FORM S-8

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

Petro River Oil Corp.

(Exact name of registrant as specified in its charter)

 

Delaware   98-0611188

(State or other jurisdiction of
incorporation or organization)

  (I.R.S. Employer
Identification No.)

 

1980 Post Oak Blvd., Suite 2020

Houston, TX 77056

(Address of Principal Executive Offices)

 

Petro River Oil Corp.

Amended and Restated

2012 Equity Compensation Plan

(Full title of plan)

 

Scot Cohen

Executive Chairman

1980 Post Oak Blvd., Suite 2020

Houston, TX 77056

(469) 828-3900

(Name, address, and telephone number, including area code, of agent for service)

 

With a copy to:

Robert S. Matlin, Esq.

K&L Gates LLP

599 Lexington Avenue

New York, NY 10022

212-536-3900

 

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 [  ] (Do not check if a smaller reporting company) Smaller reporting company [X]

 

CALCULATION OF REGISTRATION FEE

 

Title of securities
to be registered
 

Amount to be

registered(1)

    

Proposed maximum offering price

per share(2)

    

Proposed maximum

aggregate

offering price(2)

    

Amount of

registration

fee(2)

 
Common Stock, par value $0.00001 per share  120,000,000   $0.06   $7,200,000   $927.36 

 

(1) Covers 120,000,000 shares of common stock of Petro River Oil Corp., $0.00001 par value per share (“Common Stock”), approved for issuance under the Petro River Oil Corp. Amended and Restated 2012 Equity Incentive Plan (the “Plan”) and, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares of Common Stock that may be offered and issued under the Plan to prevent dilution resulting from stock splits, stock distributions or similar transactions.
   
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act. The proposed maximum offering price per share, proposed maximum aggregate price and the amount of the registration fee are based on the average of the high and low prices of the registrant’s common stock reported on OTCBB on September 23, 2014.

 

 

 

 
 

 

Part I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration Statement”) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the Petro River Oil Corp. 2012 Equity Compensation Plan (the “Plan”) covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act.

 

1
 

 

Part II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

Petro River Oil Corp. (the “Registrant”) is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports and other information with the Commission. The following documents, which are on file with the Commission, are incorporated herein by reference and made a part hereof:

 

  1. The Registrant’s Annual Report on Form 10-K for the fiscal year ended April 30, 2014, filed with the Commission on August 13, 2014.
     
  2. The Registrant’s Quarterly Report on Form 10-Q for the three months ended July 31, 2014, filed with the Commission on September 23, 2014.
     
  3. All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above.

 

All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicate that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.

 

Any statement 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 subsequently filed document which also 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.

 

The Registrant is authorized, pursuant to its certificate of incorporation, to issue 2,250,000,000 shares of common stock, par value $0.00001 per share (“Common Stock”). Dividends may be declared and paid out of any funds legally available therefor under the laws of Delaware, as may be deemed advisable from time to time by the board of directors of the Registrant.

 

Each holder of Common Stock is entitled, at each meeting of the stockholders of the Registrant, to vote in person or by proxy each share or fractional share of the stock of the Registrant having voting rights on the matter in question and which shall have been held by the stockholder and registered in the stockholder’s name on the books of the Registrant. The holders of record of thirty-three and one-third percent (33.33%) in voting interest of the shares of stock of the Registrant entitled to be voted thereat, present in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of the stockholders of the Registrant or any adjournment thereof. Stockholders are entitled to elect the directors of the Registrant by a plurality of the votes cast at any stockholder meeting for the election of directors at which a quorum is present.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

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Item 6. Indemnification of Directors and Officers.

 

Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”), allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the 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 in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant’s Certificate of Incorporation provides for this limitation of liability.

 

Section 145 of the DGCL (“Section 145”) provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, 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 an officer, director, 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. The indemnity may include 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, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent 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 or her against the expenses which such officer or director has actually and reasonably incurred.

 

Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or her under Section 145. The Registrant currently carries liability insurance for its directors and officers.

 

The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of the Registrant’s certificate of incorporation, the Registrant’s bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit

Number

  Description
     
4.1   Petro River Oil Corp. Amended and Restated 2012 Equity Compensation Plan (incorporated by reference to Exhibit 10.2 of the Registrant’s Annual Report on Form 10-K, filed with the Commission on August 13, 2014)
     
5.1   Opinion of K&L Gates LLP
     
23.1   Consent of Marcum LLP
     
23.2   Consent of K&L Gates LLP (included as part of Exhibit 5.1)
     
24.1  

Power of Attorney (included in the signature pages to this Registration Statement)

 

3
 

 

Item 9. Undertakings

 

(a) 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; and
     
  (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

provided, however, that: paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 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 which remain unsold at the termination of the offering.

 

(b) 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 section 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.
   
(c) 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.

 

4
 

 

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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 30th day of September, 2014.

 

  Petro River Oil Corp.
     
  By: /s/ Scot Cohen
    Scot Cohen
    Executive Chairman

 

5
 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Scot Cohen his true and lawful attorney-in-fact and agent, with full power of substitution for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission and any other regulatory authority, granting unto said attorney-in-fact and agent, power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, 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 dates indicated.

 

Signature   Title   Date
         
/s/ Scot Cohen   Executive Chairman    September 30, 2014
Scot Cohen  

(Principal Executive Officer)

 
         
/s/ David S. Briones   Chief Financial Officer (Principal   September 30, 2014
David S. Briones   Financial and Accounting Officer)  
         
/s/ Glenn C. Pollack   Director   September 30, 2014
Glenn C. Pollack    
         
/s/ John Wallace   Director   September 30, 2014
John Wallace    
         
/s/ Fred Zeidman   Director    September 30, 2014 
Fred Zeidman    

 

6
 

 

EXHIBIT INDEX

 

Exhibit

Number

  Exhibit Description
     
4.1   Petro River Oil Corp. Amended and Restated 2012 Equity Compensation Plan (incorporated by reference to Exhibit 10.2 of the Registrant’s Annual Report on Form 10-K, filed with the Commission on August 13, 2014)
     
5.1   Opinion of K&L Gates LLP
     
23.1   Consent of Marcum LLP
     
23.2   Consent of K&L Gates LLP (included as part of Exhibit 5.1)
     
24.1   Power of Attorney (included in the signature pages to this Registration Statement)

 

7
 

Exhibit 5.1

 

 

September 30, 2014

 

Petro River Oil Corp.

1980 Post Oak Blvd., Suite 2020

Houston, TX 77056

 

Ladies and Gentlemen:

 

We have acted as counsel to Petro River Oil Corp., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (Registration No. 333-___________) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), for the registration of 120,000,000 shares (the “Shares”) of common stock, par value $0.00001 per share, of the Company (“Common Stock”). The Shares are issuable under the Company’s Amended and Restated 2012 Equity Compensation Plan (the “Plan”). This opinion letter is being delivered at your request in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

 

For purposes of this opinion letter, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:

 

(i) the Registration Statement;

 

(ii) the Company’s Certificate of Incorporation, as amended or supplemented and currently in effect, as certified by the Secretary of State of the State of Delaware;

 

(iii) the Company’s Bylaws, as amended or supplemented and currently in effect, as certified by the Executive Chairman of the Company (the “Bylaws”);

 

(iv) the Plan; and

 

(v) the corporate actions of the board of directors of the Company adopting the Plan, and otherwise relating to the Registration Statement and the issuance of the Shares pursuant to the Plan.

 

We also have examined and relied on certificates of public officials and as to certain matters of fact that are material to our opinions, we have relied on a certificate of an officer of the Company. We have not independently established any of the facts so relied on.

 

 
 

 

Page 2
September 30, 2014

 

For purposes of this opinion letter, we have assumed the accuracy and completeness of each document submitted to us, the genuineness of all signatures on original documents, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, conformed or photostatic copies thereof, and the due execution and delivery of all documents where due execution and delivery are prerequisites to the effectiveness thereof. We have further assumed the legal capacity of natural persons and that each party to the documents we have examined or relied on (other than the Company) has the power, corporate or other, to enter into and perform all obligations thereunder and also have assumed the due authorization by all requisite action, corporate or other, the execution and delivery by such parties of such documents, and the validity and binding effect thereof on such parties. We also have assumed that the Company will at all time have a sufficient number of authorized and unissued shares of Common Stock reserved for issuance pursuant to the Plan. We have not independently verified any of these assumptions.

 

The opinion expressed in this opinion letter is limited to the General Corporation Law of the State of Delaware (the “DGCL”). We are not opining on, and we assume no responsibility for, the applicability to or effect on any of the matters covered herein of (a) any other laws; (b) the laws of any other jurisdiction; or (c) the laws of any county, municipality or other political subdivision or local governmental agency or authority.

 

Based on the foregoing and in reliance thereon, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that the Shares, when and if issued and delivered against payment therefor in accordance with the Plan, will be validly issued, fully paid and nonassessable.

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

 

Yours truly,

 

/s/ K&L Gates LLP

 

 
 

EXHIBIT 23.1

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of Petro River Oil Corp. on Form S-8 of our report dated August 13, 2014, with respect to our audits of the consolidated financial statements of Petro River Oil Corp. and Subsidiaries as of April 30, 2014 and 2013 and for the year ended April 30, 2014, four month period from January 1, 2013 to April 30, 2013 and period from February 2, 2012 (commencement of operations) through December 31, 2012 appearing in the Annual Report on Form 10-K of Petro River Oil Corp. for the year ended April 30, 2014.

 

/s/ Marcum llp  
   
Marcum llp  
New York, NY  
September 30, 2014