As filed with the Securities and Exchange Commission on December 9, 2020
Registration No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Evolution Petroleum Corporation
(Exact name of registrant as specified in its charter)
Nevada (State or other jurisdiction of incorporation or organization) | 41-1781991 (I.R.S. Employer Identification No.) | |||||||
1155 Dairy Ashford Road, Suite 425
Houston, Texas 77079
(713) 935-0122
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Evolution Petroleum Corporation 2016 Equity Incentive Plan
(Full Title of the Plan)
Jason E. Brown
President and Chief Executive Officer
1155 Dairy Ashford Road, Suite 425
Houston, Texas 77079
(713) 935-0122
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
William T. Heller IV, Esq.
Mayer Brown LLP
700 Louisiana Street, Suite 3400
Houston, TX 77002-2730
Tel: (713) 238-2684
Fax: (713) 238-4618
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 filer ☐ | Smaller reporting company ☒ | ||||
CALCULATION OF REGISTRATION FEE
| Title of each class 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 | ||||||||||
| Common Stock, $0.001 par value per share | 2,500,000 | $2.90 | $7,250,000 | $790.98 | ||||||||||
(1) This registration statement also covers such indeterminable additional number of shares as may be issuable under the Evolution Petroleum Equity 2016 Incentive Plan by reason of any adjustments in the number of shares to prevent dilution from any future stock splits, stock dividends and similar transactions. This Registration Statement covers any such additional shares in accordance with Rule 416(a). (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h)(1) under the Securities Act of 1933, as amended and based on the average of the high and low sales prices of our common stock reported on the NYSE American on December 4, 2020. | ||||||||||||||
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by the rules of the Securities and Exchange Commission (the “Commission”), this Registration Statement omits certain information specified in Part I of Form S-8. The documents containing the information specified in Part I of this Registration Statement will be sent or given to eligible employees as specified in Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Evolution Petroleum Corporation (the “Company”) with the Commission are hereby incorporated by reference:
(a)Annual Report on Form 10-K for the year ended June 30, 2020, filed on September 10, 2020;
(b)All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in paragraph (a) above; and
(c)The description of the Company’s common stock contained in its registration statement on Form 8-A filed on July 13, 2006, and any amendment or report filed for the purpose of updating such description.
In addition, all reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities covered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Under Nevada law, a corporation shall indemnify a director or officer against expenses, including attorneys’ fees, actually and reasonably incurred by him, to the extent the director or officer has been successful on the merits or otherwise in defense of any action, suit or proceeding. A corporation may indemnify a director or officer 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, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit or proceeding, unless:
•The director’s or officer’s act or failure to act constitutes a breach of his or her fiduciary duties as a director or officer, and his or her breach of those duties involves intentional misconduct, fraud or a knowing violation of law; or
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•The director or officer does not act in good faith and in a manner which he or she reasonably believes to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, the director or officer has reasonable cause to believe his or her conduct was unlawful.
Our bylaws include an indemnification provision under which we have the power to indemnify our directors, officers and former officers and directors (including heirs and personal representatives) against all costs, charges and expenses actually and reasonably incurred, including an amount paid to settle an action or satisfy a judgment to which the director or officer is made a party by reason of being or having been a director or officer of the Company or any of our subsidiaries.
Our bylaws also provide that our directors may cause us to purchase and maintain insurance for the benefit of a person who is or was serving as a director, officer, employee or agent of the Company or any of our subsidiaries (including heirs and personal representatives) against a liability incurred by him or her as our director, officer, employee or agent.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to another filing of the Company with the Commission, the following exhibits are filed with this Registration Statement:
Exhibit No. Description of Exhibit
| 4.1 | |||||
| 4.2 | |||||
| 4.3 | |||||
| 4.4 | |||||
| 4.5 | |||||
| 4.6 | |||||
| 5.1 | |||||
| 23.1 | |||||
| 23.2 | |||||
| 23.3 | |||||
| 24.1 | Powers of Attorney (included on the signature page of 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;
(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)
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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;
(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; additional or changed material information on the plan of distribution.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and 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 purposes of determining any liability under the Securities Act, 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, each filing of the registrant’s annual report pursuant to section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 an initial bona fide offering thereof.
(c)Insofar as indemnification for liabilities arising under the Securities Act 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 Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by 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 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Houston, State of Texas, on December 9, 2020.
| EVOLUTION PETROLEUM CORPORATION | |||||
| By: | /s/ Jason E. Brown | ||||
| Jason E. Brown | |||||
| President and Chief Executive Officer | |||||
POWER OF ATTORNEY
Each person whose signature appears immediately below constitutes and appoints Jason E. Brown and Ryan Stash, and each of them severally, each of whom may act without joinder of the other, as his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign the Registration Statement on Form S-8 and all documents in connection therewith and all instruments necessary, appropriate or advisable to enable the Company to comply with the Securities Act of 1933 and other federal and state securities laws in connection with the Registration Statement, and any and all amendments thereto (including pre- and post-effective amendments) or any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with exhibits and schedules thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable 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 all that said attorneys-in-fact and agents, or any of them, or their 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 date indicated.
Signature | Title | Date | |||||||||
/s/ Jason E. Brown Jason E. Brown | President and Chief Executive Officer (Principal Executive Officer) | December 9, 2020 | |||||||||
/s/ Ryan Stash Ryan Stash | Senior Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) | December 9, 2020 | |||||||||
/s/ Roderick Schultz Roderick Schultz | Vice President and Chief Accounting Officer (Principal Accounting Officer) | December 9, 2020 | |||||||||
/s/ Robert S. Herlin Robert S. Herlin | Chairman of the Board of Directors | December 9, 2020 | |||||||||
/s/ Edward J. DiPaolo Edward J. DiPaolo | Director | December 9, 2020 | |||||||||
/s/ William E. Dozier William E. Dozier | Director | December 9, 2020 | |||||||||
/s/ Kelly W. Loyd Kelly W. Loyd | Director | December 9, 2020 | |||||||||
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Exhibit 5.1
 | Mayer Brown LLP 700 Louisiana Street Suite 3400 Houston, TX 77002-2730 United States of America T: +1 713 238 3000 F: +1 713 238 4888 mayerbrown.com | ||||
| December 9, 2020 | |||||
| Board of Directors Evolution Petroleum Corporation 1155 Dairy Ashford Road, Suite 425 Houston, Texas 77079 | |||||
RE: Form S-8 Registration Statement of Evolution Petroleum Corporation
Evolution Petroleum Corporation 2016 Equity Incentive Plan (the “Plan”)
Gentlemen:
We have acted as counsel for Evolution Petroleum Corporation, a Nevada corporation (the “Company”), in connection with the referenced Registration Statement on Form S-8 (the “Registration Statement”) being filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and covering 2,500,000 shares of the Company’s common stock, $0.001 par value per share (the “Shares”), that may be purchased under the Plan.
As counsel to the Company, we have examined originals or copies certified to our satisfaction of the Company’s Articles of Incorporation, as amended and supplemented, the Amended Bylaws, resolutions of the Company’s Board of Directors and such other Company records, instruments, certificates and documents and such questions of law as we considered necessary or appropriate to enable us to express this opinion. As to certain facts material to our opinion, we have relied, to the extent we deem such reliance proper, upon certificates of public officials and officers of the Company. In rendering this opinion, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of photostatic copies.
Based upon and subject to the foregoing and to the assumptions, limitations and conditions set forth herein, we are of the opinion that, the Common Stock, when issued and delivered in accordance with the Plan, will have been legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are experts within the meaning of Section 11 of the Act or within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC.
We are admitted to practice law in the State of Texas, and we express no opinion as to matters under or involving any laws other than the laws of the State of Nevada.
This opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company or any other person, or any other document or agreement involved with issues addressed herein. We assume no obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinions expressed herein.
Mayer Brown is a global services provider comprising an association of legal practices that are separate entities including
Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP (England), Mayer Brown (a Hong Kong partnership)
and Tauil & Chequer Advogados (a Brazilian partnership).
739087718.2
| Mayer Brown LLP | |||||
| December 9, 2020 | |||||
| Page 2 | |||||
This opinion is furnished in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
Very truly yours,
/s/ Mayer Brown LLP
MAYER BROWN LLP
739087718.2
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated September 10, 2020, relating to the consolidated financial statements of Evolution Petroleum Corporation, appearing in the Annual Report (Form 10-K) for the year ended June 30, 2020.
/s/ Moss Adams LLP
Moss Adams LLP
Houston, Texas
December 9, 2020
Exhibit 23.3
DEGOLYER AND MACNAUGHTON
5001 SPRING VALLEY ROAD
SUITE 800 EAST
DALLAS, TEXAS 75244
December 9, 2020
Evolution Petroleum Corporation
1155 Dairy Ashford Road
Suite 425
Houston, Texas 77079
Ladies and Gentlemen:
As independent oil and gas consultants, we hereby consent to the use of the name DeGolyer and MacNaughton and to the incorporation by reference in the Registration Statement on the Form S-8 of Evolution Petroleum Corporation, and as referenced in the Annual Report on Form 10-K for the year ended June 30, 2020, of Evolution Petroleum Corporation, filed on September 10, 2020, of information from our report of third party dated August 10, 2020, and our reports entitled “Report as of June 30, 2018 on Reserves and Revenue of Certain Properties owned by Evolution Petroleum Corporation,” “Report as of June 30, 2019 on Reserves and Revenue of Certain Properties with interests attributable to Evolution Petroleum Corporation,” and “Report as of June 30, 2020 on Reserves and Revenue of Certain Properties with interests attributable to Evolution Petroleum Corporation” with respect to the reserves of Evolution Petroleum Corporation as of June 30, 2018, through June 30, 2020.
Very truly yours,
/s/ DeGolyer and MacNaughton
DeGOLYER and MacNAUGHTON
Texas Registered Engineering Firm F-716