Registration No. 333-_______________
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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PHOENIX HEALTHCARE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 23-2596710
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4514 TRAVIS STREET, SUITE 330
DALLAS, TEXAS 75205
(Address of Principal Executive Offices) (Zip Code)
PHOENIX HEALTHCARE CORPORATION 1999 STOCK OPTION PLAN
PHOENIX HEALTHCARE CORPORATION EMPLOYEE STOCK PURCHASE PLAN
PHOENIX HEALTHCARE CORPORATION 1999 SHARE AWARD PLAN
CERTAIN EMPLOYMENT AGREEMENTS WITH EXECUTIVE OFFICERS
(Full title of the plans)
RONALD E. LUSK
(Name and address of agent for service)
(888) 900-1133
(Telephone number, including area code, of agent for service)
WITH A COPY TO:
DAVID MUSTONE, ESQUIRE
REED SMITH SHAW & MCCLAY LLP
1301 K STREET, N.W.
SUITE 1100-EAST TOWER
WASHINGTON, DC 20005-3317
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered(1) per share(2) offering price(2) fee
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Common Stock,
par value
$.001 per
share.................. 14,400,000 shs. $.23 $3,312,000.00 $920.74
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(1) Plus such additional number of shares as may be required pursuant to the
Phoenix Healthcare Corporation 1999 Stock Option Plan (the "Stock Option Plan"),
the Phoenix Healthcare Corporation Employee Stock Purchase Plan (the "Stock
Purchase Plan"), the Phoenix Healthcare Corporation 1999 Share Award Plan (the
"Share Award Plan"), and the employment agreements (together, the "Plans") in
the event of a stock dividend, split-up of shares, recapitalization or other
similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(h) and (c), the proposed maximum aggregate offering price
for shares which may be issued under the Plan is based on the average of the
high and low sales prices of the Common Stock as reported on the OTC Bulletin
Board for April 27, 1999.
EXPLANATORY NOTE
This registration statement on Form S-8 covers 3,000,000 shares of Common Stock,
$.001 par value, to be issued upon exercise of options granted under the
registrant's 1999 Stock Option Plan; 1,000,000 shares of Common Stock, $.001 par
value, to be issued under the registrant's Stock Purchase Plan; 400,000 shares
of Common Stock, $.001 par value, to be issued under the registrant's Share
Award Plan; and 10,000,000 shares of Common Stock, $.001 par value, to be issued
pursuant to certain employment agreements with executive officers of the
registrant.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated in this Registration Statement by reference
and made a part of this Registration Statement:
(a) The registrant's latest annual report on Form 10-K filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) All other reports filed by the registrant pursuant to
Section 13(a) of the 1934 Act since the end of the fiscal year covered
by the annual report on Form 10-K referred to above; and
(c) Any description of the Common Stock which is contained in
a registration statement filed by the registrant pursuant to the 1934
Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act on or subsequent to the date of this
Registration Statement, and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities 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.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
contemporaneously or subsequently filed document which also is or is deemed to
be incorporated by reference in this Registration Statement 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law gives a corporation
the power 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
by reason that the person is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including an employee benefit plan). This
indemnification
may cover expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person in connection
with the action, suit or proceeding, if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation (and, in the event of a criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful). If the action or
suit is brought by or in the right of the corporation, however, no
indemnification can be made where the person is adjudged to be liable to the
corporation, unless and to the extent that the Court of Chancery, or other court
in which the action or suit was brought, determines that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the court deems proper. Any indemnification would be contingent upon a
determination that indemnification is proper in the circumstances because the
applicable standard of conduct has been met, which determination must be made by
either (1) a majority vote of the directors who are not parties to the action,
suit or proceeding; (2) if there are no such directors or the directors so
direct, independent legal counsel in a written opinion; or (3) the stockholders.
Expenses may be paid in advance of final disposition of an action if the
indemnified person undertakes to repay the amount if ultimately determined not
to be entitled to indemnification. A corporation also has the power to purchase
and maintain insurance on behalf of the persons it may indemnify against any
liability asserted against them in their respective capacities or arising out of
their status as serving in such capacities, regardless of whether the
corporation would have the power to indemnify them against such liability under
Section 145.
Article Tenth of the registrant's Certificate of Incorporation provides
that the corporation shall, to the fullest extent permitted by Section 145 of
the Delaware General Corporation Law, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all of
the expenses, liabilities or other matters referred to in or covered by said
section, and that such indemnification shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise. Article
VII of the By-Laws of the registrant requires the registrant to indemnify a
director, officer, employee or agent, or any person serving at the request of
the registrant as a director, officer, employee, agent, fiduciary or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan or
other entity or enterprise, who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed action, suit, appeal or other
proceeding of any nature by reason of the fact that the person is or was a
serving in such capacity. Such indemnity is against any damage, judgment, amount
paid in settlement, fine, penalty, punitive damages, excise tax assessed with
respect to an employee benefit plan, or cost or expense, of any nature
(including, without limitation, attorneys' fees and disbursements), actually and
reasonably incurred in connection with such a proceeding. Indemnification
authorizations are to be made by a majority vote of the Board of Directors then
in office, except that the reimbursement of expenses incurred in successfully
prosecuting or defending the rights of an indemnified person under Article VII
is mandatory. Indemnification may not be provided if:
(i) the person to be indemnified did not act in good faith and
in a manner the person reasonably believed to be in, or not opposed to,
the best interests of the registrant (or, as to action with respect to
an employee benefit plan, the interests of participants in and
beneficiaries of the plan);
(ii) with respect to any criminal proceeding, the person had
reasonable cause to believe that his or her conduct was unlawful;
(iii) with respect to any proceeding by or in the right of the
registrant to procure a judgment in its favor, the person is adjudged
to be liable to the registrant, except as may be otherwise ordered by
the Delaware Court of Chancery or the court in which such proceeding
was brought;
(iv) a determination is not made that such indemnification is
authorized by the By-Laws by either (i) the Board of Directors by a
majority vote of the directors who were not parties to the proceeding,
even though less than a quorum, (ii) if there are no such directors, or
if such directors so direct, independent legal counsel in a written
opinion, or (iii) the stockholders; or
(v) to the extent that indemnification has been determined by
a court to be unlawful.
Expenses may be paid in advance of the final disposition of a
proceeding upon receipt of an undertaking by or on behalf of the indemnified
person to repay the amount if ultimately determined not entitled to be
indemnified. The registrant may, on behalf of itself or any indemnified person,
purchase and maintain insurance or a similar arrangement against any liability
which might be asserted against or incurred by the registrant or any indemnified
person, whether or not the registrant would have the power to indemnify the
person against such liability under its By-Laws.
The indemnification rights granted by the By-Laws are not to be deemed
exclusive of any other right as to which a person seeking indemnification,
contribution or advancement of expenses may be entitled under any statute,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in an indemnified capacity and as to action in any other capacity. In
addition, if the indemnification provided for in the By-Laws or otherwise is
unavailable for any reason, the registrant is required to contribute to the
liabilities to which the indemnified person may be subject in such proportion as
is appropriate to reflect the intent of the By-Laws or otherwise.
In addition, Article Ninth of the registrant's Certificate of
Incorporation provides that the personal liability of the directors of the
corporation is eliminated to the fullest extent permitted by Section 102(b)(7)
of the Delaware General Corporation Law. This section eliminates a director's
liability to a corporation or its stockholders for monetary damages except: (i)
for breach of the director's duty of loyalty to the corporation and its
stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under the section of
Delaware law providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions; or (iv) for any
transaction from which a director derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as part of this Registration
Statement or incorporated by reference herein.
Exhibit
No.
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4.1 Phoenix Healthcare Corporation 1999 Stock Option Plan, filed
herewith.
4.2 Phoenix Healthcare Corporation Employee Stock Purchase Plan,
filed herewith.
4.3 Phoenix Healthcare Corporation 1999 Share Award Plan, filed
herewith.
4.4 Employment Agreement and Change of Control Agreement between
registrant and Ronald E. Lusk, filed herewith.
4.5 Employment Agreement and Change of Control Agreement between
registrant and Robert L. Woodson, III, filed herewith.
4.6 Employment Agreement and Change of Control Agreement between
registrant and Albert Sousa, filed herewith.
4.7 Employment Agreement and Change of Control Agreement between
registrant and Michael H. Seeliger, filed herewith.
5.1 Opinion of Reed Smith Shaw & McClay LLP as to the legality of
the Common Stock, filed herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (included in Exhibit
5.1 filed herewith).
23.2 Consent of Weaver and Tidwell L.L.P., independent auditors,
filed herewith.
23.3 Consent of Asher & Company, Ltd., independent auditors,
filed herewith.
24.1 Power of Attorney, contained on the signature page to this
Registration Statement.
ITEM 9. UNDERTAKINGS.
(a) RULE 415 OFFERING.
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;
(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 (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
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 Securities Exchange Act of 1934
that are incorporated by reference in 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; and
(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) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE.
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 that is incorporated by reference in the
registration statement shall be deemed
to be a new registration statement relating to the securities offered herein,
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 of 1933, as amended (the "1933 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 1933 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 1933 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 Dallas, State of Texas, on the 29th day of April,
1999.
PHOENIX HEALTHCARE CORPORATION
By: /s/ Ronald E. Lusk
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Ronald E. Lusk
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald E. Lusk 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) to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said 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, 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 substitutes, may
lawfully do or cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE 29TH DAY OF APRIL, 1999.
NAME TITLE
/s/ Ronald E. Lusk Chairman and Chief Executive Officer
-------------------------- (Principal Executive Officer)
Ronald E. Lusk
/s/ Robert L. Woodson, III President, Chief Operating
-------------------------- Officer and Director
Robert L. Woodson, III
/s/ Albert Sousa Executive Vice President,
-------------------------- Secretary and Director
Albert Sousa
/s/ Bart A. Houston Director
--------------------------
Bart A. Houston
PHOENIX HEALTHCARE CORPORATION
PHOENIX HEALTHCARE CORPORATION 1999 STOCK OPTION PLAN
PHOENIX HEALTHCARE CORPORATION EMPLOYEE STOCK PURCHASE PLAN
PHOENIX HEALTHCARE CORPORATION 1999 SHARE AWARD PLAN
CERTAIN EMPLOYMENT AGREEMENTS WITH EXECUTIVE OFFICERS
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REGISTRATION STATEMENT
ON FORM S-8
EXHIBIT INDEX
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Exhibit
No. Document
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4.1 Phoenix Healthcare Corporation 1999 Stock Option
Plan, filed herewith.
4.2 Phoenix Healthcare Corporation Employee Stock
Purchase Plan, filed herewith.
4.3 Phoenix Healthcare Corporation 1999 Share Award Plan,
filed herewith.
4.4 Employment Agreement and Change of Control Agreement
between registrant and Ronald E. Lusk, filed
herewith.
4.5 Employment Agreement and Change of Control Agreement
between registrant and Robert L. Woodson, III, filed
herewith.
4.6 Employment Agreement and Change of Control Agreement
between registrant and Albert Sousa, filed herewith.
4.7 Employment Agreement and Change of Control Agreement
between registrant and Michael H. Seeliger, filed
herewith.
5.1 Opinion of Reed Smith Shaw & McClay LLP, as to the
legality of the Common Stock, filed herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (included in
Exhibit 5.1 filed herewith).
23.2 Consent of Weaver and Tidwell L.L.P., independent
auditors, filed herewith.
23.3 Consent of Asher & Company, Ltd., independent
auditors, filed herewith.
24.1 Power of Attorney, contained on the signature page to
this Registration Statement.