formposex.htm
As
filed with the Securities and Exchange Commission on November 27,
2009
Registration
No. 333-161319
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Post-Effective
Amendment No. 1
to
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOUSTON
AMERICAN ENERGY CORP.
(Exact
name of registrant as specified in its charter)
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Delaware
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76-0675953
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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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801
Travis, Suite 1425
Houston,
TX 77002
(713)
222-6966
(Address,
including zip code, and telephone number, including
area
code, of registrant’s principal executive offices)
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John
F. Terwilliger
Chief
Executive Officer and President
Houston
American Energy Corp.
801
Travis, Suite 1425
Houston,
TX 77002
Telephone:
(713) 222-6966
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
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With
a Copy to:
Michael
W. Sanders, Esq.
20333
S.H. 249, Suite 600
Houston,
TX 77002
Telephone:
(832) 446-2599
Facsimile:
(832) 446-2424
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Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this Registration Statement.
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. T
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. T Registration
No. 333-161319
If this
form is a registration statement pursuant to General Instruction I.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 I.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
definition 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 T
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Non-accelerated
filer £
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Smaller
reporting company £
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EXPLANATORY
NOTE
This
Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (File
No. 333-161319) is being filed pursuant to Rule 462(d) solely for the purpose of
adding Exhibit 23.5 to such Registration Statement.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the fees and expenses incurred or expected to be
incurred by Houston American Energy Corp. in connection with the issuance and
distribution of the securities being registered hereby, other than underwriting
discounts and commissions. All of the amounts shown are estimated except the SEC
registration fee. Estimated fees and expenses can only reflect information that
is known at the time of filing this registration statement and are subject to
future contingencies, including additional expenses for future
offerings.
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Securities
and Exchange Commission registration fee
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$ |
4,410.00 |
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Transfer
agent’s and trustee’s fees and expenses
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5,000.00 |
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Printing
and engraving expenses
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10,000.00 |
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Legal
fees and expenses
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5,000.00 |
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Accounting
fees and expenses
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7,000.00 |
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Miscellaneous
expenses
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2,890.00 |
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Total
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$ |
28,000.00 |
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Item
15. Indemnification of Officers and Directors
Section
145 of the Delaware General Corporation Law authorizes a corporation to
indemnify its directors and officers against liabilities arising out of actions,
suits and proceedings to which they are made or threatened to be made a party by
reason of the fact of their prior or current service to the Company as a
director or officer, in accordance with the provisions of Section 145, which are
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
“Securities Act”). The indemnity may cover expenses (including attorneys’ fees)
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the director or officer in connection with any such action, suit or
proceeding. Section 145 permits corporations to pay expenses (including
attorneys’ fees) incurred by directors and officers in advance of the final
disposition of such action, suit or proceeding. In addition, Section 145
provides that a corporation has the power to purchase and maintain insurance on
behalf of its directors and officers against any liability asserted against them
and incurred by them in their capacity as a director or officer, or arising out
of their status as such, whether or not the corporation would have the power to
indemnify the director or officer against such liability under Section
145.
Our
certificate of incorporation provides that, to the fullest extent permitted by
the Delaware General Corporation Law, (1) a director shall not be personally
liable to Houston American Energy Corp. or its stockholders for monetary damages
for breach of fiduciary duty as a director, and (2) we shall indemnify any
director or officer made a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of the fact of such person’s
current or prior service as a director or officer of Houston American Energy
Corp., any predecessor of Houston American Energy or any other enterprise per
Houston American Energy’s or any predecessor to Houston American Energy’s
request.
Our
amended and restated bylaws provide that (a) we shall indemnify our directors
and officers against any judgments, penalties (including excise taxes), fines,
amounts paid in settlement and reasonable expenses (including court costs and
attorneys' fees) actually and reasonably incurred in connection with any
proceeding, whether civil, criminal, administrative or investigative, arising by
reason of the fact that such person is or was an agent of the corporation,
subject to certain limited exceptions, (b) we shall advance expenses incurred by
any director or officer prior to the final disposition of any proceeding to
which the director or officer was or is or is threatened to be made a party
promptly following a request therefore, subject to certain limited exceptions,
and (c) the rights conferred in our bylaws are not exclusive.
We have
also obtained an insurance policy covering our directors and officers with
respect to certain liabilities, including liabilities arising under the
Securities Act.
Item
16. Exhibits
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Exhibit
Number
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Description
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1.1
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Form
of Underwriting Agreement (to be filed by amendment 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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3.1
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Certificate
of Incorporation (filed with our registration statement on Form S-4 on
August 3, 2001 (SEC file number 333-66638) and incorporated by reference
herein)
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3.2
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Certificate
of Amendment to Certificate of Incorporation (filed with our registration
statement on Form S-4 on October 1, 2001 (SEC file number 333-66638) and
incorporated by reference herein)
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3.3
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Amended
and Restated Bylaws (filed with our Current Report on Form 8-K on November
29, 2007 (SEC file number 001-32955) and incorporated by reference
herein)
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4.1
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Form
of Senior Indenture (filed with our registration statement on Form S-3 on
June 25, 2009 (SEC file number 333-160219) and incorporated by reference
herein)
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4.2
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Form
of Subordinated Indenture (filed with our registration statement on Form
S-3 on June 25, 2009 (SEC file number 333-160219) and incorporated by
reference herein)
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4.3
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Form
of Warrant (to be filed by amendment 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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4.4
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Form
of Unit Agreement (to be filed by amendment 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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4.5
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Form
of Common Stock Certificate (to be filed by amendment 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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4.6
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Form
of Preferred Stock Certificate (to be filed by amendment 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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4.7
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Form
of Certificate of Designation with respect to Preferred Stock (to be filed
by amendment 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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5.1
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Opinion
of Michael Sanders, Attorney at Law (previously filed)
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23.1
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Consent
of GBH CPAs, PC, independent registered public accounting firm (previously
filed)
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23.2
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Consent
of Malone & Bailey, PC, independent registered public accounting firm
(previously filed)
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23.3
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Consent
of Ham, Langston & Brezina, L.L.P., independent registered public
accounting firm (previously filed)
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23.4
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Consent
of Michael Sanders, Attorney at Law (included in Exhibit
5.1).
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Consent
of Lonquist & Co. LLC
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24.1
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Power
of attorney (included on the signature page to the original registration
statement).
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25.1
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Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended (to be filed by amendment 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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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 of
1933;
(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 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 the registration statement or any material change to
such information in the registration statement;
Provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
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:
(A) 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
(B) 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 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 the 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;
and
(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 an undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes 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 section 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.
(c) The
undersigned registrant hereby undertakes to supplement the prospectus, after the
expiration of the subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during the subscription
period, the amount of unsubscribed securities to be purchased by the
underwriters, and the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing from those set
forth on the cover page of the prospectus, a post-effective amendment will be
filed to set forth the terms of such offering.
(d)
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 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.
(e) The
undersigned registrant hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a 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 this registration
statement as of the time it was declared effective.
(2) For
the purpose of determining any liability under the Securities Act of 1933, 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.
(f) The
undersigned registrant hereby undertakes 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 Commission under Section 305(b)(2) of the
Act.
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
Houston, State of Texas, on November 25, 2009.
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HOUSTON
AMERICAN ENERGY CORP.
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By:
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/s/ John Terwilliger
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John
Terwilliger
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Chief
Executive Officer and President
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature
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Title
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Date
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/s/ John Terwilliger
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Chairman, Chief Executive Officer and President
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November
25, 2009
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John
Terwilliger
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(Principal
Executive Officer)
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*
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Chief
Financial Officer
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November
25, 2009
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James
Jacobs
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(Principal Financial and Accounting Officer)
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*
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Director
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November
25, 2009
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Orrie
Lee Tawes III
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*
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Director
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November
25, 2009
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Stephen
Hartzell
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*
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Director
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November
25, 2009
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Edwin
Broun III
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*
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Director
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November
25, 2009
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John
Boylan
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*
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By:
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/s/ John F. Terwilliger
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John
F. Terwilliger
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Attorney
in Fact
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II-6