
Risk Factors...................................................... 5
Use of Proceeds................................................... 13
Selling Stockholders.............................................. 13
Plan of Distribution.............................................. 15
Forward-Looking Statements........................................ 16
Legal Matters..................................................... 17
Incorporation of Documents by Reference........................... 17
---------------
References in this prospectus to "KFx," "we," "us" or "our" refer to KFx Inc.
You should rely only on the information incorporated by reference
or provided in this prospectus and its supplement(s). We have not
authorized anyone to provide you with different information. You should not
assume that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front of those
documents. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy the securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such
jurisdiction.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission (the
"SEC") under the Exchange Act. The registration statement of which this
prospectus forms a part and these reports, proxy statements and other
information can be inspected and copied at the public reference room
maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the SEC's regional offices at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and at 233 Broadway,
New York, New York 10279. Copies of these materials may also be obtained
from the SEC at prescribed rates by writing to the public reference room
maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549. You may obtain information on the operation
of the public reference room by calling the SEC at 1-800-SEC-0330.
We have filed with the SEC a registration statement on Form S-3
under the Securities Act with respect to this offering. This prospectus,
which forms a part of the registration statement, does not contain all the
information included in the registration statement and the attached
exhibits.
The SEC maintains a World Wide Web site on the Internet at
http://www.sec.gov that contains reports, proxy and information statements
and other information regarding us. The reports, proxy and information
statements and other information about us can be downloaded from the SEC's
website and can also be inspected and copied at the offices of the American
Stock Exchange, Inc., 86 Trinity Place, New York, New York 10006.
KFX INC.
We are engaged in developing and delivering various technology and
service solutions to the electric power generation industry to facilitate
the industry's compliance with air emission standards and transformation to
intensive competition as the domestic power industry undergoes
deregulation.
Currently, we have technology solutions that enhance the output of
coal-fired electric utility boilers while simultaneously reducing the
related environmental impacts. The patented K-Fuel(R) Technology ("K-Fuel
Technology") uses heat and pressure to physically and chemically transform
high-moisture, low-energy value coal and other organic feedstocks into a
low-moisture, high-energy solid clean fuel ("K-Fuel"). We plan to license
K-Fuel Technology domestically and internationally to various parties
wishing to construct and operate K-Fuel production facilities.
In 1998, through the acquisition of a controlling interest in
Pegasus, we added NeuSIGHT(R) ("NeuSIGHT") to our solutions. NeuSIGHT is
the leading combustion optimization product for coal-fired electric utility
boilers, which, in addition to improving boiler efficiency, reduces NOX
emissions. NeuSIGHT is a neural network-based (i.e., artificial
intelligence) software technology. Pegasus developed NeuSIGHT and continues
to enhance NeuSIGHT, develop related products and market NeuSIGHT licenses
and related implementation services.
In 2001, Pegasus acquired certain assets and liabilities of the
Power Optimization Division of Pavilion Technologies, Inc. ("Pavilion"),
including the existing installed base, customer contact listing and
exclusive rights to license Pavilion's software in the electric utility
market. The primary Pavilion product is a neural network-based combustion
optimization product that previously competed with NeuSIGHT in the electric
utility market, but is considered complementary technology to NeuSIGHT.
RISK FACTORS
Our Historical Financial Performance and Current Financial Condition Raise
Substantial Doubt About Our Ability to Continue as a Going-Concern.
The opinion to our consolidated financial statements contains an
explanatory paragraph regarding our ability to continue as a going concern.
Accordingly, our financial statements for the year ended December 31, 2001,
which are incorporated in this prospectus by reference to our current
report on Form 8-K dated June 18, 2002, have been prepared on a going
concern basis, which contemplates the realization of assets and the
satisfaction of liabilities in the normal course of business. Our
historical financial performance, obligations coming due over the next 12
months and the need for additional financing to fund planned growth in the
business raise substantial doubt about whether the Company can continue as
a going concern. By selling our 6% convertible debentures in July 1997, we
incurred $17,000,000 in principal amount of indebtedness. Through April 30,
2002, holders of $13,840,000 in principal amount of these debentures have
exercised their conversion rights and converted their debentures into
4,474,089 shares of KFx Common Stock. At April 30, 2002, the outstanding
principal amount of these debentures totaled $3,160,000. If the debentures
are not converted into common stock before they mature on July 31, 2002,
interest at an annual rate of 6% plus a maturity premium of 12%, for a
total of $474,000, in addition to the principal of $3,160,000, will be due
at that time. Due to our need for cash and the current restraints on our
ability to raise capital, it is currently not probable that these
obligations will be satisfied.
We Need Additional Capital to Fund Our Business
We require substantial working capital to fund our business. At
March 31, 2002, we had a working capital deficit of $14,645,690, an
accumulated deficit of approximately $89,889,000 and a stockholders'
deficit of approximately $12,706,000. We have incurred losses approximating
$15,177,000, $12,290,000 and $12,730,000 in 2001, 2000 and 1999,
respectively, and $3,621,000 during the first three months of 2002. We have
experienced negative operating cash flow approximating $6,738,000,
$5,151,000 and $3,458,000 in 2001, 2000 and 1999, respectively, and
$1,454,000 during the first three months of 2002. We expect to incur net
losses and negative operating cash flows in 2002. We cannot assure you that
we will ever achieve profitability, or be able to generate earnings
sufficient to meet our interest and principal payment obligations. As a
result, we have been and continue to be very dependent on strategic
relationships, sales of our debt and equity securities and short-term loans
from our directors and third parties to fund the operating costs associated
with our businesses.
Capital Raising Resulted In Our Granting of a Put Option
As of December 31, 2001, a total of $5,000,000 was due to Pavilion
during 2002 for installment payments on the purchase of the Power
Optimization Division. In March 2002, the Asset Purchase and License
Agreement was renegotiated and amended to reduce the total remaining base
purchase price payments to $4,500,000, with the entire payment due by March
28, 2002. On March 28, 2002, the Company issued 2 million shares of common
stock at a price of $2.50 per share and warrants, expiring eight years
after the date of issuance, exercisable for an aggregate of 2.25 million
shares of KFx common stock, at a price of $2.75 per share, subject to
certain adjustments, to a group of institutional investors, resulting in
proceeds to the Company of $5 million. On April 30, 2002, the Company
issued an additional 2.4 million shares of common stock at a price of $2.50
per share and additional warrants, expiring eight years after the date of
issuance, exercisable for an aggregate of 2.7 million shares of KFx common
stock, at a price of $2.75 per share, subject to certain adjustments, to
the same group of institutional investors, resulting in proceeds to the
Company of $6 million. The common stock issued to the institutional
investors in the March 2002 and April 2002 issuances is subject to
redemption pursuant to a put option, in whole or in part, at the option of
the investors. The put option is exercisable upon the earlier of July 31,
2002 or upon the redemption or conversion of all of the Convertible
Debentures. At the time the investors notify KFx of their intent to
exercise the put option, KFx must repurchase the common stock at a price of
$2.50 per share plus accrued interest ("Redemption Value") within 100 days
of notification. Interest for purposes of redemption accrues at the rate of
9% per annum, beginning upon the original issuance date of the common stock
and ceases on the date on which the common stock is repurchased. If
two-thirds or more of the investors notify KFx of their plan to exercise
their put option and KFx is unable to secure the necessary funding to
satisfy these exercised put options within 100 days of notification, then
KFx would be required to transfer its interests in Pegasus to the
investors. The put option expires on December 23, 2002. As a result of the
put option, the common stock issued to the investors will be classified as
redeemable common stock in the mezzanine level of the consolidated balance
sheet. Until the put option expires, the Company is precluded from issuing,
selling, transferring or pledging any of its interest in Pegasus and
Pegasus is precluded from transferring any rights with respect to its
equity and assets without approval of at least two-thirds of the investors.
Per the terms of the investment agreement, the proceeds of this investment
were first used to complete the payments of the remaining purchase price
for the Pavilion Power Optimization Division acquisition.
We Need Additional Capital to Pay Interest, Premium and Principal on Our 6%
Convertible Debentures Which Mature on July 25, 2002
We will require substantial amounts of cash to fund scheduled
payments of principal, interest and maturity premium on our 6% convertible
debentures. In addition, substantial cash will be required to fund working
capital requirements and capital expenditures. We may also need substantial
amounts of cash to repurchase redeemable common stock and the common shares
that could be put back to the Company under the terms of the March 28, 2002
and April 30, 2002 agreements to sell common stock. We will be required to
raise additional funds through public or private financings, strategic
relationships or other arrangements. We currently do not have any
commitments with respect to any funding. We cannot be assured that such
additional funding will be available at all or on terms satisfactory to us.
A lack of adequate financing may adversely affect our ability to:
o make necessary interest and principal payments on our indebtedness;
o respond to changing business and economic conditions and competitive
pressures;
o absorb negative operating results; or
o fund capital expenditures or increased working capital requirements.
The Company intends to seek further capital through various means
which may include the sale of a portion of its interest in Pegasus,
additional sales of debt or equity securities, a business combination, or
other means and to further reduce expenditures as necessary. Should the
Company not be successful in achieving one or more of these actions, it is
possible that the Company may not be able to continue as a going concern.
We May Be Required to Sell Our Interest in Pegasus if More Than Two-Thirds
of the Outstanding Put Options Held by Some of Our Investors are Exercised
at One Time and We Are Unable to Secure the Necessary Funding to Satisfy
Those Options Within the Time Permitted
On March 28, 2002, we issued 2 million shares of our common stock
and warrants to purchase 2.25 million shares of our common stock. On April
30, 2002, we issued an additional 2.4 million shares of our common stock
and warrants to purchase 2.7 million shares of our common stock. The common
stock issued in these two transactions is subject to redemption pursuant to
a put option, in whole or in part, at the option of the investors. The put
option is exercisable upon the earlier of July 31, 2002 or upon the
redemption or conversion of all of the Company's 6% Convertible Debentures
due July 31, 2002. At the time the investors notify us of their intent to
exercise the put option, we must repurchase the common stock at a price of
$2.50 per share plus accrued interest within 100 days of notification. If
two-thirds or more of the investors notify us of their plan to exercise
their put option and we are unable to secure the necessary funding to
satisfy these exercised put options within 100 days of notification, then
we would be required to transfer our interests in Pegasus to the investors.
The put option expires on December 23, 2002. Until the put option expires,
we are precluded from issuing, selling, transferring or pledging any of our
interests in Pegasus and Pegasus is precluded from transferring any rights
with respect to its equity and assets without approval of at least
two-thirds of the investors.
We Will Be Required to Issue Additional Warrants to Some of Our
Stockholders If the Securities and Exchange Commission (the "SEC") Does Not
Declare this Registration Statement Effective by June 21, 2002
On March 28, 2002, we issued 2 million shares of our common stock
and warrants exercisable for an aggregate of 2.25 million shares of our
common stock. On April 30, 2002, we issued an additional 2.4 million shares
of our common stock and warrants exercisable for an aggregate of 2.7
million shares of our common stock. Under the terms of an amended and
restated investor's rights agreement, dated as of April 30, 2002, if the
SEC does not declare this registration statement effective by June 21,
2002, we will be required to issue warrants to acquire that number of
shares of common stock equal to ten percent (10%) of the number of shares
of common stock issuable on exercise of the warrants issued to each
investor that acquired warrants in the March 28 and April 30 transactions.
Based upon the warrant conversion rates in effect on April 30, 2002, if
this registration statement is not declared effective by June 21, 2002, we
would be required to issue additional warrants exercisable for an aggregate
of 495,000 shares of our common stock.
We Have Not Consistently Achieved Significant K-Fuel related Revenue Since
Our Inception
We have not consistently achieved material K-Fuel licensing,
royalty or product sales revenues since we were formed in 1988. In
addition, no significant K-Fuel related revenue was earned prior to our
formation when similar operations to our K-Fuel segment were conducted by
various predecessor entities.
We Have Contractual Limitations on Our Ability to Secure Additional Funding
Our ability to secure additional financing is limited by the terms
of the indenture related to our 6% convertible debentures, which precludes
secured borrowings, except in limited circumstances, limits unsecured
borrowings, causes additional dilution to our shareholders if we sell our
own equity securities at prices below the $2.50 per share conversion price
of the debentures, limits our ability to sell assets and enter into merger
agreements and places various other restrictions on our ability to raise
debt or equity capital. Our ability to secure additional financing is also
limited by the fact that, until the put option relating to the March 28,
2002 and April 30, 2002 sales of common stock expires, we are precluded
from issuing, selling, transferring or pledging any of our interest in
Pegasus and Pegasus is precluded from transferring any rights with respect
to its equity and assets without approval of at least two-thirds of the
investors who purchased KFx common stock on March 28, 2002 and April 30,
2002, collectively, as stated above.
We Rely on Strategic Partners
Kennecott Energy has been a strategic partner in the development
of K-Fuel technology since early 1996 and also became a strategic partner
in Pegasus in early 2000. Our success will depend upon our ability to
maintain existing strategic relationships with Kennecott Energy and others
and develop and maintain additional relationships for the further
development of our technologies. We are and will continue to be dependent
upon our strategic partners to, among other things, fund the operations of
the partnerships or the joint venture entities in which we own interests
and to provide necessary technical, operational, personnel and other
resources. While each of our strategic partners has an economic motivation
to further the development of its respective joint venture or project with
us, the amount of time and resources devoted to these joint ventures or
projects will be controlled by our strategic partners and not by us. A
decline in the financial prospects of a particular strategic partner could
adversely affect such partner's commitment to a joint venture, which could
materially harm us. Moreover, joint ventures or similar arrangements
require us to have financial and other arrangements to meet our commitments
to the joint ventures. We cannot assure you that we will be able to
maintain existing strategic relationships, develop or maintain additional
strategic relationships, meet our commitments with respect to our joint
ventures or that our strategic partners will meet their commitments to any
respective joint venture or project.
It Is Difficult to Evaluate Our Business and Prospects Because We Added the
Development of Pegasus to Our Strategic Focus. Until 1998, Our Focus Had Been
on the Development of K-Fuel
In August 1995, we commenced the initial application of our K-Fuel
technology and began construction of a facility near Gillette, Wyoming, to
produce K-Fuel. Until early 1998, our primary business was developing,
licensing and commercializing a patented technology that, in general, uses
heat and pressure to physically and chemically transform high-moisture,
low-energy per pound coal and other organic feedstocks into a low-moisture,
high-energy solid fuel known as K-Fuel. Operations at the KFP Facility
began in the second quarter of 1998, but were suspended in the second
quarter of 1999. In March 1998 we acquired, through our purchase of a
controlling ownership interest in Pegasus, the software product NeuSIGHT.
Accordingly, we have a limited operating history upon which an evaluation
of our prospects and future performance can be made. Although we continue
to believe that K-Fuel technology has significant long-term value, we
believe that the software business of Pegasus offers more near term growth
opportunity. Our prospects must be considered in light of the risks,
expenses and difficulties frequently encountered in the operation of a new
business based on innovative technologies in a highly competitive and
evolving industry.
The Market for Software in Connection with the Efficiency of the Combustion of
Coal Is New and Uncertain
Combustion and other optimization software relating to the
production of coal or other similar products has only been used by the
electric power business for a few years. We believe that market pressures
caused by the developing deregulation of the electric power industry and
the Clean Air Act, as amended, will accelerate demand for and market
acceptance of combustion optimization and related software products being
developed at Pegasus. There can be no assurance, however, that these
software products will experience growth or market acceptance.
The Market for NeuSIGHT and Related Software Depends on Successful Sales and
Marketing Strategies and Product Improvement Strategies
The market for Pegasus combustion optimization and related
software is uncertain. In our opinion, realization of near term value from
the software business of Pegasus requires, among other things, the
successful implementation of new sales and marketing programs. We cannot
assure you that our sales and marketing strategies for Pegasus combustion
optimization and related software will continue to be successful.
Additionally, we believe that increased market acceptance of
Pegasus software is dependent, in part, on our ability to simplify and
streamline its installation process. Product improvements directed at this
objective have been made and new versions of NeuSIGHT were released to the
market in late 1999 and again in late 2000. We will continue to evaluate
additional improvements for development. We cannot assure you that our
efforts to further improve Pegasus software products to more fully meet our
objectives will be successful.
No Established Market for Beneficiated Fuel Products Exists
Although we believe that a substantial market will develop both
domestically and internationally for clean coal fuel products, an
established market does not currently exist. As a result, the availability
of accurate and reliable pricing information and transportation
alternatives is not fully known. The future success of our K-Fuel
technology will depend on our ability to establish a market for clean coal
fuel products among potential customers such as electrical utility
companies and industrial coal users. Further, potential users of our fuel
products may be able to choose among alternative fuel supplies. The market
viability of the K-Fuel technology will not be known until we complete
construction of one or more commercial-scale production facilities, either
in the United States or internationally, that produce, on a consistent
basis, commercial quantities of fuel and meet certain minimum performance
specifications. We face the risk that commercial-scale production
facilities when completed will be unable to generate sufficient market
interest to continue in business. Further, we cannot assure you that any
commercial-scale K-Fuel facility will be successful.
Deregulation in the United States Power Industry May Result in Increased
Competition for Our Products
We expect that deregulation in the United States power industry
will result in utilities and other power generators placing a high emphasis
on reducing costs in their operations. This situation may, in turn, result
in increased competition from other producers of beneficiated coal
products, other clean fuel sources, other developers of combustion
optimization software and other products, services and technologies
designed to provide environmental and operating cost benefits similar to
those which we believe are available from our K-Fuel technology and
Pegasus' combustion optimization technology and related software.
Our Markets Are Competitive
We face competition from other companies in the clean coal and
alternative fuel technology industries as well as the emission control
equipment industry. Many of these companies have financial and managerial
resources much greater than ours and, therefore, may be able to offer
products more competitively priced and more widely available than ours.
Also, competitors' products may make our technology and products obsolete
or non-competitive. Our future success may depend on our ability to adapt
to such changing technologies and competition.
We Are Subject to Risks of Changing Laws
A significant factor driving the creation of the United States
market for K-Fuel, other beneficiated coal products, Pegasus combustion
optimization and related software products is the Clean Air Act, as
amended, which specifies various air emission requirements for electrical
utility companies and industrial coal users. We believe that compliance
with the air emission regulations by these coal users can be fully or
partially met through the use of clean-burning fuel technologies, like
K-Fuel, and combustion optimization software, like NeuSIGHT and Power
Perfecter. We are unable to predict future regulatory changes and their
impact on the demand for our products. A full or partial repeal or revision
of the Clean Air Act, as amended, would have a material adverse effect on
our prospects.
Our Inability to Adequately Protect Our Proprietary Technology Could Harm
Our Business
Our success depends upon our proprietary technology. We rely on a
combination of patent, copyright, trademark and trade secret rights to
establish and protect our proprietary rights. We currently have a series of
patents on our K-Fuel technology, however, competitors may successfully
challenge the validity or scope of one or more of our patents or any future
allowed patents. These patents alone, our trade secret rights with respect
to NeuSIGHT and indemnification by the licensors of various Pegasus
software products may not provide us with any significant competitive
advantage.
Third parties could copy or otherwise obtain and use our products
or technology without authorization or develop similar technology
independently. We cannot easily police unauthorized use of our
technologies. The protection of our proprietary rights may be inadequate
and our competitors could independently develop similar technology,
duplicate our solutions or design around any patents or other intellectual
property rights we hold.
As is common in the software industry, we may, from time to time
receive notices from third parties claiming infringement by our NeuSIGHT
product or similar software of third party patent and other property
rights.
We Rely on Key Personnel and Must Be Able to Retain or Attract Qualified
Personnel
We believe that our performance is substantially dependent on the
performance of a small group of senior managers and key technical
personnel. The inability to retain key managerial and technical personnel
or attract and retain additional highly qualified managerial or technical
personnel in the future could harm our business or financial condition.
Technical and Operational Problems May Adversely Impact Our Ability to Develop
K-Fuel Projects or Facilities
We cannot assure you that any K-Fuel facilities under
consideration by Kennecott Energy or third parties will not experience
technical or operational problems similar or in addition to those
experienced at the KFP Facility. To the extent that other technical or
operational problems materialize, our ability to develop other K-Fuel
projects or facilities would be jeopardized.
Local Opposition to K-Fuel Projects Could Substantially Delay or Prevent
Development of New K-Fuel Facilities
Development, construction and operation of K-Fuel production
facilities require numerous environmental and other permits. The process of
obtaining these permits can be lengthy and expensive. In addition, local
opposition to a particular project can substantially increase the cost and
time associated with developing a project, and can, potentially, render a
project unfeasible or uneconomical. Kennecott Energy or others that may
consider the development of K-Fuel facilities may incur substantial costs
or delays or may be unsuccessful in developing K-Fuel production facilities
as a result of such opposition.
Our General Project Development Is Uncertain
The process of developing, permitting, financing and constructing
K-Fuel production facilities is complex, lengthy and costly and subject to
numerous risks, uncertainties and factors beyond our control, including
cost overruns, delays, damage and technical delays. Only a small percentage
of the projects that are considered and pursued, by us, Kennecott Energy or
other third parties, may ultimately result in operating projects that are
sufficiently successful to provide us with license fee income, royalty fee
income and/or equity participation income. As a result, we may not be able
to recover any expenses that we incur in the evaluation and development of
certain projects.
A Significant Portion of the Potential of the K-Fuel and Pegasus Businesses
Is Subject to International Risks
Although our current operations are primarily in the United
States, we believe a significant portion of the growth opportunity for both
our Pegasus and K-Fuel businesses lies outside the United States. Doing
business in foreign countries exposes us to many risks that are not present
in the United States and with which we lack significant experience,
including political, military, privatization, technology piracy, currency
exchange and repatriation risks, and higher credit risks associated with
customers. In addition, it may be more difficult for us to enforce legal
obligations in foreign countries and we may be at a disadvantage in any
legal proceeding within the local jurisdiction. Local laws may also limit
our ability to hold a majority interest in the projects that we develop.
Our Ability to Take Advantage of Net Operating Losses if We Achieve
Profitability Could be Limited
Under Section 382 of the Internal Revenue Code ("IRC"), the use of
prior net operating losses is limited after an "ownership change," as
defined in Section 382. The limitation, if applicable, is equal to the
value of the loss corporation's outstanding stock immediately before the
date of the ownership change multiplied by a long-term interest rate
specified by the IRC. The quoted market value of a stock is a factor to
consider, but not necessarily a conclusive factor, in determining the fair
value of a corporation's stock. Additional issuances of equity interests by
us, including the issuance of shares of common stock upon the conversion of
our 6% convertible debentures or on the exercise of outstanding warrants or
options to purchase our common stock may result in an ownership change that
is large enough to trigger the Section 382 limitations. In the event we
achieve profitable operations and taxable income, any significant
limitation on the use of our net operating losses to offset taxable income
would have the effect of increasing our tax liability and reducing net
income and available cash resources.
We Are Required to Pay Third Parties a Significant Portion of Licensing and
Royalty Revenues
We anticipate that a significant portion of our future revenues
with respect to K-Fuel will be in the form of licensing and royalty
payments from third party licensees operating commercial-scale production
facilities of K-Fuel. Pursuant to various agreements we have executed, we
are required to pay third parties a substantial portion of licensing and
royalty revenues that we receive. The Estate of Edward Kippelmen is
entitled to 25 percent of all license fees and royalties, with a maximum of
approximately $75.2 million, Fort Union Ltd. is entitled to 20 percent of
royalties from production in the United States, Canada and Mexico, not to
exceed $1.5 million, and Ohio Valley Electric is entitled to 0.5 percent of
royalties derived from the sale of K-Fuel. Amounts due under these
agreements may restrict or limit our ability to pursue other
commercialization opportunities with respect to K-Fuel because such
payments will decrease cash flow from operations.
Our Common Stock Could be Delisted from the American Stock Exchange
("Amex") if We Do Not Comply with the Amex Continued Listing Standards.
Our common stock is listed on the Amex and to maintain our listing
we must meet certain continued listing standards. Specifically, pursuant to
Section 1003(a)(ii) of the Amex Company Guide, the Amex will consider
delisting a company that has stockholders' equity of less than $4 million
if such company has sustained losses from continuing operations and/or net
losses in three of its four most recent fiscal years. At December 31, 2001,
our stockholders' deficit was approximately $14 million and we sustained
net losses for three consecutive fiscal years. If we do not increase our
stockholders' equity to meet this continued listing standard, our common
stock may be delisted. Although we will develop and pursue a plan to meet
the continued listing requirements, there can be no assurance that our
common stock will remain listed on the Amex. If our common stock were
delisted from the Amex for any reason, it would reduce our liquidity and
could seriously reduce the value of our common stock, reduce our ability to
raise additional financing, limit our use of equity instruments to satisfy
outstanding obligations and limit our ability to attract qualified
employees.
If Our Common Stock is Deemed to be "Penny Stock," Compliance With the Penny
Stock Regulations May Adversely Affect the Market for Our Common Stock
Our common stock may, at some future time, be deemed to be "penny
stock" as that term is defined in Rule 3a51-1 of the Exchange Act of 1934
and would be subject to additional disclosure requirements for penny stocks
mandated by the Securities Enforcement Remedies and Penny Stock Reform Act
of 1990. The SEC regulations generally define a penny stock to be an equity
security that has a market price of less than $5.00 per share and is not
quoted in the National Association of Securities Dealers' Automated
Quotation system (Nasdaq) or is not registered on a national securities
exchange.
If our common stock were deemed a penny stock, section 15(g) and
Rule 3a51-1 of the Exchange Act of 1934 would require broker-dealers
dealing in our common stock to provide potential investors with a document
disclosing the risks of penny stocks and to obtain a manually signed and
dated written receipt of the document before effecting any transaction in a
penny stock for the investor's account. Potential investors are urged to
obtain and read such disclosure carefully before purchasing any shares that
are deemed to be "penny stock."
Moreover, Rule 15g-9 of the Exchange Act of 1934 Commission
requires broker-dealers in penny stocks to approve the account of any
investor for transactions in such stocks before selling any penny stock to
that investor. This procedure requires the broker-dealer to:
o obtain from the investor information concerning his or her
financial situation, investment experience and investment
objectives;
o reasonably determine, based on that information, that transactions
in penny stocks are suitable for the investor and that the
investor has sufficient knowledge and experience as to be
reasonably capable of evaluating the risks of penny stock
transactions;
o provide the investor with a written statement setting forth the
basis on which the broker-dealer made the determination in (ii)
above; and
o receive a signed and dated copy of such statement from the
investor, confirming that it accurately reflects the investor's
financial situation, investment experience and investment
objectives.
If our common stock were deemed a penny stock, compliance with
these requirements may make it more difficult for investors in our common
stock to resell their shares to third parties or to otherwise dispose of
them.
We Do Not Pay Cash Dividends
We have never paid any cash dividends and do not anticipate paying
cash dividends in the foreseeable future. In addition, we are prohibited
from paying dividends as long as any of our 6% convertible debentures are
outstanding.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares by
the selling stockholders.
SELLING STOCKHOLDERS
This prospectus relates to the offer and sale from time to time of
up to 10,054,000 shares of common stock by the selling stockholders in the
manner and under the circumstances described under "Plan of Distribution."
The shares include up to 5,203,950 shares of common stock issuable upon the
exercise of warrants. There can be no assurance that the selling
stockholders will sell any or all of their common stock offered by this
prospectus. We do not know if, when, or in what amount the selling
stockholders may offer the common stock for sale.
The following table sets forth:
o the names of the selling stockholders;
o any relationship they may have had with us during the last three
years;
o the number of shares of common stock owned by each of the selling
stockholders;
o the number of shares of common stock being offered by the selling
stockholders in this prospectus; and
o the number of shares of common stock held by the selling
stockholders and (if 1% or more) the percentage of the class of
common stock owned by each of the selling stockholders after the
completion of the offering described in this prospectus.
This table is based on information furnished to us by or on behalf
of the selling stockholders and for purposes of presenting beneficial
ownership data in the table, we have assumed that the selling stockholders
sell all of the shares offered under this prospectus and that no selling
stockholder acquires additional shares after the date on the cover page of
this prospectus. As of June 15, 2002, there were 35,115,879 shares of our
common stock outstanding.
COMMON STOCK PERCENTAGE
BENEFICIALLY COMMON STOCK COMMON STOCK TO OF ALL
OWNED AS OF OFFERED IN THIS BE OWNED AFTER COMMON
NAME APRIL 30, 2002(1) PROSPECTUS THIS OFFERING(2) STOCK(3)
---- ----------------- --------------- ----------------- --------
Jefferies & Company, Inc.(4) 996,699 282,900 713,799 2.03%
Credit Agricole Indosuez (Suisse) SA 100,000 100,000 0 --
Eastgate Management Corporation 212,500 212,500 0 --
Westcliff Aggressive Growth, L.P. 124,612 124,612 0 --
Westcliff Energy Partners, L.P. 498,514 498,514 0 --
Westcliff Partners, L.P. 289,633 289,633 0 --
Westcliff Long/Short, L.P. 82,950 82,950 0 --
Westcliff Public Ventures Fund, L.P. 858,889 858,889 0 --
Westcliff Small Cap Fund, L.P. 100,808 100,808 0 --
Cancer Center of Santa Barbara 70,707 70,707 0 --
Westcliff Master Fund, L.P. 666,479 666,479 0 --
Parker Foundation 138,826 138,826 0 --
Palm Trust 126,554 126,554 0 --
University of San Francisco 140,044 140,044 0 --
Westcliff Foundation 66,123 66,123 0 --
Westcliff Profit Sharing and Money
Purchase Pension Plan 19,916 19,916 0 --
Noranda Finance, Inc. Retirement Plan
for Affiliated Companies Trust 1,174,645 1,174,645 0 --
Peninsula Fund, L.P. 569,500 569,500 0 --
Common Sense Partners, L.P. 280,500 280,500 0 --
Ram Trading, Ltd. 4,250,000 4,250,000 0 --
TOTAL 10,767,899 10,054,100 713,799 2.03%
----------------
1. Includes shares issuable upon exercise of warrants.
2. Assumes that the selling stockholders will sell all shares of
common stock offered by them under this prospectus.
3. For each selling stockholder, this number represents the
percentage of common stock to be owned by such selling stockholder
after completion of the offering, based on the number of shares of
common stock outstanding as of May 2, 2002 (35,115,879 shares) and
assuming (i) all warrants held by such selling stockholder have
been converted or exercised, as applicable, and (ii) none of the
warrants held by other persons have been converted or exercised,
as applicable.
4. Jefferies & Company, Inc. has acted as investment banker for the
Company commencing November 2001.
PLAN OF DISTRIBUTION
We are registering the shares of common stock covered by this
prospectus on behalf of the selling stockholders. The "selling
stockholders" as used in this section of the prospectus shall refer to the
selling stockholders, or their pledgees, donees, transferees, or any of
their successors in interest. All costs, expenses and fees in connection
with the registration of the shares offered hereby will be borne by us.
Brokerage commissions and similar selling expenses, if any, attributable to
the sale of shares will be borne by the selling stockholders. Sales of
shares may be effected by the selling stockholders from time to time in one
or more types of transactions (which may include block transactions) on the
American Stock Exchange or any other organized market or quotation system
where the shares may be traded, in the over-the-counter market, in
transactions otherwise than on the American Stock Exchange or any other
organized market or quotation system where the shares may be traded or the
over-the-counter market, in negotiated transactions, through put or call
options transactions relating to the shares, through short sales of shares,
or a combination of such methods of sale, at market prices prevailing at
the time of sale, or at negotiated prices. The shares may also be
transferred pursuant to a gift or pledge. Such transactions may or may not
involve brokers or dealers. Each of the selling stockholders has advised us
that it has not entered into any agreements, understandings or arrangements
with any underwriters or broker-dealers regarding the sale of their
securities, nor is there an underwriter or coordinating broker acting in
connection with the proposed sale of shares by the selling stockholders.
The selling stockholders may effect such transactions by
selling shares directly to purchasers or to or through broker-dealers,
which may act as agents or principals. Such broker-dealers may receive
compensation in the form of discounts, concessions, or commissions from the
selling stockholders and/or the purchasers of shares for whom such
broker-dealers may act as agents or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions).
The selling stockholders may enter into hedging transactions.
For example, the selling stockholders may, among other things:
o enter into transactions involving short sales of the shares by
broker-dealers;
o sell the shares themselves and deliver the shares registered
hereby to settle such short sales or to close out stock loans
incurred in connection with their short positions;
o enter into options or other transactions with broker-dealers or
other financial institutions which require the delivery to such
broker-dealer or other financial institution of shares offered
hereby, which shares such broker-dealer or other financial
institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction);
o loan or pledge the shares to a broker-dealer or other person, who
may sell the loaned shares or, in the event of default, sell the
pledged shares; or
o any combination of the foregoing.
Because the selling stockholders may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act,
the selling stockholders will be subject to the prospectus delivery
requirements of the Securities Act, which may include delivery through the
facilities of the American Stock Exchange pursuant to Rule 153 under the
Securities Act. We have informed the selling stockholders that the
anti-manipulative provisions of Regulation M promulgated under the Exchange
Act may apply to their sales in the market.
The selling stockholders also may resell all or a portion of the
shares in open market transactions in reliance upon and in compliance with
Rule 144 under the Securities Act.
Upon being notified by a selling stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of
shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, we will file a
supplement to this prospectus, if required, pursuant to Rule 424(b) under
the Securities Act, disclosing:
o the name of such selling stockholder and of the part icipating
broker-dealer(s);
o the number of shares involved;
o the price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
o that such broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus; and
o other facts material to the transaction.
FORWARD-LOOKING STATEMENTS
Certain matters discussed in this prospectus, excluding historical
information, include forward-looking statements -- statements that discuss
our expected future results based on current and pending business
operations. We make these forward-looking statements in reliance on the
safe harbor protections provided under the Private Securities Litigation
Reform Act of 1995.
Forward-looking statements can be identified by words such as
"anticipates," "believes," "expects," "planned," "scheduled" or similar
expressions. Although we believe these forward-looking statements are based
on reasonable assumptions, statements made regarding future results are
subject to a number of assumptions, uncertainties and risks that could
cause future results to be materially different from the results stated or
implied in this prospectus. Additional information about issues that could
lead to material changes in performance is contained in our Annual Report
on Form 10-K/A for the year ended December 31, 2001, which is incorporated
by reference in this prospectus.
LEGAL MATTERS
Certain legal matters relating to the common stock to be offered
by this prospectus will be passed upon for us by Skadden, Arps, Slate,
Meagher & Flom LLP.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" certain of our
publicly filed documents into this prospectus, which means that information
included in these documents is considered part of this prospectus. The
following documents filed by us with the SEC are incorporated by reference
into this prospectus:
o our annual report on Form 10-K/A for the year ended December 31,
2001, excluding the company's consolidated financial statements
for the year ended December 31, 2001, which have been filed on our
current report on Form 8-K dated June 18, 2002;
o our quarterly report on Form 10/Q for the quarter ended March 31,
2002;
o our current report on Form 8-K dated April 2, 2002;
o our current report on Form 8-K/A dated May 3, 2002;
o our current report on Form 8-K dated May 7, 2002;
o our current report on Form 8-K/A dated May 20, 2002;
o our current report on Form 8-K dated June 18, 2002;
o our current reports on Forms 8-K/A dated June 18, 2002 (two filed
on this date); and
o the description of our common stock contained in the Registration
Statement on Form 10-SB filed with the SEC on July 11, 1994.
All documents filed by us with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act after the date of this
prospectus and prior to the termination of the offering covered by this
prospectus will be deemed to be incorporated by reference into this
prospectus and to be a part of the prospectus from the date of filing of
such documents. Any statement contained in this prospectus or in any
document incorporated or deemed to be incorporated by reference into this
prospectus shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein or in any
other subsequently filed document which 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 this prospectus.
We will provide, without charge to each person to whom this
prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the information that has been or may be incorporated
by reference in this prospectus, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference into such
documents). Such requests should be directed to
KFx Inc.
3300 East First Avenue, Suite 290
Denver, Colorado 80206
Attention: Corporate Secretary
Telephone: (303) 293-2992
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, payable by
the registrant in connection with the sale of the shares of common stock
being registered. All amounts are estimates except the Securities and
Exchange Commission registration fee.
Legal fees and expenses $ 25,000.00
Accounting fees and expenses $ 7,000.00
SEC registration fee $ 2,275.44
Miscellaneous expenses $ 2,000.00
-----------
Total $ 36,275.44
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law, or DGCL,
allows a corporation, in its original certificate of incorporation or an
amendment thereto, to eliminate or limit the personal liability of a
director for violations of the director's fiduciary duty, except where the
director breached his duty of loyalty, failed to act in good faith, engaged
in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase or redemption in
violation of the DGCL or obtained an improper personal benefit.
Section 145 of the DGCL empowers a Delaware corporation to
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of such corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. The indemnity may include
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding, provided that such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such
person's conduct was unlawful. A Delaware corporation may indemnify
directors, officers, employees and other agents of such corporation in an
action by or in the right of a corporation under the same conditions
against expenses (including attorney's fees) actually and reasonably
incurred by the person in connection with the defense and settlement of
such action or suit, except that no indemnification is permitted without
judicial approval if the person to be indemnified has been adjudged to be
liable to the corporation. Where a present or former director or officer of
the corporation is successful on the merits or otherwise in the defense of
any action, suit or proceeding referred to above or in defense of any
claim, issue or matter therein, the corporation must indemnify such person
against the expenses (including attorneys' fees) which he or she actually
and reasonably incurred in connection therewith.
Section 174 of the DGCL provides, among other things, that a
director who willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption, may be held liable
for such actions. A director who was either absent when the unlawful
actions were approved or dissented at the time, may avoid liability by
causing his or her dissent to such actions to be entered into the books
containing the minutes of the meetings of the board of directors at the
time such action occurred or immediately after such absent director
receives notice of the unlawful acts.
We have implemented indemnification provisions in our certificate
of incorporation, providing that officers and directors shall be entitled
to be indemnified by us to the fullest extent permitted by law against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement incurred in connection with any action, suit or proceeding by
reason of the fact that he or she is or was an officer or director of us.
The above discussion of our certificate of incorporation and
Sections 102, 145 and 174 of the DGCL is not intended to be exhaustive and
is qualified in its entirety by such certificate of incorporation and
statutes.
Under Section 145(g) of the DGCL, we maintain insurance on behalf
of the directors and officers serving at our request.
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as part of this
Registration Statement, including those incorporated by reference.
EXHIBIT
NUMBER DESCRIPTION
4.1** Sample Common Stock Certificate
4.2(1) Indenture dated July 25, 1997 by and between the Company and
Colorado National Bank
4.7(2) Statement Respecting Rights of Series B Preferred Stock of
Pegasus Technologies, Inc.
4.8(2) Statement Respecting Rights of Series C Preferred Stock of
Pegasus Technologies, Inc.
5.1** Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23.1* Consent of Independent Accountants
23.2** Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included
in Exhibit 5.1).
24.1** Powers of Attorney (included in the signature page of this
Registration Statement).
----------------------
* Filed herewith.
** Previously filed.
(1) Document previously filed with the Securities and Exchange
Commission with the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 and incorporated herein by reference.
(2) Document previously filed with the Securities and Exchange
Commission with the Company's Annual Report on Form 10-K for the
year ended December 31, 2000 and incorporated herein by reference.
ITEM 17. UNDERTAKINGS
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) of 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 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.
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. 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) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act of
1934 that are incorporated by reference 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 that remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 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 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 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.
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 Amendment No. 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, on the 19th day
of June 2002.
KFX INC.
By:/s/ Theodore Venners
Name: Theodore Venners
Title: Chairman of the Board of Directors,
President and Chief Executive Officer
Each person whose signature appears below hereby severally
constitute and appoint Theodore Venners, as true and lawful
attorney-in-fact and agent with full power of substitution and
resubstitution for him and in his name, place and stead, and in any and all
capacities to sign any and all amendments (including pre-effective and
post-effective amendments) to this Amendment No. 1 to the Registration
Statement, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment No. 1 to the Registration Statement has been signed
below by the following persons in the capacities and on the dates
indicated.
Signature Title Date
By: /s/ Theodore Venners Chairman of the Board, President and Chief June 19, 2002
-------------------- Executive Officer
Name: Theodore Venners (Principal Executive Officer)
By:/s/ Patrick S. Flaherty Vice President and Chief Financial Officer June 19, 2002
----------------------- (Principal Financial and Accounting Officer)
Name: Patrick S. Flaherty
By: /s/ Stanford M. Adelstein Director June 19, 2002
-------------------------
Name: Stanford M. Adelstein
By: /s/ Vincent N. Cook Director June 19, 2002
-------------------
Name: Vincent N. Cook
By: /s/ Richard S. Spencer, III Director June 19, 2002
---------------------------
Name: Richard S. Spencer, III
By: /s/ Jack C. Pester Director June 19, 2002
------------------
Name: Jack C. Pester
By: /s/ Mark S. Sexton Director June 19, 2002
------------------
Name: Mark S. Sexton
By: /s/ Stanley G. Tate Director June 19, 2002
-------------------
Name: Stanley G. Tate
By: /s/ David H. Russell Director June 19, 2002
--------------------
Name: David H. Russell
By: /s/ James S. Pignatelli Director June 19, 2002
-----------------------
Name: James S. Pignatelli
Index to Exhibits
EXHIBIT
NUMBER DESCRIPTION
4.1** Sample Common Stock Certificate
4.2(1) Indenture dated July 25, 1997 by and between the Company
and Colorado National Bank
4.7(2) Statement Respecting Rights of Series B Preferred Stock
of Pegasus Technologies, Inc.
4.8(2) Statement Respecting Rights of Series C Preferred Stock
of Pegasus Technologies, Inc.
5.1** Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23.1* Consent of Independent Accountants
23.2** Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
24.1** Powers of Attorney (included in the signature page of this
Registration Statement).
-----------------------
* Filed herewith.
** Previously filed.
(1) Document previously filed with the Securities and Exchange
Commission with the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 and incorporated herein by reference.
(2) Document previously filed with the Securities and Exchange
Commission with the Company's Annual Report on Form 10-K for the
year ended December 31, 2000 and incorporated herein by reference.