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 |
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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.
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. |
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|
|
|
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. |
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|
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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.
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 |
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Description
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4.1 |
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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 |
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Opinion of K&L
Gates LLP |
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|
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23.1 |
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Consent of Marcum
LLP |
|
|
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23.2 |
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Consent of K&L
Gates LLP (included as part of Exhibit 5.1) |
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24.1 |
|
Power
of Attorney (included in the signature pages to this Registration Statement) |
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: |
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(i) |
To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
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(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 |
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(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. |
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(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. |
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(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. |
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.
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Petro River Oil Corp. |
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By: |
/s/ Scot Cohen |
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Scot Cohen |
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Executive Chairman |
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 |
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Title |
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Date |
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/s/ Scot Cohen |
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Executive
Chairman |
|
September 30,
2014 |
Scot Cohen |
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(Principal
Executive Officer) |
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/s/ David S.
Briones |
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Chief Financial
Officer (Principal |
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September 30,
2014 |
David S. Briones |
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Financial and Accounting Officer) |
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/s/ Glenn C.
Pollack |
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Director |
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September 30,
2014 |
Glenn C. Pollack |
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/s/ John Wallace |
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Director |
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September 30,
2014 |
John Wallace |
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/s/ Fred Zeidman |
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Director |
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September 30,
2014 |
Fred Zeidman |
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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) |
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
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 |
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Marcum llp |
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New York, NY |
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September 30, 2014 |
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Petro River Oil (CE) (USOTC:PTRC)
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