As filed with the Securities and Exchange Commission on June 26, 2018

 

Registration No. 333-         

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

Form S-8

 

 

 

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

 

 

 

ECO-STIM ENERGY SOLUTIONS, INC.

(Exact name of registrant as specified in its charter)

 

Nevada

(State or other jurisdiction of incorporation or organization)

 

1389

(Primary Standard Industrial Classification Code Number)

 

20-8203420

(I.R.S. Employer Identification Number)

 

2930 W. Sam Houston Pkwy N., Suite 275

Houston, Texas 77043

(281) 531-7200

 

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

 

Eco-Stim Energy Solutions, Inc. 2015 Stock Incentive Plan

 

(Full title of the plan)

 

 

 

Jon Christopher Boswell

2930 W. Sam Houston Pkwy N., Suite 275

Houston, Texas 77043

(713) 979-9143

 

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copy to:

Andrew W. Smetana

Vinson & Elkins L.L.P.

2801 Via Fortuna, Suite 100

Austin, Texas 78746

(512) 542-8417

 

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 Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

Large accelerated filer [  ]     Accelerated filer [  ]
           
Non-accelerated filer [  ] (Do not check if smaller reporting company)   Smaller Reporting Company [X]
           
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 7(a)(2)(B) of the Securities Act. [  ]

 

 

 

CALCULATION OF REGISTRATION FEE

 

Name of Plan   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

(3)

 
Eco-Stim Energy Solutions, Inc. 2015 Stock Incentive Plan  

Common stock, par

value $0.001 per share

  3,000,000 shares   $ 0.81   $ 2,430,000.00    $ 302.54 (3)

 

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional shares of common stock (the “Common Stock”) as may become issuable pursuant to the adjustment provisions of the Eco-Stim Energy Solutions, Inc. 2015 Stock Incentive Plan.

 

(2) The proposed maximum aggregate offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act based on the average of the high and low prices of the Common Stock as reported on the NASDAQ Capital Market on June 20, 2018.

 

(3) Pursuant to General Instruction E to Form S-8, a registration fee is only being paid with respect to the registration of an additional 3,000,000 shares of Common Stock under the 2015 Plan (as defined below).

 

 

 

 
 

 

Explanatory Note

 

Eco-Stim Energy Solutions, Inc., a Nevada corporation (the “Registrant”), is filing this Registration Statement pursuant to General Instruction E to Form S-8 to register the offer and sale of an additional 3,000,000 shares of Common Stock that may be issued under the 2015 Plan.

 

The Eco-Stim Energy Solutions, Inc. 2014 Stock Incentive Plan was amended and restated, and renamed the Eco-Stim Energy Solutions, Inc. 2015 Stock Incentive Plan (as amended from time to time, the “2015 Plan”) on May 14, 2015, and approved by the Registrant’s stockholders on June 30, 2015. The 2015 Plan was further amended on May 31, 2016 pursuant to the First Amendment to the 2015 Plan (the “First Amendment”), which increased the number of shares of Common Stock available under the 2015 Plan by 200,000 shares, and was approved by the Registrant’s stockholders on June 30, 2016. The 2015 Plan was further amended on June 15, 2017 pursuant to the Second Amendment to the 2015 Plan (the “Second Amendment”), which increased the number of shares of Common Stock available under the 2015 Plan by 5,000,000 shares, and was approved by the Registrant’s stockholders on June 15, 2017. The 2015 Plan was further amended on June 20, 2018 pursuant to the Third Amendment to the 2015 Plan (the “Third Amendment”), which increased the number of shares of Common Stock available under the 2015 Plan by 3,000,000 shares, and was approved by the Registrant’s stockholders on June 20, 2018.

 

Except as otherwise set forth below, the contents of the following Registration Statements on Form S-8 relating to the 2015 Plan, which were filed with the Securities and Exchange Commission (the “Commission”) on the dates indicated, are incorporated by reference into this Registration Statement as permitted by General Instruction E to Form S-8: (i) Form S-8 filed on February 19, 2015 (Commission File No. 333-202182), (ii) Post-Effective Amendment No. 1 to Form S-8 filed on February 20, 2015 (Commission File No. 333-202182), (iii) Form S-8 filed on September 23, 2015 (Commission File No. 333-207094); (iv) Form S-8 filed on September 9, 2016 (Commission File No. 333-213549); and (v) Form S-8 filed on July 26, 2017 (Commission File No. 333-219453).

 

PART II.

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8. Exhibits.

 

The Exhibits to this Registration Statement are listed in the Exhibit Index to this Registration Statement, which Exhibit Index is incorporated herein by reference.

 

 
 

 

signatures

 

Pursuant to the requirements of the Securities Act of 1933, the registrant 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 June 26, 2018.

 

  ECO-STIM ENERGY SOLUTIONS, INC.
   
  By: /s/ Jon Christopher Boswell
    Jon Christopher Boswell
    President and Chief Executive Officer
     
  By: /s/ Alexander Nickolatos
    Alexander Nickolatos
    Chief Financial Officer and Assistant Secretary

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Alexander Nickolatos and Christopher J. Arntzen, or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement and any subsequent registration statement filed by the registrant pursuant to Rule 462(b) of the Securities Act which relates to this Registration Statement, and to file the same and all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, 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 below by the following persons in the capacities and on the dates indicated.

 

Signature   Capacity   Date
         

/s/ Jon Christopher Boswell

  Director, President and Chief Executive Officer   June 26, 2018
Jon Christopher Boswell   (Principal Executive Officer)    
         

/s/ Alexander Nickolatos

  Chief Financial Officer and Assistant Secretary   June 26, 2018
Alexander Nickolatos   (Principal Financial and Accounting Officer)    
         

/s/ Brian R. Stewart

  Chairman   June 26, 2018
Brian R. Stewart        
         

/s/ Bjarte Bruheim

  Director   June 26, 2018
Bjarte Bruheim        
         

/s/ Christopher A. Krummel

  Director   June 26, 2018
Christopher A. Krummel        
         

/s/ Timothy L. Reynolds

  Director   June 26, 2018
Timothy L. Reynolds        
         

/s/ Todd R. Snyder

  Director   June 26, 2018
Todd R. Snyder        
         

/s/ Andrew Teno

  Director   June 26, 2018
Andrew Teno        

 

 
 

 

EXHIBIT INDEX

 

Exhibit Number   Description
     
4.1*   Third Amendment to the Eco-Stim Energy Solutions, Inc. 2015 Stock Incentive Plan.
     
5.1*   Opinion of Woodburn and Wedge as to the legality of the securities being registered.
     
23.1   Consent of Woodburn and Wedge (included in Exhibit 5.1).
     
23.2*  

Consent of Whitley Penn LLP.

     
24.1   Power of Attorney (included on the signature page to this Registration Statement).

 

*      Filed herewith.

 

 
 

 

 

Exhibit 4.1

 

THIRD AMENDMENT TO THE

ECO-STIM ENERGY SOLUTIONS, INC.

2015 STOCK INCENTIVE PLAN

 

THIS THIRD AMENDMENT (the “ Third Amendment ”) to the Eco-Stim Energy Solutions, Inc. 2015 Stock Incentive Plan, as amended from time to time (the “ Plan ”), is made by Eco-Stim Energy Solutions, Inc. (the “ Company ”).

 

W I T N E S S E T H :

 

WHEREAS , the Company previously adopted the Plan, under which the Company is authorized to grant equity-based incentive awards to certain employees and other service providers of the Company and its subsidiaries;

 

WHEREAS , Paragraph XIII of the Plan provides that the Company’s board of directors (the “ Board ”) may amend the Plan from time to time, except that any amendment to increase the number of shares of common stock of the Company (the “ Shares ”) that may be issued under the Plan must be approved by the stockholders of the Company; and

 

WHEREAS , the Board now desires to amend the Plan to increase the number of Shares available for awards under the Plan by 3,000,000 Shares (prior to giving effect to any reverse stock split that is approved by the stockholders of the Company), subject to approval by the stockholders of the Company, and make certain other changes described herein.

 

NOW, THEREFORE, BE IT RESOLVED , that, the Plan shall be amended as of June 20, 2018, subject to approval by the Company’s stockholders, as set forth below:

 

1.       Paragraph II of the Plan is hereby amended by adding the following definition thereto in alphabetical order:

 

“ Third Amendment ” means the Third Amendment to the Eco-Stim Energy Solutions, Inc. 2015 Stock Incentive Plan, effective as of June 20, 2018.

 

2.       Paragraph II(g) of the Plan is hereby deleted and replaced in its entirety with the following:

 

“ Committee ” is defined in Paragraph IV(a).

 

3.       Paragraph II(y) of the Plan is hereby deleted and replaced in its entirety with the following:

 

“ Performance Measure ” means a performance measure established by the Committee, in its sole discretion, which may differ among Awards granted to any one Participant or to different Participants.

 

 
 

 

4.       Paragraph IV(a) of the Plan is hereby deleted and replaced in its entirety with the following:

 

Composition of Committee . The Plan shall be administered by a committee of two or more Directors appointed by the Board to administer the Plan (the “ Committee ”); provided that, in the absence of such an appointment, the Board shall serve as the Committee.

 

5.       Paragraph V(a) of the Plan is hereby deleted and replaced in its entirety with the following:

 

Shares Subject to the Plan and Award Limits . Subject to adjustment in the same manner as provided in Paragraph XII with respect to shares of Common Stock subject to Options then outstanding, the aggregate maximum number of shares of Common Stock that may be issued under the Plan, and the aggregate maximum number of shares of Common Stock that may be issued under the Plan through Incentive Stock Options, shall not exceed 9,200,000 shares of Common Stock (subject to adjustment to reflect any reverse stock split that is approved by the stockholders of the Company), which is inclusive of shares of Common Stock issued as of or prior to the effective date of the Third Amendment pursuant to an Award under the Plan and/or the Prior Plan and shares of Common Stock that may be issuable after the effective date of the Third Amendment pursuant to an Award granted under the Plan or the Prior Plan, as applicable, prior to, on or after such effective date. Shares shall be deemed to have been issued under the Plan only to the extent actually issued and delivered pursuant to an Award. To the extent that an Award lapses or the rights of its holder terminate, any shares of Common Stock subject to such Award shall again be available for the grant of an Award under the Plan. In addition, shares issued under the Plan and forfeited back to the Plan, shares surrendered in payment of the exercise price or purchase price of an Award, and shares withheld for payment of applicable employment taxes and/or withholding obligations associated with an Award shall again be available for the grant of an Award under the Plan. Notwithstanding any provision herein to the contrary, the aggregate grant date fair value (computed as of the date of grant in accordance with applicable financial accounting rules) of all Awards granted to any individual, non-employee Director during any single calendar year beginning on or after January 1, 2018 shall not exceed (x) $500,000, or $600,000 in the first year an individual becomes a non-employee Director, or (y) solely with respect to the chairman of the Board, $1,200,000; provided, however, the foregoing limitations shall be determined without regard to grants of Awards, if any, made to a non-employee Director during any period in which such individual was an employee or Consultant.”

 

6.       The phrase “Subject to any limitations imposed under section 162(m) of the Code,” in the first sentence of Paragraph VIII(d) of the Plan is hereby deleted in its entirety and the first letter of the first word immediately following such phrase in the first sentence of Paragraph VIII(d) of the Plan is hereby capitalized.

 

 
 

 

7.       The second sentence of Paragraph IX(b) of the Plan is hereby deleted in its entirety.

 

8.       The amendment previously made to Paragraph XII(b) of the Plan pursuant to the Second Amendment to the Plan is hereby deleted in its entirety and Paragraph XII(b) of the Plan is hereby amended by adding the phrase “(including, without limitation, any reverse stock split)” immediately after the phrase “consolidation of shares of Common Stock” appearing therein.

 

FURTHER RESOLVED , that except as amended hereby, the Plan shall continue to read in the current state and is specifically ratified and reaffirmed.

 

[Remainder of Page Intentionally Left Blank.]

 

 
 

 

Exhibit 5.1

 

WOODBURN AND WEDGE  
Attorneys and Counselors At Law
Sierra Plaza
6100 Neil Road, Suite 500
Reno, Nevada 89511-1149
Telephone (775) 688-3000
Facsimile (775) 688-3088

 

Gregg P. Barnard

E-MAIL: gbarnard@woodburnandwedge.com

DIRECT DIAL: (775) 688-3025

 

June 26, 2018

 

Eco-Stim Energy Solutions, Inc.

2930 W. Sam Houston Pkwy N., Suite 275

Houston, Texas 770473

 

Ladies and Gentlemen:

 

We have acted as special Nevada counsel to Eco-Stim Energy Solutions, Inc., a Nevada corporation (the “ Company ”), in connection with the Company’s filing on the date hereof of a Registration Statement on Form S-8, (the “ Registration Statement ”) with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Securities Act ”). The Registration Statement relates to the registration of 3,000,000 shares of the Company’s Common Stock, par value $0.001 per share (the “ Additional 2015 Plan Shares ”), which may be issued from time to time in accordance with the terms of the Company’s 2015 Stock Incentive Plan as amended by that certain First Amendment thereto effective June 30, 2016 and as further amended by that certain Second Amendment thereto effective June 15, 2017 (the “ Second Amendmen t”) and that Third Amendment thereto dated June 20, 2018 (the “ Third Amendment” and as so amended, the “ 2015 Plan ”). As special Nevada counsel for the Company, we advise you as follows.

 

In connection with rendering this opinion, we have examined or are familiar with the Articles of Incorporation of the Company, as amended to the date hereof, the Bylaws of the Company, as amended to the date hereof, the corporate proceedings with respect to the 2015 Plan and the Registration Statement, and such other certificates, instruments and documents as we have considered necessary or appropriate for purposes of this opinion. As to any facts material to our opinion, we have, when relevant facts were not independently established, relied upon the aforesaid records, certificates and documents. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. We have also assumed that: (i) all of the Additional 2015 Plan Shares will be issued pursuant to and in accordance with the terms of the 2015 Plan, issued for the consideration described in the 2015 Plan as currently in effect, and that none of the Additional 2015 Plan Shares will be issued for less than $0.001 per share; and (ii) all actions required to be taken under the 2015 Plan by the Board of Directors of the Company and any committee thereof will be taken by the Board of Directors of the Company and any committee thereof, respectively.

 

 
 

 

Eco-Stim Energy Solutions, Inc.

June 26, 2018

Page 2

 

Based on the foregoing and subject to the assumptions, limitations and qualifications set forth herein, we advise you as follows:

 

1. The Company is a corporation organized and legally existing under the laws of the State of Nevada and is in good standing under said laws.

 

2. The Additional 2015 Plan Shares have been duly authorized and, when issued in accordance with the terms of the 2015 Plan and the terms of any instrument or agreement relating to any of the grants or awards thereunder to which such Additional 2015 Plan Shares relate, such Additional 2015 Plan Shares will be legally issued, fully paid and nonassessable.

 

The foregoing opinion is limited to the matters expressly set forth herein and no opinion may be implied or inferred beyond the matters expressly stated. We disclaim any obligation to update this letter for events occurring after the date of this letter, or as a result of knowledge acquired by us after that date, including changes in any of the statutory or decisional law after the date of this letter. We are members of the bar of the State of Nevada. We express no opinion as to the effect and application of any United States federal law, rule or regulation or any securities or blue sky laws of any state, including the State of Nevada. We are not opining on, and assume no responsibility as to, the applicability to or the effect on any of the matters covered herein of the laws of any other jurisdiction, other than the laws of Nevada as presently in effect.

 

We hereby consent:

 

1. To being named in the Registration Statement and in any amendments thereto as counsel for the Company;

 

2. To the statements with reference to our firm made in the Registration Statement; and

 

3. To the filing of this opinion as an exhibit to the Registration Statement.

 

In giving the foregoing consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.

 

  Sincerely,
     
  WOODBURN and WEDGE
     
  By: /s/ Gregg P. Barnard
    Gregg P. Barnard

 

 
 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 19, 2018, with respect to the consolidated balance sheets of Eco-Stim Energy Solutions, Inc. as of December 31, 2017 and 2016, and the related consolidated statements of operations, cash flows, and changes in stockholders’ equity for each of the years in the two-year period ended December 31, 2017, included in the company’s Annual Report on Form 10-K for the year ended December 31, 2017, filed with the Securities and Exchange Commission.

 

/s/ Whitley Penn LLP

 

Houston, Texas

June 26, 2018