As filed with the Securities and Exchange Commission on June 13, 2003
Registration No. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-8
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
3300 East First Avenue, Suite 290
Denver, Colorado 80206
(Address of Principal Executive Offices)
KFx Inc. 2002 Stock Incentive Plan
(Full title of the plan)
Theodore Venners
3300 East First Avenue, Suite 290
Denver Colorado 80206
(Name and address of agent for service)
Telephone: (303) 293-2992
(Telephone number, including area code, of agent for service)
Copy to:
Phyllis G. Korff, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
(212) 735-3000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Maximum Maximum Amount of
Class Of Securities Amount To Be Offering Aggregate Offering Registration
To Be Registered Registered (1) Price Per Share (2) Price Fee
------------------- -------------- ------------------- ------------------ ------------
Common Stock, par value
$0.001 per share 2,000,000 shares $4.36 $8,710,000.00 $704.64
=============================================================================================================
(1) Includes an indeterminate number of additional shares of the Registrant's
common stock, par value $0.001 per share (the "Common Stock") that may be
issued to adjust the number of shares issued pursuant to such employee benefit
plan as a result of any future stock split, stock dividend or similar
adjustment of the registrant's outstanding Common Stock.
(2) Pursuant to Rule 457(c) under the Securities Act of 1933, as amended (the
"Securities Act"), the proposed maximum aggregate offering price and the
registration fee are based on the average of the high and low prices per share
of the Registrant's Common Stock reported on the American Stock Exchange on
June 11, 2003.
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THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING IN ACCORDANCE
WITH RULE 462 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
EXPLANATORY NOTE
This Registration Statement registers Common Stock of KFx Inc. (the
"Corporation") to be issued under the KFx Inc. 2002 Stock Incentive Plan (the
"Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in Part I of Form S-8
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act. Such documents are not being filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Such documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation Of Documents By Reference.
The following documents, filed by the Corporation with the Commission
pursuant to the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), are hereby incorporated by reference into this Registration Statement:
(a) The Corporation's annual report on Form 10-K for the year
ended December 31, 2002;
(b) The Corporation's quarterly report on Form 10-Q for the
quarter ended March 31, 2003;
(c) The Corporation's Current Reports on Form 8-K filed on June
6, 2003, May 8, 2003, April 17, 2003, March 28, 2003, March
11, 2003 and February 6, 2003; and
(d) The description of the Common Stock of the Corporation which
is contained in the Registration Statement on Form 10-SB
filed with the Commission on July 11, 1994 including any
amendment or report filed for the purpose of updating such
description.
In addition to the foregoing, all documents subsequently filed by the
Corporation with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment that
indicates that all securities registered hereunder have been issued or that
deregisters all securities offered then remaining unsold, shall be deemed
incorporated by reference into this Registration Statement and to be a part
hereof from the date of the filing of such documents. Any statement, including
financial statements, contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. Description Of Securities.
Not applicable.
ITEM 5. Interests Of Named Experts And Counsel.
Not applicable.
ITEM 6. 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 7. Exemption From Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
4.1 Sample Common Stock Certificate (filed as Exhibit 4.1 to the
Registration Statement on Form S-3 filed May 7, 2002).*
4.2 Restated Certificate of Incorporation (filed as Exhibit 2.1 to the
Registration Statement on Form 10-SB filed March 1, 1994).*
4.3 Certificate of Amendment to Certificate of Incorporation (filed as
Exhibit 2.2 to the Registration Statement on Form 10-SB filed March
1, 1994).*
4.4 Second Amended and Restated Bylaws (filed as Exhibit 3.4 to the Annual
Report on Form 10-KSB, as amended, for the year ended December 31,
1995).*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to legality
of the Common Stock being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1 hereto).
24.1 Powers of Attorney (included in the signature page of this
Registration Statement).
-----------------------
* Indicates exhibits incorporated by reference as indicated.
ITEM 9. Undertakings.
A. Subsequent Disclosure.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (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 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. Incorporation By Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. Commission Position On Indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection 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
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Denver, State of Colorado, on this
13th day of June, 2003.
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 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,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
By: /s/ Theodore Venners Chairman of the Board, President and
________________________________ Chief Executive Officer June 13, 2003
Name: Theodore Venners (Principal Executive Officer)
By: /s/ Jerry A. Mitchell Vice President-Finance and Acting Chief
________________________________ Financial Officer June 13, 2003
Name: Jerry A. Mitchell (Principal Financial and Accounting Officer)
By: /s/ Stanford M. Adelstein Director June 13, 2003
________________________________
Name: Stanford M. Adelstein
By: /s/ Vincent N. Cook Director June 13, 2003
________________________________
Name: Vincent N. Cook
By: /s/ Richard S. Spencer, III Director June 13, 2003
________________________________
Name: Richard S. Spencer, III
By: /s/ Jack C. Pester Director June 13, 2003
________________________________
Name: Jack C. Pester
By: /s/ Mark S. Sexton Director June 13, 2003
________________________________
Name: Mark S. Sexton
By: /s/ Stanley G. Tate Director June 13, 2003
________________________________
Name: Stanley G. Tate
By: /s/ Dr. James R. Schlesinger Director June 13, 2003
________________________________
Name: Dr. James R. Schlesinger
By: /s/ James S. Pignatelli Director June 13, 2003
________________________________
Name: James S. Pignatelli
Exhibits.
4.1 Sample Common Stock Certificate (filed as Exhibit 4.1 to the
Registration Statement on Form S-3 filed May 7, 2002). *
4.2 Restated Certificate of Incorporation (filed as Exhibit 2.1 to the
Registration Statement on Form 10-SB filed March 1, 1994).*
4.3 Certificate of Amendment to Certificate of Incorporation (filed as
Exhibit 2.2 to the Registration Statement on Form 10-SB filed March
1, 1994).*
4.4 Second Amended and Restated Bylaws (filed as Exhibit 3.4 to the
Annual Report on Form 10-KSB, as amended, for the year ended
December 31, 1995).*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP. as to legality
of the Common Stock being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP. (included in
Exhibit 5.1 hereto).
24.1 Powers of Attorney (included in the signature page of this
Registration Statement).
-----------------------
* Indicates exhibits incorporated by reference as indicated.
EXHIBIT 5.1
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
June 13, 2003
KFx Inc.
3300 East First Avenue, Suite 290
Denver, Colorado 80206
Re: KFx Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel for KFx Inc., a Delaware corporation
(the "Company"), in connection with the proposed issuance by the Company of up
to 2,000,000 shares (the "Shares") of common stock, par value $0.001 per share
(the "Common Stock"), pursuant to the Company's 2002 Stock Incentive Plan (the
"Plan").
This opinion is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended (the "Securities Act").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of: (i) the
Company's Registration Statement on Form S-8 as filed with the Securities and
Exchange Commission (the "Commission") on the date hereof under the Securities
Act (together with all exhibits thereto, the "Registration Statement"); (ii)
the Restated Certificate of Incorporation of the Company, as amended to date
and currently in effect; (iii) the Second Amended and Restated By-Laws of the
Company, as amended to date and currently in effect; (iv) a specimen
certificate representing the Common Stock; (v) certain resolutions of the
Board of Directors of the Company; and (vi) the Plan. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such records of the Company and such agreements, certificates of public
officials, certificates of officers or other representatives of the Company
and others, and such other documents, certificates and records, as we have
deemed necessary or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of executed documents, we have assumed
that the parties thereto had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by
such parties of such documents and the validity and binding effect thereof on
such parties. We have further assumed that all the Shares will be issued
pursuant to award agreements duly authorized by the Board of Directors of the
Company and validly executed and delivered by the parties thereto and that no
options will be granted under the Plan with per Share exercise prices below
the par value of the Common Stock. As to any facts material to the opinions
expressed herein which have not been independently established or verified, we
have relied upon statements and representations of officers and other
representatives of the Company and others.
Members of our firm are admitted to the bar in the State of New York,
and we do not express any opinion as to the laws of any other jurisdiction
other than the General Corporation Law of the State of Delaware, and we do not
express any opinion as to the effect of any other laws on the opinion stated
herein.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that the issuance of the Shares has been duly authorized by the
Company, and when (a) certificates representing the Shares in the form of the
specimen certificate examined by us have been countersigned by an authorized
officer of the transfer agent and registrar of the Company's common stock (the
"Transfer Agent"), (b) the Shares have been registered by the Transfer Agent
on the stock record books of the Company, and (c) the Shares have been issued
and delivered by the Company, and the entire amount of the consideration
therefor has been received in full by the Company, in each case in accordance
with the terms of the Plan and the applicable award agreement, the Shares will
be validly issued, fully paid and nonassesable.
We hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement. We also consent to the reference
to our firm under the caption "Legal Matters" in the Registration Statement.
In giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission.
Very truly yours,
Skadden, Arps, Slate, Meagher & Flom LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
KFx Inc. on Form S-8 of our report dated April 11, 2003, (which report
expresses an unqualified opinion and includes an explanatory paragraph
referring to the adoption of Statement of Financial Accounting Standards No.
142, "Goodwill and Other Intangible Assets"), appearing in the Annual Report
on Form 10-K of KFx Inc. for the year ended December 31, 2002.
/s/ Deloitte & Touche LLP
Denver, Colorado
June 9, 2003
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 12, 2002 relating to the
consolidated financial statements of KFx, Inc. which appears in Kfx's Annual
Report on Form 10-K for the year ended December 31, 2002.
/s/ PricewaterhouseCoopers LLP
Denver, Colorado
June 11, 2003