ENRJ Enerjex Resources (New) (delisted)

 

As filed with the Securities and Exchange Commission on May 6, 2015

Registration No. 333-199030

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D. C. 20549

 

 

FORM S-3/A

(Post-Effective Amendment No. 1)

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

ENERJEX RESOURCES, INC.

(Exact name of registrant as specified in its charter)

 

 

Nevada	1311	88-0422242
(State or other jurisdiction of incorporation)	(Primary Standard Industrial Classification Code Number)	(IRS Employer Identification No.)

 

4040 Broadway, Suite 508

San Antonio, TX 78209

Telephone: (210) 451-5545

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Copies to:

 

Michael E. Pfau, Esq.

Fernando Velez, Jr., Esq.

Reicker, Pfau, Pyle & McRoy LLP

1421 State Street, Ste. B

Santa Barbara, CA 93101

Telephone: (805) 966-2440

 

 

Approximate date of commencement of proposed sale to the public:

From time to time after the effective date of this registration statement.

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: o

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨

 

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 each class of securities  to be registered

Amount to be Registered(1)

Proposed maximum offering price per unit(1)(2)

Proposed maximum aggregate offering price(1)(2)

Amount of registration fee(3)

Common Stock

10% Series A Preferred Stock

Preferred Stock

Warrants

Units

Total Primary Offering

Total

$

50,000,000

$

5,810

(4)

 

(1)

Securities registered hereunder may be sold separately, together or in units with other securities registered hereby. This registration statement covers up to $50,000,000 of an indeterminate principal amount or number of the securities of each identified class of securities. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), the securities being registered hereunder include such indeterminate (A) number of securities as may be issuable with respect to the securities being registered hereunder as a result of stock splits, stock dividends or similar transactions, and (B) number or amount of such securities as may be issued upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including under any applicable anti-dilution adjustment.  Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration statement in a public primary offering with a value exceeding more than one-third of our public float in any 12-month period held by non-affiliates so long as our public float remains below $75 million

 

(2)

The proposed maximum aggregate offering price per unit and the aggregate offering prices per class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.

 

(3)

Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.

 

(4)

The total registration fee includes $753.48 of this amount that was previously paid on September 30, 2014, upon the initial filing of this registration statement, and $5,056.52 of which was paid on November 17, 2014, upon the filing of Amendment No. 1 to this Registration Statement.

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

EXPLANATORY NOTE

 

EnerJex Resources, Inc. is filing this Post-Effective Amendment No.1 (the "Amendment") to its Registration Statement on Form S-3 (Registration No. 333-199030) (the "Registration Statement") as an exhibit-only filing to file new auditor and reserve engineer consents. Accordingly, this Amendment consists of only the facing page, this explanatory note, Part II of the Registration Statement, the signature pages to the Registration Statement and the filed exhibits. The prospectus is unchanged and has been omitted.

 

PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution.

 

The following is an estimate of the expenses (all of which are to be paid by the registrant) that we may incur in connection with the securities being registered hereby.

 

SEC registration fee		$	5,810
NYSE fee			*
Legal fees and expenses			*
Trustee's fees and expenses			*
Accounting fees and expenses			*
Printing expenses			*
Miscellaneous fees and expenses			*
Total Expenses		$	*

 

(1)

These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.

 

Item 15. Indemnification of Directors and Officers.

 

Section 78.7502(1) of the Nevada Revised Statutes ("NRS") authorizes a Nevada corporation to indemnify any director, officer, employee, or corporate agent "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, except an action by or in the right of the corporation" due to his or her corporate role. Section 78.7502(1) extends this protection "against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he acted in good faith and in a manner which 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."

 

Section 78.7502(2) of the NRS also authorizes indemnification of the reasonable defense or settlement expenses of a corporate director, officer, employee or agent who is sued, or is threatened with a suit, by or in the right of the corporation. The party must have been acting in good faith and with the reasonable belief that his or her actions were in or not opposed to the corporation's best interests. Unless the court rules that the party is reasonably entitled to indemnification, the party seeking indemnification must not have been found liable to the corporation.

 

To the extent that a corporate director, officer, employee, or agent is successful on the merits or otherwise in defending any action or proceeding referred to in Section 78.7502(1) or 78.7502(2), Section 78.7502(3) of the NRS requires that he be indemnified "against expenses, including attorneys' fees, actually and reasonably incurred by him in connection with the defense."

 

Unless ordered by a court or advanced pursuant to Section 78.751(2), Section 78.751(1) of the NRS limits indemnification under Section 78.7502 to situations in which either (1) the stockholders, (2) the majority of a disinterested quorum of directors, or (3) independent legal counsel determine that indemnification is proper under the circumstances.

 

Section 78.751(2) authorizes a corporation's articles of incorporation, bylaws or agreement to provide that directors’ and officers’ expenses incurred in defending a civil or criminal action must be paid by the corporation as incurred, rather than upon final disposition of the action, upon receipt by the director or officer to repay the amount if a court ultimately determines that he is not entitled to indemnification.

 

Section 78.751(3)(a) provides that the rights to indemnification and advancement of expenses shall not be deemed exclusive of any other rights under any bylaw, agreement, stockholder vote or vote of disinterested directors. Section 78.751(3) (b) extends the rights to indemnification and advancement of expenses to former directors, officers, employees and agents, as well as their heirs, executors, and administrators.

 

Regardless of whether a director, officer, employee or agent has the right to indemnity, Section 78.752 allows the corporation to purchase and maintain insurance on his behalf against liability resulting from his or her corporate role.

 

At present, there is no pending litigation or proceeding involving any director, officer, employee or agent as to which indemnification will be required or permitted under the Certificate. The Registrant is not aware of any threatened litigation or other proceeding that may result in a claim for such indemnification.

 

 

Item 16. Exhibits and Financial Statement Schedules.

 

The list of exhibits in the Index to Exhibits to this registration statements is incorporated herein by reference.

 

Item 17. 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 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, changes in the 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.

 

(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) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

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, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas on May 6, 2015.

 

	EnerJex Resources, Inc., a Nevada corporation
	By:	/s/ Robert G. Watson, Jr.
		Robert G. Watson, Jr.
		Chief Executive Officer

 

SIGNATURES 

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated, on the dates indicated.

 

SIGNATURE	TITLE	DATE
/s/ Robert G. Watson	Director and Chief Executive Officer (Principal Executive Officer)	May 6, 2015
Robert G. Watson
*	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	May 6, 2015
Douglas M. Wright
*	Director and Senior Vice President of Corporate Marketing	May 6, 2015
R. Atticus Lowe
*	Director	May 6, 2015
Lance Helfert
*	Director	May 6, 2015
James G. Miller
		May 6, 2015
*	Director
Richard Menchaca

 

 

By:	/s/ Robert G. Watson
	Robert G. Watson      Attorney-in-Fact

 

 

 

 

 

 

INDEX TO EXHIBITS

 

In reviewing the agreements included as exhibits to this registration statement, please remember that they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about EnerJex or the other parties to the agreements. The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the parties to the applicable agreement and:

 

·

should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;

 

·

have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;

 

·

may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and

 

·

were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.

 

Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about EnerJex may be found elsewhere in this registration statement and their other public filings, which are available without charge through the SEC’s website at http://www.sec.gov.

 

	Exhibit No.	Description
	1.1	Form of Underwriting Agreement++
	2.1	Agreement and Plan of Merger by and among Registrant, BRE Merger Sub, Inc., Black Raven Energy, Inc. and West Coast Opportunity Fund, LLC dated July 23, 2013 (incorporated herein by reference to Exhibit 10.4 on Form 8-K filed July 29, 2013).
	3.1	Amended and Restated Articles of Incorporation, as currently in effect (incorporated by reference to Exhibit 3.1 to the Form 10-Q filed on August 14, 2008)
	3.2	Amended and Restated Bylaws, as currently in effect (incorporated by reference to Exhibit 3.3 to the Form SB-2 filed on February 23, 2001)
	3.3	Certificate of Amendment of Articles of Incorporation (as filed with the Nevada Secretary of State on  May 29, 2014 (incorporated herein by reference as Exhibit 3.1 on Current Report Form 8-K filed on May 29, 2014).
	4.1	Specimen common stock certificate (incorporated by reference to Exhibit 4.3 to the Form S-1/A filed on May 27, 2008)
	4.2	Specimen Series A Preferred Stock Certificate (incorporated by reference to Exhibit 4.4 to the Form S-1/A filed on June 3, 2014)
	4.3	Amended and Restated Certificate of Designation for Series A Preferred Stock (incorporated by reference to Exhibit 4.6 to the Form S-1/A filed on June 3, 2014)
	4.4	Form of Warrant++
	4.5	Form of Warrant Agreement++
	4.6	Form of Unit Agreement++
	5.1	Opinion of Reicker, Pfau, Pyle  & McRoy LLP*
	23.1	Consent of L.L. Bradford & Company, LLC, independent registered public accounting firm**
	23.2	Consent of MHA Petroleum Consultants, LLC**
	23.3	Consent of Weaver, Martin & Samyn, LLC, independent registered public accounting firm*
	23.4	Consent of RBSM, LLC, independent registered public accounting firm**
	24.1	Power of Attorney*

 

* Previously filed.

** Filed herewith.

++ To be filed, if necessary by amendment or incorporated by reference in connection with the offering of the securities.

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We have issued our reports dated March 28, 2014 with respect to the consolidated financial statements for the year ended December 31, 2013, which are incorporated by reference in the Registration Statements on Form S-3 (No. 333-199030) and Form S-8 (Nos. 333-189272, 333-154472 and 333-152737) of Enerjex Resources, Inc. We consent to the incorporation by reference in the Registration Statements of the aforementioned reports, and to the use of our name as it appears under the caption "Expert."

 

 

/s/ L.L. Bradford & Company, LLC
L.L. Bradford & Company, LLC
Certified Public Accountants

 

Las Vegas, Nevada

Date: May 6, 2015

 

Exhibit 23.2

 

CONSENT OF MHA PETROLEUM CONSULTANTS LLC

INDEPENDENT PETROLEUM ENGINEERS

 

As independent petroleum engineers, MHA Petroleum Consultants LLC hereby consents to the use of reference in the Form 10-K of EnerJex Resources, Inc. of our estimates of reserves as of December 31, 2014 and 2013 and to all references to our firm included in this Form 10-K.

 

We have issued our estimates of reserves as of December 31, 2014 and 2013 on certain properties of EnerJex Resources, Inc. As independent oil and gas consultants, we hereby consent to the incorporation by reference of such reports and the information contained therein in the Registration Statements of EnerJex Resources, Inc. on Form S-3 (No. 333-199030) and Form S-8 (Nos. 333-189272, 333-154472 and 333-152737).

 

The analysis, conclusions, and methods contained in the report are based upon information that was in existence at the time the report was rendered and MHA Petroleum Consultants LLC has not updated and undertakes no duty to update anything contained in the report. While the report may be used as a descriptive resource, investors are advised that MHA Petroleum Consultants LLC has not verified information provided by others except as specifically noted in the report, and MHA Petroleum Consultants LLC makes no representation or warranty as to the accuracy of such information. Moreover, the conclusions contained in such report are based on assumptions that MHA Petroleum Consultants LLC believed were reasonable at the time of its preparation and that are described in such report in reasonable detail. However, there are a wide range of uncertainties and risks that are outside of the control of MHA Petroleum Consultants LLC which may impact these assumptions, including but not limited to unforeseen market changes, actions of governments or individuals, natural events, economic changes, and changes of laws and regulations or interpretation of laws and regulations.

 

MHA Petroleum Consultants, LLC
By	/s/Leslie S. O’Connor
	Leslie A. O’Connor Managing Partner

 

Denver, Colorado

Date: May 6, 2015

 

 

Exhibit 23.4

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We have issued our reports dated March 31, 2015 with respect to the consolidated financial statements for the year ended December 31, 2014 of EnerJex Resources, Inc., which are incorporated by reference in the Registration Statements on Form S-3 (No. 333-199030) and Form S-8 ((Nos. 333-189272, 333-154472 and 333-152737) of Enerjex Resources, Inc. We consent to the incorporation by reference in the Registration Statements of the aforementioned reports, and to the use of our name as it appears under the caption "Expert."

 

 

/s/ RBSM, LLP
RBSM, LLP
Certified Public Accountants

 

Leawood, Kansas

Date: May 6, 2015