As
filed with the Securities and Exchange Commission on November 10,
2008
Registration
No. 333-154790
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
No. 1 TO
FORM S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
KAL
ENERGY, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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7389
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98-0360062
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(State
or other jurisdiction of incorporation or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
No.)
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World
Trade Center 14th Floor,
Jl.
Jenderal Sudirman Kav. 29-31
Jakarta,
Indonesia 12920
+62
21 5211110
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Jorge
Nigaglioni
Chief
Financial Officer
KAL
Energy, Inc.
World
Trade Center 14th Floor,
Jl.
Jenderal Sudirman Kav. 29-31
Jakarta,
Indonesia 12920
+62
21 5211110
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
Copies
to:
Shivbir
S. Grewal, Esq.
Michael
L. Lawhead, Esq.
Stradling
Yocca Carlson & Rauth
660
Newport Center Drive, Suite 1600
Newport
Beach, California 92660
(949)
725-4000
Approximate
date of commencement of proposed sale to the public:
As soon
as practicable after this Registration Statement becomes effective.
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, 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 post-effective amendment filed pursuant to Rule 462(d) 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.
¨
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:
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Large
accelerated filer
£
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Accelerated
filer
£
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Non-accelerated
filer
£
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Smaller
reporting company
R
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to
be Registered (1)
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Proposed Maximum
Offering Price
Per Share(2)
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common
Stock, $0.0001 par value per share
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43,686,734
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$
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0.06
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$
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2,511,987.21
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$
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140.17
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(3)
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(1)
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All
shares of common stock registered pursuant to this registration
statement
are to be offered by the selling stockholders. In accordance with
Rule 416 under the Securities Act, the registrant is also registering
hereunder an indeterminate number of shares that may be issued
and resold
resulting from stock splits, stock dividends or similar
transactions.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration
fee
pursuant to Rule 457(c) promulgated under the Securities Act of
1933, as
amended, based on the average of the high and low sales prices
of our
common stock as reported by the National Association of Securities
Dealers’ Over-The-Counter Bulletin Board on October 27,
2008.
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(3)
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Previously
paid on October 28, 2008.
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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 of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
Amendment No. 1 to the Registration Statement on
Form S-1 of KAL Energy, Inc. (File No. 333-154790) is being filed solely
for the
purpose of (i) amending the Exhibit Index in Item 16 of Part II of the
Registration Statement and (ii) filing Exhibits 5.1 and 23.2. No changes or
additions are being made hereby to the prospectus that forms a part of
the
Registration Statement. Accordingly, the prospectus has been omitted from
this
filing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the costs and expenses payable by
us
in connection with the issuance and distribution of the common stock being
registered.
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SEC
registration fee
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$
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140.17
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Legal
fees and expenses
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15,000.00
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Accountants’
fees and expenses
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Miscellaneous
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–
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Total
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$
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Item
14.
Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law, or the DGCL, provides that a
corporation may indemnify any person made a party to an action (other than
an
action by or in the right of the corporation) by reason of the fact that he
or
she was a director, officer, employee or agent of the corporation or was serving
at the request of the corporation against expenses (including attorneys’ fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action if he or she acted in
good
faith and in a manner he or she reasonably believed to be in, or not opposed
to,
the best interests of the corporation and, with respect to any criminal action
(other than an action by or in the right of the corporation), has no reasonable
cause to believe his or her conduct was unlawful.
Item
15.
Recent Sales of Unregistered Securities.
On
March
12, 2008, we entered into subscription agreements with 24 investors pursuant
to
which we agreed to sell an aggregate of 60,686,732 shares of common stock to
the
investors at a purchase price of $0.15 per share for potential gross proceeds
to
us of approximately $9,103,010. We refer to this financing as the March 2008
Financing. One of the original investors entered into a side agreement to offer
a portion of its subscription to an additional investor prior to closing,
resulting in 25 total investors for the March 2008 Financing. The closing of
the
March 2008 Financing was expected to occur on a rolling basis through June
15,
2008.
One
investor in the March 2008 Financing initially subscribed to purchase 26,666,667
shares of common stock at $0.15 per share for an aggregate purchase price of
approximately $4,000,000. Such investor had previously advanced $700,000 to
us
as part of the outstanding balance for its subscribed shares. We informed such
investor that the deadline for payment of the remaining balance of $3,300,000
would be June 13, 2008. On June 13, 2008, such investor informed us that it
would be unable to tender payment of the remaining balance on that date. On
June
17, 2008, we and the investor amended such investor’s subscription agreement to
reduce the number of subscribed shares from 26,666,667 to 4,666,667 for an
aggregate purchase price of approximately $700,000. We accepted such investor’s
amended subscription for the reduced number of shares and agreed to reduce
the
total size of the March 2008 Financing from 60,686,732 offered shares to
38,686,732 offered shares for total gross proceeds to us of approximately
$5,803,010. We closed the March 2008 Financing on June 17, 2008.
On
June
10, 2007, we entered into subscription agreements with 3 investors pursuant
to
which we agreed to sell an aggregate of 937,500 shares of common stock to the
investors at a purchase price of $0.80 per share, resulting in net proceeds
to
us of approximately $750,000. We refer to this financing as the June 2007
Financing. We also agreed to issue the investors warrants to purchase up to
an
aggregate of 937,500 shares of common stock at an exercise price of $1.428
per
share. The closing of the June 2007 Financing occurred on June 10,
2007.
Subsequent
to the closing of the June 2007 Financing, a dispute arose between us and the
investors as a result of administrative non-conformance relating to the
subscription agreements. On June 17, 2008, our board of directors agreed to
resolve the dispute by restructuring the terms of the June 2007 Financing and
entering into an amended and restated subscription agreement with the investors.
We entered into the amended and restated subscription agreement with the
investors on June 27, 2008. Pursuant to the restructuring, we reduced the
purchase price for the shares of common stock issued in the June 2007 Financing
to $0.15 per share and issued an aggregate of 4,062,500 additional shares of
common stock to the investors, resulting in the sale and issuance of an
aggregate total of 5,000,000 shares of common stock to the investors. In
addition, we and the investors agreed to cancel and terminate the warrants,
which were not previously issued by us to the investors. The restructuring
did
not change the gross proceeds received by us from the June 2007 Financing,
which
remain approximately $750,000.
Simultaneously
with closing the transactions contemplated by the reorganization agreement
with
Thatcher, dated as of February 9, 2007, we accepted subscriptions for a total
of
17,615,000 shares of our common stock, at a purchase price of $0.20 per share,
from a group of accredited investors. We received gross proceeds of $3,523,000
from the offering, and net cash proceeds of $3,455,000, after deducting a
finder’s fee of $68,000 which was payable in cash.
In
addition, we issued shares of our common stock as compensation for services
rendered in connection with such offerings, including, but not limited to,
finder’s fees.
The
shares of common stock sold in the private placement offerings were offered
and
sold in reliance upon exemptions from registration pursuant to Regulation S
promulgated under the Securities Act. The shares of our common stock were
offered and sold in “offshore transactions,” as defined in Regulation S, and no
“directed selling efforts,” as defined in Regulation S, were made in the United
States by us, a distributor of our shares of common stock, any of their or
our
respective affiliates, or any person acting on behalf of any of the foregoing.
In addition, the subscription agreements for these private placement offerings
contain representations to support our reasonable belief that the investors
in
such offerings were non-“U.S. persons,” as defined by Regulation
S.
Pursuant
to the reorganization agreement with Thatcher, we issued 32,000,000 shares
of
our common stock, which we refer to as the Reorganization Shares, to the
shareholders of Thatcher in exchange for 100% of the common shares of Thatcher.
The issuance of the Reorganization Shares to the shareholders of Thatcher
pursuant to the reorganization agreement was exempt from registration under
the
Securities Act pursuant to Section 4(2) thereof.
Item
16. Exhibits and Financial Statement Schedules.
(a)
The
exhibits set forth commencing on page II-4 are included herein or
incorporated by reference.
(b)
Financial
Statement Schedules.
The
financial statement schedules have been omitted because they are not applicable,
not required, or the information is included in the consolidated financial
statements or notes thereto.
Item
17.
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) 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% 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.
(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.
(5)
That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on behalf of
the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv)
Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b)
Insofar as indemnification by the registrant 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 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 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statement on Form S-1 to be signed on its behalf
by the undersigned, thereunto duly authorized, in Jakarta, Indonesia, on
November 10, 2008.
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KAL
ENERGY, INC.
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By:
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/s/
Jorge Nigaglioni
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Name:
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Jorge
Nigaglioni
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Title:
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Chief
Financial Officer
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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.
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Name
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Title
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Date
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/s/
William Bloking
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President and Chairman of the Board
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November
10, 2008
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William Bloking
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(Principal Executive Officer)
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/s/
Jorge Nigaglioni
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Chief Financial Officer
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Jorge Nigaglioni
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(Principal Financial and Accounting Officer)
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*
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Director
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Andrew Caminschi
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*
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Director
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Antonio Varano
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*By:
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/s/
Jorge Nigaglioni
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Jorge
Nigaglioni
Attorney-in-fact
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EXHIBIT
INDEX
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Exhibit
No.
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Description
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2.1
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Agreement
and Plan of Reorganization, dated as of December 29, 2006, by and
between
KAL Energy, Inc. and Thatcher Mining Pte. Ltd (incorporated by
reference
to Exhibit 2.1 to our Current Report on Form 8-K filed with the
Securities
and Exchange Commission on January 8, 2007).
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3.1
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Certificate
of Incorporation of KAL Energy, Inc. (incorporated by reference
to Exhibit
3.1 to our Registration Statement on Form SB-2 filed with the Securities
and Exchange Commission on July 26, 2002).
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3.1.1
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Certificate
of Amendment to Certificate of Incorporation of KAL Energy, Inc.,
filed
with the Delaware Secretary of State on March 2, 2007 (incorporated
by
reference to Exhibit 3.1.1 to our Registration Statement on Form
SB-2, as
amended, filed with the Securities and Exchange Commission on May
15,
2007).
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3.2
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Bylaws
of KAL Energy, Inc. (incorporated by reference to Exhibit 3.2 to
our
Registration Statement on Form SB-2 filed with the Securities and
Exchange
Commission on July 26, 2002).
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5.1
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Opinion
of Stradling Yocca Carlson & Rauth, a Professional
Corporation.*
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10.1
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KAL
Energy, Inc. 2007 Stock Incentive Plan (incorporated by reference
to
Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities
and Exchange Commission on March 8, 2007).+
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10.2
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Form
of Stock Option Agreement (I) under the KAL Energy, Inc. 2007 Stock
Incentive Plan (incorporated by reference to Exhibit 10.2 to our
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
March 8, 2007).+
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10.3
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Form
of Stock Option Agreement (II) under the KAL Energy, Inc. 2007
Stock
Incentive Plan (incorporated by reference to Exhibit 10.3 to our
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
March 8, 2007).+
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10.4
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Cooperation
and Investment Agreement, dated as of January 7, 2007, by and among
PT
Bunyut Bara Mandiri, Thatcher Mining Pte Ltd., Fitri S. Astuty
Goodwin and
Sri Purwani (incorporated by reference to Exhibit 10.3 to our Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
February 15, 2007).
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10.5
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Cooperation
and Investment Agreement, dated as of January 7, 2007, by and among
PT
Graha Panca Karsa, Thatcher Mining Pte Ltd., Fitri S. Astuty Goodwin
and
Sri Purwani (incorporated by reference to Exhibit 10.4 to our Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
February 15, 2007).
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10.6
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Royalty
Agreement, dated as of December 29, 2006, by and among Essendon
Capital
Ltd., Carlton Corp., Concord International Inc., Thatcher Mining
Pte Ltd.
and KAL Energy (incorporated by reference to Exhibit 10.5 to our
Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
February 15, 2007).
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10.6.1
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Amendment
No. 1 to Royalty Agreement, dated as of October 1, 2008, by and
between
KAL Energy, Concord International and Thatcher Mining Pte. Ltd
(incorporated by reference to Exhibit 10.1 to our Current Report
on Form
8-K filed with the Securities and Exchange Commission on October
6,
2008).
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10.7
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Form
of Subscription Agreement (incorporated by reference to Exhibit
10.1 to
our Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 17, 2007).
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10.8
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Form
of Warrant to Purchase Common Stock (incorporated by reference
to Exhibit
10.2 to our Current Report on Form 8-K filed with the Securities
and
Exchange Commission on October 17, 2007).
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10.9
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Form
of Subscription Agreement for Private Placement Offering of Common
Stock
(incorporated by reference to Exhibit 10.1 to our Current Report
on Form
8-K filed with the Securities and Exchange Commission on March
17,
2008).
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10.10
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Form
of Amended and Restated Subscription Agreement (incorporated by
reference
to Exhibit 10.1 to our Current Report on Form 8-K filed with the
Securities and Exchange Commission on June 30, 2008).
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10.11
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Engagement
Letter Agreement, dated as of September 9, 2008, by and between
KAL Energy
and Grayling Global (incorporated by reference to Exhibit 10.1
to our
Amendment No. 1 to Current Report on Form 8-K filed with the Securities
and Exchange Commission on September 17, 2008).
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10.12
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Compensation
Agreement, dated as of September 9, 2008, by and between KAL Energy
and
William Bloking (incorporated by reference to Exhibit 10.2 to our
Amendment No. 1 to Current Report on Form 8-K filed with the Securities
and Exchange Commission on September 17, 2008).+
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10.13
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Form
of Forfeiture Agreement, dated as of September 17, 2008, by and
between
KAL Energy and the stockholder named therein (incorporated by reference
to
Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities
and Exchange Commission on September 22, 2008).
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10.14
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Employment
Agreement, dated as of October 1, 2008, by and between KAL Energy
and
Jorge Nigaglioni (incorporated by reference to Exhibit 10.2 to
our Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
October 6, 2008).+
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10.15
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Employment
Agreement, dated as of October 1, 2008, by and between KAL Energy
and
Andrew Caminschi (incorporated by reference to Exhibit 10.2 to
our Current
Report on Form 8-K filed with the Securities and Exchange Commission
on
October 6, 2008).+
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16.1
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Letter
dated March 12, 2007 from Morgan & Company to the Securities and
Exchange Commission (incorporated by reference to Exhibit 16.1
to our
Current Report on Form 8-K filed with the Securities and Exchange
Commission on March 12, 2007).
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23.1
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Consent
of Kabani and Company, Inc., Independent Registered Public Accounting
Firm.**
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23.2
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Consent
of Stradling Yocca Carlson & Rauth (see
Exhibit 5.1).*
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24.1
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Power
of Attorney (included on the signature page
hereto).**
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+
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Indicates
management contract or compensatory plan or
arrangement
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Grafico Azioni KAL Energy (CE) (USOTC:KALG)
Storico
Da Nov 2024 a Dic 2024
Grafico Azioni KAL Energy (CE) (USOTC:KALG)
Storico
Da Dic 2023 a Dic 2024
