As filed with the Securities and Exchange Commission on December 1, 2005.
Registration No. ____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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BAYOU CITY EXPLORATION, INC.
(Exact name of registrant as specified in its charter)
NEVADA 61-1306702
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
10777 WESTHEIMER ROAD
SUITE 170
HOUSTON TX 77042
(Address of Principal Executive Offices) (Zip Code)
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BAYOU CITY EXPLORATION, INC.
(FORMERLY BLUE RIDGE ENERGY, INC.)
2005 STOCK OPTION AND INCENTIVE PLAN
(Full title of the Plan)
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NORMAN G. HAISLER, JR.
SENIOR VICE PRESIDENT-FINANCE AND CHIEF FINANCIAL OFFICER
BAYOU CITY EXPLORATION, INC.
10777 WESTHEIMER ROAD
SUITE 170
HOUSTON, TX 77042
(832) 358-3900
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT PROPOSED PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE MAXIMUM OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) FEE (2)
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Common Stock, par value,
$0.005 per share 7,000,000 shares $2.07 $14,490,000 $1,550.43
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) Calculated pursuant to Rules 457(h) and 457(c) under the Securities Act of
1933 and based upon the average of the bid and asked price per share of our
Common Stock on November 29, 2005 a date within five (5) days prior to the
date of filing of this registration statement, as reported by the OTCBB
under the symbol BYCX.
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PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information required by Part I of Form S-8 is included in documents to
be given to the recipient of the securities registered hereby in accordance with
Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities
Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Bayou City Exploration, Inc. ("Registrant" or the "Company") hereby
incorporates by reference the following documents:
(a) The Company's Annual Report on Form 10-KSB/A for the fiscal year ended
December 31, 2004;
(b) The Company's Form 10-QSB/A for the quarter ended March 31, 2005;
(c) The Company's Form 10-QSB for the quarter ended June 30, 2005;
(d) The Company's Form 10-QSB for the quarter ended September 30, 2005;
(e) The Company's Current Report on Form 8-K filed on January 6, 2005, as
amended by the Company's Current Report on Form 8-K/A filed on May 12, 2005,
reporting the completion of a Regulation S offering of common stock and
warrants;
(f) The Company's Current Report on Form 8-K filed on May 5, 2005
announcing the departure of Patrick A. Kelleher as President, CEO and a Director
of the Company and appointment of Morris T. Hewitt as the new President and
Chief Executive Officer of the Company;
(g) The Company's Current Report on Form 8-K filed on September 15, 2005
announcing the resignation of Forrest Ebbs as a Director of the Company; and
(h) The description of the Company's Common Stock as contained in the
Registration Statement on Form 10-SB, filed by the Company on September 9, 1999
to register its common stock, $.005 par value per share (the "Common Stock")
under the Securities Exchange Act of 1934, as amended ("Exchange Act"), and all
amendments or reports filed for the purpose of updating such description prior
to the termination of the offering of Common Stock hereby.
All documents subsequently filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, 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 the date of filing of such documents. Statements contained in this
Registration Statement or in a document incorporated by reference may be
modified or superseded by later statements in this Registration Statement or by
statements in subsequent documents incorporated by reference, in which case you
should refer to the later statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 78.138 of the Nevada Revised Statutes ("NRS") provides that,
with certain exceptions, a director or officer is not individually liable to the
corporation or its stockholders for any damages as a result of any act or
failure to act in his capacity as a director or officer unless it is proven that
(i) his act or failure to act constituted a breach of his fiduciary duties as a
director or officer, and (ii) his breach of those duties involved intentional
misconduct, fraud or a knowing violation of law.
Subsection 1 of Section 78.7502 of the NRS empowers a corporation to
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 (except an action by or in the
right of the corporation), by reason of the fact that he 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, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with the
action, suit or proceeding if he is not liable pursuant to NRS 78.138 or acted
in good faith and in a manner which he 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 conduct
was unlawful. Subsection 1 of Section 78.7502 also makes it clear that the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person is liable pursuant to NRS 78.138 or
did not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, or that, with respect
to any criminal action or proceeding, he had reasonable cause to believe that
his conduct was unlawful.
Subsection 2 of Section 78.7502 of the NRS empowers a corporation to
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 he 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, partnership, joint venture, trust or other
enterprise against expenses, including amounts paid in settlement and attorneys'
fees actually and reasonably incurred by him in connection with the defense or
settlement of the action or suit if he not liable pursuant to NRS 78.138 or
acted in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, except no indemnification may
not be made for any claim, issue or matter as to which such a person has been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the corporation or for amounts paid in settlement to
the corporation, unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction determines
upon application that in view of all the circumstances of the case, the person
is fairly and reasonably entitled to indemnity for such expenses as the court
deems proper.
Subsection 3 of Section 78.7502 further provides that to the extent
that a director, officer, employee or agent of a corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred
to in subsections 1 and 2 of such section, or in defense of any claim, issue or
matter therein, the corporation shall indemnify him against expenses, including
attorneys' fees, actually and reasonably incurred by him in connection with the
defense.
Subsection 1 of Section 78.751 of the NRS provides that any
discretionary indemnification pursuant to Section 78.7502 of the NRS, unless
ordered by a court or advanced pursuant to subsection 2 of such section, may be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances and such determination must be made (a) By the
stockholders; (b) By the board of directors by majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not parties
to the action, suit or proceeding so orders, by independent legal counsel in a
written opinion; or (d) If a quorum consisting of directors who were not parties
to the action, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
Subsection 2 of Section 78.751 of the NRS provides that the articles
of incorporation, the bylaws or an agreement made by the corporation may provide
that the expenses of officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the corporation as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
Subsection 3 of Section 78.751 provides that the indemnification
pursuant to Section 78.7502 of the NRS and advancement of expenses authorized in
or ordered by a court pursuant to such section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the
advancement of expenses made pursuant to subsection 2, may not be made to or on
behalf of any director or officer if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
Section 78.752 of the NRS empowers a corporation to purchase and
maintain insurance or make other financial arrangements on behalf of any person
who 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, partnership, joint venture, trust or
other enterprise for any liability asserted against him and liability and
expenses incurred by him in his capacity as a director, officer, employee or
agent, or arising out of his status as such, whether or not the corporation has
the authority to indemnify him against such liability and expenses.
Article X of the Articles of Incorporation of the Company (a copy of
which is attached hereto as Exhibit 4.1) essentially mirrors Sections 78.7502
and 78.751 of the NRS as reproduced above, absent references to Section 78.138
of the NRS. In addition, pursuant to its By-Law, each Director and each Officer
of the Company has been indemnified, against certain liabilities which they may
incur in their capacities, as follows:
The Corporation shall, unless prohibited by Nevada Law, indemnify any
person who is or was involved in any manner or is threatened to be so
involved in a threatened, pending or completed action suit or
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, including without limitation, any action, suit or
proceeding brought by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he 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, partnership, joint venture,
trust, employee benefit plan or other entity or enterprise, again all
Expense and Liabilities actually and reasonably incurred by him in
connection with such Proceeding. The right
to indemnification conferred in this Article shall be presumed to have
been relied upon by the directors, officers, employees and agents of
the corporation and shall be enforceable as a contract right and inure
to the benefit of heirs, executors and administrators of such
individuals.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
4.1 Articles of Incorporation incorporated by reference to EX-3.I to Form
10-12G/A filed October 5, 1999.
4.2 By-Laws incorporated by reference to EX-3.II to Form 10-12G/A filed
October 5, 1999.
4.3 Amendment 1 to Articles of Incorporation.*
4.4 Amendment 2 to Articles of Incorporation.*
5. Opinion of Greenebaum Doll & McDonald PLLC as to the legality of the
securities being registered.*
23.1 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5).*
23.2 Consent of Carpenter, Mountjoy & Bressler, PSC *
24 Powers of Attorney (included on signature page of the Registration
Statement).
99 2005 Stock Option and Incentive Plan (incorporated by reference to the
Company's Definitive Proxy Statement filed on Form DEF-14A on May 2,
2005).
* 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, 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 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement.
(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) do not apply if
information required to be included in the post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of Registrant's
annual report pursuant to Section 13(a) or 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 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.
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, 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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, in the City of Houston, State of Texas, on November 30, 2005.
BAYOU CITY EXPLORATION, INC.
By: /s/ Norman G. Haisler, Jr.
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Norman G. Haisler, Jr., Senior Vice
President-Finance and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Norman G. Haisler such individual's true and
lawful attorney-in-fact and agents, with full power of substitution and
resubstitution, for such individual and in his or her name, place and stead, in
any and all capacities, to sign all amendments (including post-effective
amendments) to this Registration Statement and any registration statement
related to the offering contemplated by this Registration Statement that is to
be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission and any State
or other regulatory authority, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and thing
requisite or 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 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 by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Robert D. Burr Chairman of the Board of Directors November 30, 2005
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Robert D. Burr
/s/ Morris T. Hewitt President, Chief Executive Officer November 30, 2005
- ----------------------------- and Secretary
Morris T. Hewitt
/s/ Norman G. Haisler, Jr. Senior Vice President-Finance and November 30, 2005
- ----------------------------- Chief Financial Officer
Norman G. Haisler, Jr.
/s/ Harry J. Peters Director November 30, 2005
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Harry J. Peters
/s/ Gregory B. Shea Director November 30, 2005
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Gregory B. Shea
/s/ Richard M. Hewitt Director November 30, 2005
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Richard M. Hewitt
/s/ Ronald E. Mitchell Director November 30, 2005
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Ronald E. Mitchell
EXHIBIT INDEX
4.1 Articles of Incorporation incorporated by reference to EX-3.I to Form
10-12G/A filed October 5, 1999.
4.2 By-Laws incorporated by reference to EX-3.II to Form 10-12G/A filed
October 5, 1999.
4.3 Amendment 1 to Articles of Incorporation.*
4.4 Amendment 2 to Articles of Incorporation.*
5. Opinion of Greenebaum Doll & McDonald PLLC as to the legality of the
securities being registered.*
23.1 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5).*
23.2 Consent of Carpenter, Mountjoy & Bressler, PSC *
24 Powers of Attorney (included on signature page of the Registration
Statement).
99 2005 Stock Option and Incentive Plan (incorporated by reference to the
Company's Definitive Proxy Statement filed on Form DEF-14A on May 2,
2005).
* Filed herewith.