S-8 1 forms8.htm S-8
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM S-8
 
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
 
 
TENGASCO, INC.
(Exact Name of Registrant as Specified in Its Charter)
 
Delaware
  
87-0267438
(State or Other Jurisdiction of Incorporation or Organization)
  
(I.R.S. Employer Identification No.)
 
8000 E. Maplewood Avenue, Suite 130
Greenwood Village, Colorado 80111
(Address of Principal Executive Offices)
 
TENGASCO, INC. 2018 STOCK INCENTIVE PLAN
(Full Title of the Plan)

Michael J. Rugen, CEO, Tengasco, Inc.
8000 E. Maplewood Avenue, Suite 130
Greenwood Village, Colorado 80111
(Name and Address of Agent for Service)
(720) 420-4460
(Telephone Number, Including Area Code, of Agent for Service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth 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 ☒
Emerging growth company ☐
  
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act  □
 
CALCULATION OF REGISTRATION FEE
 
Title 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 (2)
  
Common Stock
    
316,724
    
$
1.01
    
$
319,891
    
$
39.83
  

(1)
This is the number of shares reserved for issuance under the Tengasco, Inc. 2018 Stock Incentive Plan, which has been approved by the Registrant’s Board of Directors and by a majority of stockholders by written consents.  Pursuant to Rule 416 under the Securities Act of 1933, as amended this Registration Statement shall also cover any additional shares that may become issuable under the Tengasco, Inc. 2018 Stock Incentive Plan by operation of anti-dilution provisions.
(2)
The proposed maximum offering price per share and the proposed maximum aggregate offering price have been estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h)(1) of Rule 457 promulgated under the Securities Act, based upon the average of the high and low prices of the Registrant’s Common Stock as quoted on the NYSE American exchange on September 17, 2018.
 
PART I
 
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
Tengasco, Inc. (the “Registrant”) has sent or given or will send or give documents containing the information specified by Part I of this Form S-8 Registration Statement (the “Registration Statement”) to participants in the plan to which this Registration Statement relates, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registrant is not filing such documents with the SEC, but these documents constitute (along with the documents incorporated by reference into the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.
Incorporation of Documents by Reference.
 
The following documents, which have been filed with the Commission by Registrant, are incorporated by reference in this Registration Statement, as of their respective dates:
 

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of filing of such documents.
 
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Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein), modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 4.
Description of Securities.

Not applicable.

Item 5.
Interests of Named Experts and Counsel.

As counsel for the Registrant, Cary V. Sorensen has given an opinion upon the validity of the securities being registered and other legal matters in connection with the registration or offering of such securities. That opinion is made an exhibit to this Registration Statement.  Mr. Sorensen is, and was at the time of giving such opinion, an officer and full time salaried employee of Registrant, as Vice President and General Counsel.  The fair market value of all securities of the Registrant owned, received and to be received, or subject to options, warrants or rights received or to be received by Mr. Sorensen does not exceed $50,000.  Mr. Sorensen will not receive in connection with the offering, any other substantial interest, direct or indirect, in the Registrant.

Item 6.
Indemnification of Directors and Officers.

The Registrant is incorporated in Delaware.  Section 145(a) of the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may indemnify any person 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 (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding 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 or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
 
Section 145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if he or she acted under similar standards to those set forth above, except that no indemnification may be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine that despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper.
 
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Section 145 of the DGCL further provides that, to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsection (a) and (b) or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith; that indemnification provided for by Section 145 of the DGCL shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation may purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against such officer or director and incurred by him or her in any such capacity or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liabilities under Section 145 of the DGCL.
 
The Registrant’s amended certificate of incorporation provides that directors of the Company shall have no personal liability to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent that the DGCL or any other law of the State of Delaware permits the limitation or elimination of the liability of directors.
 
The Registrant’s amended bylaws provide that the Company will indemnify its directors and officers to the fullest extent permitted by Delaware law.  The Registrant’s amended bylaws also permit the Company to purchase insurance on behalf of any officer, director, employee or other agent for any liability arising out of that person’s actions as its officer, director, employee or agent, regardless of whether Delaware law would permit indemnification.  Any amendment, repeal or modification of these provisions will be prospective only and would not affect any limitation on liability of a director for acts or omissions that occurred prior to any such amendment, repeal or modification.  The Company has purchased and maintains directors’ and officers’ liability insurance pursuant to these provisions.
 
The Company has entered into indemnification agreements with each of its current directors and officers and intends to enter into indemnification agreements with each of its future directors and officers.  These agreements require the Company to indemnify these individuals to the fullest extent permitted under Delaware law against liability that may arise by reason of their service to the Company, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.  The Company believes that the indemnification agreements will facilitate its ability to continue to attract and retain qualified individuals to serve as directors and officers.
 
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”), may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed 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.

Item 7.
Exemption from Registration Claimed.

None.
 
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Item 8.
Exhibits.

The following exhibits are filed with or incorporated by reference into this Registration Statement.

4.1
Tengasco, Inc. 2018 Stock Incentive Plan, incorporated by reference to Appendix A to Registrant’s Information Statement on Schedule 14C filed with the Securities and Exchange Commission on August 27, 2018.
5.1*
Opinion of Cary V. Sorensen
23.1*
Consent of Moss Adams LLP
23.2*
Consent of Hein & Associates LLP
23.2
Consent of Cary V. Sorensen (contained in Exhibit 5.1 to this Registration Statement)
24.1
Power of Attorney (contained on the signature pages of this Registration Statement)
*Indicates filed with 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) 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 a 20% 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;
 
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
 
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(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.
 
(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 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 the 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 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 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 on September 20, 2018 in Greenwood Village, Colorado.
 
 
TENGASCO, INC.
   
 
By
/s/ Michael J. Rugen
  
   
Michael J. Rugen
  
   
Chief Executive Officer
  
 
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POWER OF ATTORNEY
 
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears below hereby constitutes and appoints Michael J. Rugen and Cary V. Sorensen, or either of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including without limitation, post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature
Title
Date
     
s/ Peter E. Salas
Director
September 20, 2018
Peter E. Salas
    
     
s/ Matthew K. Behrent
Director
September 20, 2018
Matthew K. Behrent
    
     
s/ Richard M. Thon
Director
September 20, 2018
Richard M. Thon
    
 
EXHIBIT INDEX

Exhibit Number
Description
Tengasco, Inc. 2018 Stock Incentive Plan, incorporated by reference to Appendix A to Registrant’s Information Statement on Schedule 14C filed with the Securities and Exchange Commission on August 27, 2018.
Opinion of Cary V. Sorensen
Consent of Moss Adams LLP
Consent of Hein & Associates LLP
Consent of Cary V. Sorensen (contained in Exhibit 5.1 to this Registration Statement)
Power of Attorney (contained on the signature pages of this Registration Statement)
*Indicates filed with this Registration Statement.
 
 
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