Form S-8 - Securities to be offered to employees in employee benefit plans

As filed with the Securities and Exchange Commission on September 13, 2024.

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

EMPIRE PETROLEUM CORPORATION

(Exact name of registrant as specified in its charter)


Delaware		73-1238709
(State or other jurisdiction of		(I.R.S. Employer
incorporation or organization)		Identification No.)

2200 S. Utica Place, Suite 150

Tulsa, Oklahoma 74114

(Address, including zip code, of registrant’s principal executive offices)

Empire Petroleum Corporation 2024 Stock and Incentive Compensation Plan

(Full title of the plan)

Michael R. Morrisett
President and Chief Executive Officer
Empire Petroleum Corporation

2200 S. Utica Place, Suite 150

Tulsa, Oklahoma 74114

(539) 444-8002

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

Copy to:

J. Ryan Sacra, Esq.
Conner & Winters, LLP
4100 First Place Tower

15 East Fifth Street
Tulsa, Oklahoma 74103
(918) 586-5711

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 o	Accelerated filer o
Non-accelerated filer þ	Smaller reporting company þ
	Emerging growth company o

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. o

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1.   Plan Information.*

Item 2.   Registrant Information and Employee Plan Annual Information.*

*Information required by Part I of Form S-8 constituting the requirements of a Section 10(a) prospectus is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8. Such information is not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act of 1933, as amended (the “Securities Act”). The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the equity incentive plan as specified by Rule 428(b)(1) promulgated by the Commission under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.   Incorporation of Documents by Reference.

The following documents filed by Empire Petroleum Corporation (the “Registrant”) with the Commission (other than any portions of such filings that are furnished rather than filed under applicable Commission rules) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this Registration Statement:

The Registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2023 filed on March 28, 2024;

The Registrant’s quarterly reports on Form 10-Q for the quarters ended March 31, 2024 and June 30, 2024 filed on May 15, 2024 and August 14, 2024, respectively;

The Registrant’s current reports on Form 8-K filed on January 5, 2024, February 21, 2024, March 8, 2024, March 13, 2024, May 13, 2024, May 31, 2024, June 18, 2024, August 6, 2024 and September 6, 2024; and

The description of the Registrant’s Common Stock contained in Exhibit 4.1 to the Registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2021, filed on March 31, 2022, including any subsequent amendment or report filed for the purpose of updating such description.

In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, excluding any information furnished pursuant to any current report on Form 8-K, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from their respective dates of filing. Any statement contained in a document incorporated by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any other subsequently filed incorporated document 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 of the date of this Registration Statement, attorneys at Conner & Winters, LLP owned 78,000 shares of the Registrant’s Common Stock.

Item 6.   Indemnification of Directors and Officers.

Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) grants the Registrant the authority to indemnify each of the Registrant’s directors and officers against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by a director or officer that is made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal or otherwise), by reason of the fact that such director or officer is or was a director, officer, employee or agent of the Registrant or by reason of the fact that such director or officer, at the Registrant’s request, is or was serving at any other corporation or other entity, in any capacity, if such director or officer acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful; provided, that in the case of an action, suit or proceeding against a director or officer that is brought by the Registrant or in the Registrant’s right, the Registrant may indemnify such director or officer only in respect of expenses (including attorneys’ fees) actually and reasonably incurred by such director or officer; provided further, that no such indemnity for expenses may be made with respect to any claim, issue or matter as to which such director or officer shall have been adjudged to be liable to the Registrant unless, and only to the extent that, either the Delaware Court of Chancery or the court in which the action, suit or proceeding against such director or officer was brought shall determine upon application that, despite the adjudication of liability to the Registrant but in view of all the circumstances of the case, such director or officer is nevertheless fairly and reasonably entitled to indemnity from the Registrant for such expenses in an amount deemed proper by such court.

Unless ordered by a court, the determination of whether a then sitting director or officer has met the applicable standard for indemnity, i.e., that the director or officer acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful, shall be made (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iv) by the Registrant’s stockholders.

Section 145 of the DGCL also authorizes the Registrant to advance expenses (including attorneys’ fees) incurred by a director or officer in defending any action, suit or proceeding against the director or officer prior to a determination of whether the director or officer is actually entitled to indemnity and to purchase insurance for the benefit of a director or officer against any liability that may be incurred by reason of the fact that the insured was or is a director or officer, regardless of whether the liability insured could have legally been indemnified by the Registrant.

Pursuant to the authority granted the Registrant by Section 145 of the DGCL, the Registrant has provided in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws for the indemnification of and advancement of expenses to the Registrant’s directors and officers to the fullest extent authorized or permitted by law as from time to time in effect; provided, however, the Registrant is required to indemnify, or advance expenses to, any such director or officer in connection with an action, suit, claim or proceeding initiated by such director or officer only if the initiation of such action, suit, claim or proceeding has been authorized by the Registrant’s Board of Directors.

As permitted by Section 102 of the DGCL, the Registrant’s amended and restated certificate of incorporation provides that each of the Registrant’s directors shall not be personally liable to the Registrant or the Registrant’s stockholders for monetary damages for breach of fiduciary duty as a director; provided, that a director shall be liable for any breach of such director’s duty of loyalty to the Registrant or the Registrant’s stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, for liability under Section 174 of the DGCL (involving certain unlawful dividends or stock repurchases), or for any transaction from which such director derived an improper personal benefit.

The Registrant maintains a general liability insurance policy that covers certain liabilities of the Registrant’s directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.

Item 7.    Exemption from Registration Claimed.

Not applicable.

Item 8.    Exhibits.

Exhibit Number		Description

4.1		Empire Petroleum Corporation 2024 Stock and Incentive Compensation Plan (incorporated herein by reference to Annex A to the Registrant’s Proxy Statement on Schedule 14A filed with the Commission on April 29, 2024).
5*		Opinion of Conner & Winters, LLP.
23.1*		Consent of Grant Thornton LLP.
23.2*		Consent of Cawley, Gillespie & Associates, Inc.
23.3*		Consent of Conner & Winters, LLP (included in Exhibit 5).
24*		Power of Attorney (included on the signature page).
107*		Filing Fee Table.

_______________

* Filed herewith.

Item 9.    Undertakings.

(a) The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made of the securities registered hereby, 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 this 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 this 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 Filing Fee Tables” in the effective Registration Statement;

(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 (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 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 this 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.

(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 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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 Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, 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, in the City of Tulsa, State of Oklahoma on the 13th day of September, 2024.

	EMPIRE PETROLEUM CORPORATION

	By:	/s/ Michael R. Morrisett
		Michael R. Morrisett
		President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Michael R. Morrisett and Matthew E. Watson, and each of them, his or her true and lawful attorneys-in-fact and agents with full power of substitution, 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 post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all 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 or 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 his, her or their substitutes, may lawfully do or cause to be done by virtue hereof.

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	Title	Date

/s/ Michael R. Morrisett	Director, President and Chief Executive Officer	September 13, 2024
Michael R. Morrisett	(Principal Executive Officer and Principal Financial Officer)

/s/ Matthew E. Watson	Chief Accounting Officer	September 13, 2024
Matthew E. Watson	(Principal Accounting Officer)

/s/ Phil E. Mulacek	Director and Chairman of the Board	September 13, 2024
Phil E. Mulacek

/s/ Andrew L. Lewis	Director	September 13, 2024
Andrew L. Lewis

/s/ Ben J. Marchive II	Director	September 13, 2024
Ben J. Marchive II

/s/ Mason H. Matschke	Director	September 13, 2024
Mason H. Matschke

/s/ J. Kevin Vann	Director	September 13, 2024
J. Kevin Vann

Exhibit 5

4100 First Place Tower

15 East 5th Street

Tulsa, OK 74103

cwlaw.com

September 13, 2024

Empire Petroleum Corporation

2200 S. Utica Place, Suite 150

Tulsa, Oklahoma 74114

Re:        Empire Petroleum Corporation – Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel for Empire Petroleum Corporation, a Delaware corporation (the “Company”), in connection with the preparation and filing of the Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register under the Securities Act of 1933, as amended (the “Securities Act”), 700,000 shares of the Company’s Common Stock, par value $0.001 per share (the “Shares”), issuable pursuant to awards to be granted under the Empire Petroleum Corporation 2024 Stock and Incentive Compensation Plan (the “2024 Plan”).

We have examined and are familiar with an original or copy, the authenticity of which has been established to our satisfaction of the 2024 Plan and all such documents, corporate records, and other instruments as we have deemed necessary to express the opinion herein set forth. In rendering the opinion expressed below, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies and the authenticity of the originals from which all such copies were made. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed. We have also assumed that the consideration to be received for each of the Shares will equal or exceed the par value per share of the Common Stock of the Company.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued and acquired or paid for pursuant to and in accordance with the terms of the 2024 Plan and applicable authorized forms of agreement thereunder, will be validly issued, fully paid and non-assessable.

The foregoing opinion is limited to the General Corporation Law of the State of Delaware, including the applicable provisions of the Delaware Constitution and judicial decisions interpreting those laws as of the date of this opinion, and we do not express any opinion herein concerning the laws of any other jurisdictions.

We hereby consent to the Company’s filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are in a category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Conner & Winters, LLP

EXHIBIT 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We have issued our report dated March 28, 2024 with respect to the consolidated financial statements of Empire Petroleum Corporation included in the Annual Report on Form 10-K for the year ended December 31, 2023, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in this Registration Statement.

/s/ GRANT THORNTON LLP

Tulsa, Oklahoma

September 13, 2024

EXHIBIT 23.2

CONSENT OF CAWLEY, GILLESPIE & ASSOCIATES, INC.

We consent to the incorporation by reference into this registration statement on Form S-8 of Empire Petroleum Corporation (the “Company”) of our report for the Company and the references to our firm and said report, in the context in which they appear, in the Annual Report on Form 10-K of the Company for the year ended December 31, 2023.

CAWLEY, GILLESPIE & ASSOCIATES, INC.

Texas Registered Engineering Firm F-693

/s/ J. Zane Meekins

J. Zane Meekins, P.E.

Executive Vice President

Fort Worth, Texas

September 13, 2024

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

EMPIRE PETROLEUM CORPORATION

(Exact Name of Registrant as Specified in its Charter)

Table 1 – Newly Registered Securities

Security

Type

Security

Class Title

Fee

Calculation

Rule

Amount

Registered (1)(2)

Proposed

Maximum

Offering

Price

Per Unit(3)

Maximum

Aggregate

Offering

Price

Fee

Rate

Amount of

Registration

Fee

Equity

Common

Stock,

Par Value

$0.001

Other (3)

700,000

$   4.67

$3,269,000

0.00014760

$483

Total Offering Amounts

$3,269,000

$483

Total Fee Offsets

Net Fee Due

$483

(1)

Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall also cover such indeterminate number of additional shares of Common Stock that may become issuable pursuant to the Empire Petroleum Corporation 2024 Stock and Incentive Compensation Plan (the “2024 Plan”) to prevent dilution resulting from any future stock dividend, stock split, recapitalization or other similar transaction.

(2)

This Registration Statement registers the issuance of 700,000 shares of Common Stock under the 2024 Plan.

(3)

Estimated solely for purposes of calculating the registration fee, pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as amended, on the basis of $4.67 per share, the average of the high and low sales prices for the Common Stock as reported by the NYSE American stock exchange on September 11, 2024 (such date being within five business days prior to the date of filing this Registration Statement).