As filed with the Securities and Exchange Commission on June 20, 2008
Registration No. 333-_________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
HOUSTON AMERICAN ENERGY CORP.
(Exact name of Registrant as specified in its charter)
DELAWARE 76-0675953
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
801 TRAVIS ST., SUITE 1425, HOUSTON, TX 77002
(Address, including zip code, of Registrant's principal executive offices)
___________
HOUSTON AMERICAN ENERGY CORP. 2005 STOCK OPTION PLAN
HOUSTON AMERICAN ENERGY CORP. 2008 EQUITY INCENTIVE PLAN
(Full title of the Plan)
___________
John F. Terwilliger
President and Chief Executive Officer
Houston American Energy Corp.
801 Travis St., Suite 1425
Houston, Texas 77002
(713) 222-6966
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
Copy to:
Michael Sanders, Esq.
20333 S.H. 249, Suite 600
Houston, Texas 77070
832-446-2599
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.
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [X]
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1)(2) PER SHARE OFFERING PRICE FEE (3)
------------------------------ ----------------- ----------------- ----------------- --------------
Common Stock, par value $0.001 2,200,000 shares $ 8.83 $ 19,426,000 $ 763.44
(1) Represents 2,200,000 shares of common stock issuable under the Houston
American Energy Corp. 2008 Equity Incentive Plan (the "2008 Plan").
(2) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement also covers an indeterminable number of shares of common stock
that may become issuable pursuant to the anti-dilution provisions of the
2008 Plan.
(3) The fee is computed, in accordance Rule 457(h)(1) and 457(c) under the
Securities Act, based on the average of the high and low prices of the
registrant's common stock reported on the Nasdaq Capital Market on June 19,
2008.
EXPLANATORY NOTE
----------------
Houston American Energy Corp. ("HUSA" "we" or "us") has prepared this
registration statement in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended, to register shares of our common stock,
$0.001 par value per share, issuable under our 2008 Equity Incentive Plan.
We previously filed a Form S-8 (SEC file no. 333-127656) registering
500,000 shares of common stock under the Houston American Energy Corp. 2005
Stock Option Plan (the "2005 Plan").
This Form S-8 includes a reoffer prospectus prepared in accordance with
Part I of Form S-3 under the Securities Act of 1933, as amended. The reoffer
prospectus may be used for reoffers and resales of control securities (as such
term is defined in General Instruction C to Form S-8) acquired pursuant to the
2008 Equity Incentive Plan and the 2005 Plan by selling stockholders who may be
deemed "affiliates" (as such term is defined in Rule 405 of the Securities Act
of 1933, as amended) of HUSA and for reoffers and resales of restricted
securities (as such term is defined in General Instruction C to Form S-8)
acquired pursuant to awards of restricted stock issued pursuant to the 2008
Equity Incentive Plan.
As permitted by Rule 429 under the Securities Act of 1933, the prospectus
filed together with this registration statement is a combined resale prospectus
that shall be deemed a post-effective amendment to the registrant's registration
statement numbered 333-127656 on Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified by Part I will be sent
or given to participants as specified by Rule 428(b)(1) under the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by HUSA with the Securities and Exchange
Commission are incorporated by reference in this registration statement on Form
S-8 (the "Registration Statement"):
(1) Annual Report on Form 10-K for the year ended December 31, 2007,
filed March 28, 2008;
(2) Quarterly Report on Form 10-Q for the quarter ended March 31,
2008, filed May 12, 2008;
(3) Current Reports on Form 8-K, filed April 1, 2008, April 29, 2008,
May 2, 2008 and June 5, 2008;
(4) Definitive Proxy Statement on Schedule 14A, filed on April 28, 2008;
and
(5) Description of common stock in our registration statement (File
No. 333-134756) on Form SB-2, filed June 6, 2006.
In addition, all documents filed by HUSA with the Securities and Exchange
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the
respective dates of filing of such documents with the Securities and Exchange
Commission. Any statement contained in this Registration Statement or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof or of the related
prospectus to the extent that a statement contained herein (or in any other
subsequently filed document which is also incorporated or deemed to be
incorporated 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 145 of the Delaware General Corporation Law (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 or enterprise. A
corporation may, in advance of the final disposition of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or agent
in defending such action, provided that the director or officer undertakes to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation. A corporation may indemnify such person
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
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 his conduct was unlawful.
II-1
A Delaware corporation may indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys fees) that he actually
and reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's by-law, agreement, vote or otherwise.
In accordance with Section 145 of the DGCL, our Certificate of
Incorporation (the "Certificate") provides that we shall indemnify each person
who is or was a director, officer, employee or agent of the company (including
the heirs, executors, administrators or estate of such person) or is or was
serving at the request of the company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
to the fullest extent permitted. The indemnification provided by the Certificate
shall not be deemed exclusive of any other rights to which any of those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of stockholder or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. Expenses (including
attorneys' fees) incurred in defending a civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the company in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the indemnified person to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
company. The Certificate provides that a director of the company shall not be
personally liable to the company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
----------- -----------------------------------------------------------------------------------------
4.1 Certificate of Incorporation of the Registrant dated April 2, 2001, incorporated by
reference to the Registrant's registration statement on Form SB-2 filed August 3, 2001.
4.2 Certificate of Amendment to the Certificate of Incorporation of the Registrant, as filed
with the Secretary of State of the State of Delaware on September 25, 2001, incorporated
by reference to the registration statement on Form SB-2 filed October 1, 2001.
4.3 Amended and Restated Bylaws of the Registrant adopted November 26, 2007,
incorporated by reference to the Current Report on Form 8-K filed November 29, 2007.
4.4 Houston American Energy Corp. 2005 Stock Option Plan, incorporated by reference to
the Current Report on Form 8-K filed August 16, 2005.
4.5 Houston American Energy Corp. 2008 Equity Incentive Plan, incorporated by reference
to the Definitive Proxy Statement on Schedule 14A filed on April 28, 2008.
5 Opinion of Michael W. Sanders, Esq.
23.1 Consent of Michael W. Sanders, Esq. (contained in the Opinion filed as Exhibit 5 hereto).
23.2 Consent of Malone & Bailey PC.
23.3 Consent of Thomas Leger & Company, L.L.P.
II-2
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information in
the registration statement;
(iii) To include 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 the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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) or 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.
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.
II-3
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 Houston, State of Texas on this 19th day of June
2008.
HOUSTON AMERICAN ENERGY CORP.
By: /s/ John F. Terwilliger
---------------------------------
John F. Terwilliger, President
and Chief Executive Officer
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 dates indicated.
SIGNATURE DATE TITLE
------------------------ ------------- -------------------------------------------
/s/ John F. Terwilliger June 19, 2008 President and Chief Executive Officer
------------------------
John F. Terwilliger (Principal Executive Officer) and Director
/s/ James J. Jacobs June 19, 2008 Chief Financial Officer
------------------------
James J. Jacobs (Principal Financial Officer)
/s/ Orrie Lee Tawes III June 19, 2008 Director
------------------------
Orrie Lee Tawes III
June 19, 2008 Director
------------------------
Edwin Broun III
/s/ Stephen Hartzell June 19, 2008 Director
------------------------
Stephen Hartzell
/s/ John Boylan June 19, 2008 Director
------------------------
John Boylan
II-4
RESALE PROSPECTUS
HOUSTON AMERICAN ENERGY CORP.
UP TO 1,363,333 SHARES
COMMON STOCK, PAR VALUE $.001
This prospectus relates to the reoffer and resale by the selling
stockholders of an aggregate of 1,363,333 shares of Houston American Energy
Corp. common stock issued, or issuable, by us pursuant to our 2005 Stock Option
Plan and our 2008 Equity Incentive Plan to certain of our directors, officers,
employees and consultants as compensation for their services. The selling
stockholders are not required to sell any shares.
All of the shares are being reoffered and resold for the account of the
selling stockholders. We will not receive any of the proceeds from the resale of
these shares.
The selling stockholders have advised us that the resale of their shares
may be effected from time to time in one or more transactions on the Nasdaq
Capital Market or such other stock market or exchange on which our common stock
may be listed or quoted, in negotiated transactions or otherwise, at market
prices prevailing at the time of the sale or at prices otherwise negotiated. See
"Plan of Distribution" starting on page 6 of this prospectus. We will bear all
expenses in connection with the preparation of this prospectus.
Our common stock is quoted on the Nasdaq Capital Market under the symbol
"HUSA." The last reported sale price of our common stock on June 19, 2008, was
$8.72 per share on the Nasdaq Capital Market.
Our principal executive offices are located at 801 Travis St., Suite 1425,
Houston, Texas 77002 and our telephone number is (713) 222-6966.
___________
PLEASE SEE "RISK FACTORS" ON PAGE 2 BELOW.
___________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
___________
The date of this prospectus is June 20, 2008
TABLE OF CONTENTS
INCORPORATION BY REFERENCE 3
PROSPECTUS SUMMARY 3
RISK FACTORS 4
FORWARD-LOOKING STATEMENTS 4
USE OF PROCEEDS 4
SELLING STOCKHOLDERS 4
PLAN OF DISTRIBUTION 6
LEGAL MATTERS 8
EXPERTS 8
WHERE YOU CAN FIND MORE INFORMATION 8
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES 8
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANY OTHER PERSON TO PROVIDE
YOU WITH DIFFERENT INFORMATION. IF ANYONE PROVIDES YOU WITH DIFFERENT OR
INCONSISTENT INFORMATION, YOU SHOULD NOT RELY ON IT. WE ARE NOT MAKING AN OFFER
TO SELL THESE SECURITIES IN ANY JURISDICTION WHERE AN OFFER OR SALE IS NOT
PERMITTED. YOU SHOULD ASSUME THAT THE INFORMATION APPEARING IN THIS PROSPECTUS
IS ACCURATE ONLY AS OF THE DATE ON THE FRONT COVER OF THIS PROSPECTUS. OUR
BUSINESS, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROSPECTS MAY HAVE
CHANGED SINCE THAT DATE.
2
INCORPORATION BY REFERENCE
The following documents filed by HUSA with the Securities and Exchange
Commission are incorporated by reference in this prospectus:
(1) Annual Report on Form 10-K for the year ended December 31, 2007,
filed March 28, 2008;
(2) Quarterly Report on Form 10-Q for the quarter ended March 31,
2008, filed May 12, 2008;
(3) Current Reports on Form 8-K, filed April 1, 2008, April 29, 2008,
May 2, 2008 and June 5, 2008;
(4) Definitive Proxy Statement on Schedule 14A, filed on April 28, 2008;
and
(5) Description of common stock in our registration statement (File
No. 333-134756) on Form SB-2, filed June 6, 2006.
In addition, all documents filed by HUSA with the Securities and Exchange
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, subsequent to the date of this prospectus and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
prospectus and to be part hereof from the respective dates of filing of such
documents with the Securities and Exchange Commission. Any statement contained
in this prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed document which is also incorporated or deemed to be
incorporated 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 prospectus.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus
but might not contain all of the information that is important to you. Before
investing in our common stock, you should read the entire prospectus carefully,
including the "Risk Factors," and our filings with the Securities and Exchange
Commission, which are incorporated herein by reference, before making an
investment decision.
Unless otherwise indicated, all references to "HUSA," "we," "us" and "our"
and similar terms in this prospectus refer to Houston American Energy Corp.
We are an oil and gas exploration and production company. Our oil and gas
exploration and production activities are focused on properties in the U.S.
onshore Gulf Coast Region, principally Texas and Louisiana, and development of
concessions in the South American country of Colombia. We seek to utilize the
contacts and experience of our chief executive officer, John F. Terwilliger, to
identify favorable drilling opportunities, to use advanced seismic techniques to
define prospects and to form partnerships and joint ventures to spread the cost
and risks to us of drilling.
Our principal executive offices are located at 801 Travis Street, Suite 1425,
Houston, Texas 77002 and our telephone number is (713) 222-6966. Our website
address is http://www.houstonamericanenergy.com. The information on or
------------------------------------
accessed through our website is not incorporated into this prospectus and is not
a part of this prospectus.
3
RISK FACTORS
Investing in our securities involves risks. Before making an investment
decision, you should carefully consider the risk factors discussed in "Item 1A.
Risk Factors" and elsewhere in our Annual Report on Form 10-K for the fiscal
year ended December 31, 2007 and in our more recent filings with the SEC which
are incorporated by reference herein, as well as other information we include in
this prospectus. See "Incorporation by Reference" above. Additional risks and
uncertainties not presently known to us or that we deem currently immaterial may
also impair our business operations. The risks and uncertainties described in
our filings with the SEC are not the only ones facing us. Additional risks and
uncertainties that we are unaware of, or that we currently deem immaterial, also
may become important factors that affect us. If any of the following risks
occur, our business, financial condition or results of operations could be
materially and adversely affected.
FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements," which include
information relating to future events, future financial performance, strategies,
expectations, competitive environment and regulations. Words such as "may,"
"should," "could," "would," "predicts," "potential," "continue," "expects,"
"anticipates," "future," "intends," "plans," "believes," "estimates," and
similar expressions, as well as statements in future tense, identify
forward-looking statements. Forward-looking statements should not be read as a
guarantee of future performance or results and will probably not be accurate
indications of when such performance or results will be achieved.
Forward-looking statements are based on information we have when those
statements are made or our management's good faith belief as of that time with
respect to future events, and are subject to risks and uncertainties that could
cause actual performance or results to differ materially from those expressed in
or suggested by the forward-looking statements.
You should review carefully the section entitled "Risk Factors" above for a
discussion of these and other risks that relate to our business and investing in
shares of our common stock.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the common stock
offered by this prospectus, but we will receive the exercise price upon the
exercise of any options by the selling stockholders. We plan to use any such
proceeds for working capital purposes.
SELLING STOCKHOLDERS
This prospectus relates to shares of our common stock that are being
registered for reoffers and resales by selling stockholders who have acquired or
may acquire shares under our employee benefit plans (including adjustment
shares). The selling stockholders may resell any or all of the shares, when
issued, subject to vesting conditions in some cases, while this prospectus is
effective.
Executive officers and directors, their family members, trusts for their
benefit, or entities that they control, that acquire common stock under our
benefit plans may be added to the selling stockholder list below by a prospectus
supplement filed with the SEC. The number of shares available to be sold by any
selling stockholder under this prospectus also may be increased or decreased by
a prospectus supplement, subject to the aggregate number of shares included
within this Prospectus. Non-affiliates who acquired restricted securities, as
these terms are defined in Rule 144(a) under the Securities Act of 1933, under
any of our employee benefit plans and who are not named below may use this
prospectus for the offer or sale of their common stock if they hold 1,000 shares
or less. Although a person's name is included in the table below, neither that
person nor we are making an admission that the named person is our "affiliate."
The information in the table below sets forth, for each selling
stockholder, based upon information available to us as of June 19, 2008, the
number of shares of our common stock beneficially owned before and after the
sale of the shares (assuming the sales of all shares) and the percentage of the
outstanding shares of our common stock beneficially owned after the sale of the
shares.
4
The table below also sets forth "Shares Available to be Sold", which
represents the maximum number of shares that could be sold under this prospectus
by the holder assuming the vesting of all awards, achievement of all performance
criteria and exercise of all options. The amounts listed under "Shares Available
to be Sold" do not constitute commitments to sell any or all of the stated
number of shares. The actual number of shares to be sold, if any, shall be
determined from time to time by each Selling Stockholder in his or her
discretion. We have not been informed whether any selling stockholders intend to
sell any shares.
Amount and Shares
Nature Shares Beneficially Percent of
of Beneficial Available Owned After Class After
Name and Position Ownership to be Sold(1) Offering Offering(2)
--------------------------------------- ------------- ------------- ------------ ------------
John Terwilliger
Chairman, Chief Executive and President 8,616,186 900,000(3) 8,616,186 29.9%
James J. Jacobs
Chief Financial Officer 213,900(4) 350,000(5) 13,900 *
Orrie Lee Tawes III
Director 3,400,377(6) 33,333(7) 3,367,044 12.0%
Edwin Broun III
Director 1,035,000(8) 30,000(9) 1,005,000 3.6%
Stephen Hartzell
Director 86,000(9) 30,000(9) 56,000 *
John P. Boylan
Director 20,000(10) 20,000(10) 0 *
______________
* Less than 1%
(1) Shares available to be sold consist, in each instance, of shares of common
stock which could be acquired upon exercise of stock options, assuming all
outstanding options fully vest.
(2) Based on 27,920,172 shares outstanding as of June 19, 2008. Includes shares
subject to options that are currently exercisable or may become exercisable
within 60 days. These shares are deemed outstanding for purposes of
calculating the percentage of outstanding common stock owned by a person
but are not deemed outstanding for the purpose of calculating the
individual ownership percentage of any other person listed above.
(3) Represents unvested stock options to purchase 900,000 shares of our common
stock.
(4) Includes options to purchase 200,000 shares of our common stock that are
exercisable within 60 days of the date of this prospectus.
(5) Represents options to purchase 200,000 shares of our common stock that are
exercisable within 60 days of the date of this prospectus and unvested
options to purchase 150,000 shares of our common stock.
(6) Includes 119,314 shares owned by Mr. Tawes' spouse and 33,333 stock options
that may be exercised within 60 days of the date of this prospectus.
3,117,010 of the shares held by Mr. Tawes are pledged as security.
(7) Includes options to purchase 33,333 shares of our common stock that are
exercisable within 60 days of the date of this prospectus.
(8) Includes 5,000 shares owned by Mr. Broun's spouse and 30,000 stock options
that may be exercised within 60 days of the date of this prospectus.
(9) Includes options to purchase 30,000 shares of our common stock that are
exercisable within 60 days of the date of this prospectus.
(10) Includes options to purchase 20,000 shares of our common stock that are
exercisable within 60 days of the date of this prospectus.
5
PLAN OF DISTRIBUTION
We are registering shares of common stock underlying options granted under
our 2005 Stock Option Plan and 2008 Equity Incentive Plan for resale by the
selling stockholders from time to time after the date of this prospectus. We
will not receive any of the proceeds from the sale by the selling stockholders
of such shares of common stock. We will bear all fees and expenses incident to
our obligation to register the shares of common stock.
The selling stockholders may sell all or a portion of the shares of common
stock beneficially owned by them and offered hereby from time to time directly
or through one or more underwriters, broker-dealers or agents. If the shares of
common stock are sold through underwriters or broker-dealers, the selling
stockholders will be responsible for underwriting discounts or commissions or
agent's commissions. The shares of common stock may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale or at negotiated prices.
Sales may be effected in transactions, which may involve crosses or block
transactions:
- on any national securities exchange or quotation service on which
the securities may be listed or quoted at the time of sale;
- in the over-the-counter market;
- in transactions otherwise than on such exchanges or systems or in
the over-the-counter market;
- through the writing and exercise of options, whether such options
are listed on an options exchange or otherwise;
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- an exchange distribution in accordance with the rules of the
applicable exchange;
- privately negotiated transactions;
- short sales;
- broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
- any combination of any such methods of sale; and
- any other method permitted by applicable law.
If the selling stockholders effect such transactions by selling shares of
common stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholders or
commissions from purchasers of the shares of common stock for whom they may act
as agent or to whom they may sell as principal. These discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved. In connection
with sales of the shares of common stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the shares of common stock in the course of hedging in
positions they assume. The selling
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stockholders may also sell shares of common stock short and deliver shares of
common stock covered by this prospectus to close out short positions and to
return borrowed shares in connection with such short sales. The selling
stockholders may also loan or pledge shares of common stock to broker-dealers
that in turn may sell such shares.
The selling stockholders may pledge or grant a security interest in some or
all of the shares of common stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the shares of common stock from time to time pursuant to this
prospectus or any amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933, as amended, amending, if
necessary, the list of selling stockholders to include the pledgee, transferee
or other successors in interest as selling stockholders under this prospectus.
The selling stockholders also may transfer and donate the shares of common stock
in other circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
The selling stockholders and any broker-dealer participating in the
distribution of the shares of common stock may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933, as amended, and any commission
paid, or any discounts or concessions allowed to, any such broker-dealer may be
deemed to be underwriting commissions or discounts under the Securities Act of
1933, as amended. At the time a particular offering of the shares of common
stock is made, a prospectus supplement, if required, will be distributed which
will set forth the aggregate amount of shares of common stock being offered and
the terms of the offering, including the name or names of any broker-dealers or
agents, any discounts, commissions and other terms constituting compensation
from the selling stockholders and any discounts, commissions or concessions
allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be
sold in such states only through registered or licensed brokers or dealers. In
addition, in some states the shares of common stock may not be sold unless such
shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
There can be no assurance that any selling stockholder will sell any or all
of the shares of common stock registered by the registration statement of which
this prospectus forms a part.
The selling stockholders and any other person participating in such
distribution will be subject to applicable provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder, including,
without limitation, Regulation M of the Securities Exchange Act of 1934, as
amended, which may limit the timing of purchases and sales of any of the shares
of common stock by the selling stockholders and any other participating person.
Regulation M may also restrict the ability of any person engaged in the
distribution of the shares of common stock to engage in market-making activities
with respect to the shares of common stock. All of the foregoing may affect the
marketability of the shares of common stock and the ability of any person or
entity to engage in market-making activities with respect to the shares of
common stock.
We will pay all expenses of the registration of the shares of common stock
pursuant to the registration rights agreement that we entered into with the
selling stockholders. However, the selling stockholders will pay all
underwriting discounts and selling commissions, if any.
We do not know whether any of the selling stockholders will sell any or all
of their shares under this prospectus. We may terminate this offering without
notice at any time.
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LEGAL MATTERS
The validity of the shares has been passed upon by our counsel, Michael W.
Sanders, Attorney at Law.
EXPERTS
The financial statements incorporated in this prospectus and elsewhere in
this registration statement by reference to the Annual Report on Form 10-K for
the year ended December 31, 2007 have been so incorporated in reliance on the
reports of Malone & Bailey, PC and Thomas Leger & Co., L.L.P., independent
registered public accounting firms, given on the authority of said firms as
experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-8 with the Securities and
Exchange Commission for our common stock offered in this offering. This
prospectus does not contain all the information set forth in the Registration
Statement. You should refer to the Registration Statement and our other
Securities and Exchange Commission filings incorporated by reference therein and
its exhibits for additional information. Whenever we make references in this
prospectus to any of our contracts, agreements or other documents, the
references are not necessarily complete and you should refer to the exhibits to
the Registration Statement and our other Securities and Exchange Commission
filings incorporated by reference therein for copies of the actual contracts,
agreements or other documents.
The Securities and Exchange Commission maintains an Internet site at
www.sec.gov that contains reports, proxy and information statements, and other
information regarding us. You may also read and copy any document we file with
the SEC at its Public Reference Room at 100 F Street NE, Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the Public Reference Room. Our SEC filings are also available on the SEC's
website at www.sec.gov.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to our directors, officers or persons
controlling us, we have been advised that it is the Securities and Exchange
Commission's opinion that such indemnification is against public policy as
expressed in the Securities Act of 1933, as amended, and is, therefore,
unenforceable.
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