Securities Registration Statement (simplified Form) (s-3/a)
March 07 2017 - 4:38PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on March 7, 2017
Registration No. 333-216191
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
Amendment
No. 1 To
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ZION
OIL & GAS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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20-0065053
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification Number)
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12655
North Central Expressway, Suite 1000
Dallas,
Texas 75243
(214)
221-4610
(Address,
including zip code, and telephone number, including area code
of
registrant’s principal executive offices)
Victor
G. Carrillo
Chief
Executive Officer
12655
North Central Expressway, Suite 1000
Dallas,
Texas 75243
(214)
221-4610
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
David
Aboudi
Pearl
Cohen Zedek Latzer Baratz LLP
1500
Broadway
New
York, New York 10036
(646)
878-0800
Approximate
date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
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. ☒
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 1.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 1.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 ☐
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Accelerated
filer
☐
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Non-accelerated
filer ☐
(Do
not check if a smaller reporting company)
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Smaller
reporting company ☒
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CALCULATION
OF REGISTRATION FEE
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Proposed
Maximum
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Title of Class of Securities to be Registered (1)
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Aggregate
Offering
Price (2)
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Amount of
Registration
Fee (3)
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Common Stock, par value $.01 per share
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—
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—
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Debt Securities
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—
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—
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Warrants
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—
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—
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Units
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—
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—
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Total
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$
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1
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$
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0
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(1)
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Pursuant
to Rule 415(a)(6), the issuer is filing this replacement registration statement covering approximately $102,350,000 in unsold
securities under the earlier registration statement effective March 31, 2014. Under the earlier registration statement,
there were registered thereunder such indeterminate number of shares of common stock, such indeterminate principal amount
of debt securities, such indeterminate number of warrants to purchase common stock or debt securities, and such indeterminate
number of units as shall have an aggregate initial offering price not to exceed $102,350,000. If any debt securities
are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal
amount as shall result in an aggregate initial offering price not to exceed $102,350,000, less the aggregate dollar amount
of all securities previously issued under the prior registration statement and hereunder. Any unsold securities continuing
to be registered hereunder may be sold separately or as units with other securities registered hereunder. The proposed maximum
initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by
the registrant of the securities registered hereunder. The securities registered also include such indeterminate number
of shares of common stock and amount of debt securities as may be issued upon conversion of or exchange for debt securities
that provide for conversion or exchange, upon exercise of warrants or pursuant to the anti-dilution provisions of any
such securities. In addition, pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include
such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder
as a result of stock splits, stock dividends or similar transactions.
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(2)
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The
proposed maximum aggregate offering price per class of security 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. Based on the reported sale price
of $1.29 of our common stock on the NASDAQ Global Market on February 17, 2017, the aggregate market value of our outstanding
common stock held by non-affiliates, or the public float, is approximately $53 million, calculated in accordance with General
Instruction I.B.6 of Form S-3. Pursuant to General Instructions I.B.6, we will not sell under this replacement
registration statement common stock or other securities with a market value exceeding one-third of our public float in any
12-month period; provided, however, if the aggregate market value of our public float equals or exceeds $75 million subsequent
to the date hereof, such General Instruction I.B.6 limitation shall not apply to sales made pursuant to this registration
statement on or subsequent to such date, and this registration statement shall be considered filed pursuant to General Instruction
I.B.1.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
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The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on
Form S-3 (Registration No. 333-216191) is being filed solely for the purpose of re-filing with the Securities and Exchange Commission
a replacement Exhibit 5.1 to the Registration Statement.
Accordingly this Amendment No.
1 consists solely of the facing page, this explanatory note, Part II of the Registration Statement, Exhibit 5.1, and the signature
page. The Amendment No. 1 does not modify any provision of the Registration Statement except as specifically noted herein.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses to be paid by us in connection with the offerings described in this Registration
Statement. All amounts are estimates, except for the SEC registration fee.
SEC registration fee
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$
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0
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Transfer agent’s and trustee’s fees and expenses
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*
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Printing and engraving expenses
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*
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Accounting fees and expenses
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*
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Legal fees and expenses
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*
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Miscellaneous expenses
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*
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Total
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$
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*
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*
These fees and expenses will be determined based on the amount and type of securities that may be issued from time to time
under this Registration Statement.
Item
15. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law and our certificate of incorporation and bylaws contain provisions for indemnification
of our officers and directors, and under certain circumstances, our employees and other persons. Our bylaws require us to indemnify
such persons to the fullest extent permitted by Delaware law. Each such person will be indemnified in any proceeding if such person
acted in good faith and in a manner that such person reasonably believed to be in, or not opposed to, our best interests. The
indemnification would cover expenses, including attorney's fees, judgments, fines and amounts paid in settlement. Our bylaws also
provide that we may purchase and maintain insurance on behalf of any of our present or past directors or officers insuring against
any liability asserted against such person incurred in their capacity as a director or officer or arising out of such status,
whether or not we would have the power to indemnify such person.
We
have no other indemnification provisions in our certificate of incorporation, bylaws or otherwise specifically providing for indemnification
of directors, officers and controlling persons against liability under the Securities Act.
Item
16. Exhibits.
See
the Exhibit Index on page 36, which is incorporated into this registration statement 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;
(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 SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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 the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the registration
statement is on Form S-3 or Form F-3 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 SEC 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 or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is a part of the registration statement.
(2)
That, for the purpose 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.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. 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 effective date, 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 effective date.
(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.
(6)
That: (i) for purposes of determining any liability under the Securities Act of 1933, the information omitted from
the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of
the registration statement as of the time it was declared effective; and (ii) for the purpose of determining any liability under
the Securities Act, each post-effective amendment that contains a form of prospectus 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.
(7)
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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(8)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a)
of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2)
of the Act.
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 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 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 certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Dallas, State of Texas, on March 7, 2017.
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ZION
OIL & GAS, INC.
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By:
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/s/
Victor G. Carrillo
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Name:
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Victor
G. Carrillo
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Title:
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Chief Executive Officer
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(Principal
Executive Officer)
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated:
Signature
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Title
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Date
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/s/ John M. Brown
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Executive Chairman of the Board of Directors
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March 7, 2017
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John M. Brown
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/s/ Dustin L. Guinn
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Executive Vice Chairman of the Board of Directors
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March 7, 2017
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Dustin L. Guinn
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(President and Chief Operating Officer)
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/s/ Victor G. Carrillo
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Chief Executive Officer and Director
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March 7, 2017
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Victor G. Carrillo
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/s/ Michael B. Croswell
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Chief Financial Officer
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March 7, 2017
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Michael B. Croswell
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(Principal Financial Officer and Principal Accounting
Officer)
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/s/ Paul Oroian
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Director
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March 7, 2017
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Paul Oroian
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/s/ Yehezkel Druckman
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Director
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March 7, 2017
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Yehezkel Druckman
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/s/ Forrest A. Garb
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Director
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March 7, 2017
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Forrest A. Garb
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/s/
Kent Siegel
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Director
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March 7, 2017
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Kent Siegel
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/s/ Gene
Scammahorn
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Director
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March 7, 2017
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Gene Scammahorn
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/s/
Justin W. Furnace
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Director
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March 7, 2017
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Justin
W. Furnace
/s/ William H. Avery
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Director and General Counsel
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March 7, 2017
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William H. Avery
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/s/ Martin
M. van Brauman
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Director
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March 7, 2017
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Martin M. van Brauman
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/s/ Ralph
F. DeVore
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Director
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March 7, 2017
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Ralph F. DeVore
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EXHIBIT
INDEX
Exhibit
Number
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Description
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1.1
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Form of Underwriting Agreement (1)
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3.1-I
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Certificate of Amendment to Amended and Restated Certificate of Incorporation (incorporated herein by reference to the Company’s Quarterly Report on Form 10-Q, for the quarter ended June 30, 2011, filed with the SEC on August 9, 2011, Exhibit 3.1 and to the Company’s Form 8-K, filed with the SEC on June 11, 2015, Exhibit 3(i).1.)*
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3.2
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Amended and Restated Bylaws of Zion Oil & Gas, Inc. (incorporated herein by reference to Exhibit 3(i).1 to the Company’s Form 8-K filed with the SEC on June 8, 2016)*
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4.1
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Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 to the Company’s Registration Statement on Form SB-2 as filed with the SEC on January 25, 2006)*
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4.2
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Form of Indenture for Debt Securities*
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4.3
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Form of Notes (1)
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4.4
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Form of Warrant (1)
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4.5
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Form of Unit Agreement (1)
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5.1
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Opinion of Pearl Cohen Zedek Latzer Baratz LLP
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23.1
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Consent of Pearl Cohen Zedek Latzer Baratz LLP (included in Exhibit 5.1).
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23.2
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Consent of Malone Bailey LLP*
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25.1
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Form T-1 Statement of Eligibility of Trustee for Indenture under the Trust Indenture Act of 1939 (1)
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(1)
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To
the extent applicable, to be filed by an amendment to this registration statement or as an exhibit to a report pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act.
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*
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Previously filed as an exhibit to the Registration Statement on Form S-3 (333-216191)
filed February 23, 2017 and incorporated herein by reference.
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