As filed with the Securities and Exchange Commission on February 15, 2012.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
DEJOUR ENERGY INC.
(Exact name of registrant as specified in its charter)
British Columbia (State or Other Jurisdiction of Incorporation or Organization) | Not Applicable (I.R.S. Employer Identification No.) |
999 Canada Place, Suite # 598,
Vancouver, B.C. V6C 3E1
Canada
(Address of Principal Executive
Offices)
2009 Stock Option Plan
(Full title of the plan)
DL Services, Inc.
Columbia Center
701 Fifth Avenue, Suite 6100
Seattle, Washington 98104-7043
(206) 903-8800
(Name, address and telephone number, including area code, of agent for service)
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. (Check one):
Large accelerated filer¨ | Accelerated filer¨ |
Non-accelerated filerx (Do not check if a smaller reporting company) | Smaller reporting company¨ |
CALCULATION OF REGISTRATION FEE
Title of Securities To Be Registered | Amount To Be Registered (1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | ||||||||||
Common Shares, no par value | 15,000,000 shares | $ | 0.4453 | $ | 6,679,500 | $ | 766 |
(1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers an indeterminate number of common shares that may from time to time be offered or issued to prevent dilution resulting from stock dividends, stock splits or similar transactions. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as amended, based upon the average of the high and low selling price per share of the common shares of the registrant as reported on the NYSE Amex on February 13, 2012. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 are not required to be filed with the Securities and Exchange Commission (the “SEC”) either as part of this registration statement or as prospectuses or prospectus supplements, pursuant to the Note to Part I of Form S-8 and Rule 424 under the Securities Act of 1933. The information required in the Section 10(a) prospectus is included in documents being maintained and delivered by Dejour Energy Inc. as required by Part I of Form S-8 and by Rule 428 under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. | Incorporation Of Documents By Reference. |
The following documents which have been and will in the future be filed by us with the SEC are incorporated in this registration statement by reference:
(a) | Our Annual Report on Form 20-F for the year ended December 31, 2010, filed with the SEC on June 30, 2011. | |
(b) | Exhibits 99.2 and 99.3 to our Reports of Foreign Issuer on Form 6-K furnished to the SEC on April 4, 2011; June 14, 2011; August 12, 2011; and November 14, 2011, each as amended to the date hereof; | |
(c) | Our Report of Foreign Issuer on Form 6-K furnished to the SEC on February 6, 2012; | |
(c) | All other reports filed by our company under Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since December 31, 2010; and | |
(d) | The description of our common shares set forth in the amendment to our Registration Statement on Form 8-A, as filed with the SEC on February 15, 2012, including any further amendment or report to such registration statement filed for the purpose of amending such description. |
In addition, all reports and documents filed by us under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities being offered have been sold or which deregisters all securities then remaining unsold, and any Form 6-K furnished by us during such period or portions thereof that are identified in such Form 6-K as being incorporated by reference into this registration statement, shall be deemed to be incorporated by reference in and to be part of this registration statement from the date of filing of each such document.
Item 4. | Description of Securities. |
Not applicable. |
Item 5. | Interests of Named Experts and Counsel. |
Not applicable. |
Item 6. | Indemnification of Directors and Officers. |
We are subject to the provisions of theBusiness Corporations Act (British Columbia) (the “Act”). Under Section 160 of the Act, we may, subject to Section 163 of the Act, indemnify an individual who:
· is or was a director or officer of our company;
· is or was a director or officer of another corporation (i) at a time when such corporation is or was an affiliate of our company; or (ii) at our request, or
· at our request, is or was, or holds or held a position equivalent to that of, a director or officer of a partnership, trust, joint venture or other unincorporated entity,
and includes, the heirs and personal or other legal representatives of that individual (collectively, an “eligible party”), against a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, a proceeding (an “eligible penalty”) in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of our company or an associated corporation, or holding or having held a position equivalent to that of a director or officer of, our company or an associated corporation (a) is or may be joined as a party, or (b) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding (an “eligible proceeding”) to which the eligible party is or may be liable and we may, subject to section 163 of the Act, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an eligible party in respect of that proceeding.
Under Section 161 of the Act, and subject to Section 163 of the Act, we must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an eligible party in respect of that proceeding if the eligible party (a) has not been reimbursed for those expenses, and (b) is wholly successful, on the merits or otherwise, in the outcome of the proceeding or is substantially successful on the merits in the outcome of the proceeding.
Under Section 162 of the Act, and subject to Section 163 of the Act, we may pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually and reasonably incurred by an eligible party in respect of the proceeding, provided that we must not make such payments unless we first receive from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited under Section 163, the eligible party will repay the amounts advanced.
Under Section 163 of the Act, we must not indemnify an eligible party against eligible penalties to which the eligible party is or may be liable or pay the expenses of an eligible party in respect of that proceeding under Sections 160, 161 or 162 of the Act, as the case may be, if any of the following circumstances apply:
· if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time that the agreement to indemnify or pay expenses was made, we were prohibited from giving the indemnity or paying the expenses by our memorandum or articles;
· if the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, we are prohibited from giving the indemnity or paying the expenses by our memorandum or articles;
· if, in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly and in good faith with a view to the best interests of our company or the associated corporation, as the case may be; or
· in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of which the proceeding was brought was lawful.
If an eligible proceeding is brought against an eligible party by or on behalf of our company or by or on behalf of an associated corporation, we must not either indemnify the eligible party against eligible penalties to which the eligible party is or may be liable, or pay the expenses of the eligible party under Sections 160, 161 or 162 of the Act, as the case may be, in respect of the proceeding.
Under Section 164 of the Act, the Supreme Court of British Columbia may, on application of our company or an eligible party:
· order us to indemnify an eligible party against any liability incurred by the eligible party in respect of an eligible proceeding;
· order us to pay some or all of the expenses incurred by an eligible party in respect of an eligible proceeding;
· order the enforcement of, or payment under, an agreement of indemnification entered into by us;
· order us to pay some or all of the expenses actually and reasonably incurred by any person in obtaining an order under Section 164 of the Act; or
· make any other order the court considers appropriate.
Section 165 of the Act provides that we may purchase and maintain insurance for the benefit of an eligible party or the heirs and personal or other legal representatives of the eligible party against any liability that may be incurred by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, our company or an associated corporation.
Under the Act, the articles of our company may affect our power or obligation to give an indemnity or pay expenses to the extent that the articles prohibit giving the indemnity or paying the expenses. As indicated above, this is subject to the overriding power of the Supreme Court of British Columbia under Section 164 of the Act.
Article 21 of our articles provides for the mandatory indemnification of our directors, former directors, and alternate directors, as well as his or her heirs and legal personal representatives, or any other person, to the greatest extent permitted by the Act. The indemnification includes the mandatory payment of expenses actually and reasonably incurred by such person in respect of that proceeding. The failure of a director, alternate director, or officer to comply with the Act or our articles of incorporation does not invalidate any indemnity to which he or she is entitled. Under our articles, we may purchase and maintain insurance for the benefit of any eligible person who:
· is or was a director, alternate director, officer, employee or agent of our company;
· is or was a director, alternate director, officer employee or agent of a corporation at a time when the corporation is or was an affiliate of our company;
· at our request, is or was a director, alternate director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity; or
· at our request, holds or held a position equivalent to that of a director, alternate director or officer of a partnership, trust, joint venture or other unincorporated entity;
against any liability incurred by him or her as such director, alternate director, officer, employee or agent or person who holds or held such equivalent position.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling our company pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is therefore unenforceable.
Item 7. | Exemption from Registration Claimed. |
Not applicable. | |
Item 8. | Exhibits. |
A list of exhibits included as part of this registration statement is set forth in the Exhibit Index 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:
(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 this registration statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;
(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 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 Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference into this 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.
(4) To file a post-effective amendment to this registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished,provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
(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 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) 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 SEC such indemnification is against public policy as expressed in such 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 of 1933 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 Vancouver, British Columbia, Canada, on this 15th day of February, 2012.
DEJOUR ENERGY INC. | ||
By: | /s/ Robert L. Hodgkinson | |
Name: Robert L. Hodgkinson | ||
Title: Chief Executive Officer |
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert L. Hodgkinson and Mathew Wong, and each of them, his true and lawful attorneys-in-fact and agents, each acting alone, with the powers of substitution and revocation, for him and in his name, place and stead, in any and all capacities, to sign this Registration Statement on Form S-8, and any and all amendments (including post-effective amendments) thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming that all such attorneys-in-fact and agents or any of them, or their 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 indicated below on February 15, 2012.
Signature | Title | |
/s/ Robert L. Hodgkinson | Chief Executive Officer and Co-Chairman | |
Robert L. Hodgkinson | (principal executive officer) | |
/s/ Mathew Wong | Chief Financial Officer | |
Mathew Wong | (principal financial and accounting officer) | |
/s/ Craig Sturrock | Director | |
Craig Sturrock | ||
/s/ Richard Patricio | Director | |
Richard Patricio |
/s/ Robert Holmes | Director | |
Robert Holmes | ||
/s/ Harrison Blacker | Director | |
Harrison Blacker | ||
/s/ Darren Devine | Director | |
Darren Devine | ||
/s/ Stephen R. Mut | Director | |
Stephen R. Mut |
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, the undersigned has signed this registration statement, solely in the capacity of the duly authorized representative of Dejour Energy Inc. in the United States, on February 15, 2012.
DEJOUR ENERGY (USA) CORP. | ||
By: | /s/ Harrison Blacker | |
Name: Harrison Blacker | ||
Title: President |
EXHIBIT INDEX
Exhibit | Description of Exhibit | |
4.1 | Dejour Enterprises Ltd. 2009 Stock Option Plan. | |
4.2 | Dejour Enterprises Ltd. 2009 Stock Incentive Plan (“Sub-Plan”), as amended. | |
4.3 | Form of Stock Option Agreement (included in Exhibit 4.1). | |
4.4 | Articles. | |
4.5 | Notice of Articles. | |
4.6 | Certificate of Continuation. | |
4.7 | Certificate of Name Change (incorporated by reference to Exhibit 1.7 to the registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2010, filed on June 30, 2011 (File No. 133491)). | |
4.8 | Amendment to Articles to Include Special Rights. | |
4.9 | Notice of Alteration. | |
5.1 | Opinion of Farris, Vaughan, Wills & Murphy LLP. | |
23.1 | Consent of BDO Canada LLP. | |
23.2 | Consent of Dale Matheson Carr-Hilton Labonte LLP. | |
23.2 | Consent of Farris, Vaughan, Wills & Murphy LLP (included in Exhibit 5.1). | |
23.3 | Consent of GLJ Petroleum Consultants Ltd. | |
23.4 | Consent of Gustavson Associates LLC. | |
24.1 | Powers of Attorney (included on the signature pages to this registration statement). |