As filed with the Securities and Exchange
Commission on October 24, 2003 Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
Registration Statement
Under the Securities Act of 1933
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SURGICARE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 58-1597246
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
12727 Kimberly Lane, Suite 200 Keith LeBlanc
Houston, Texas 77024 12727 Kimberly Lane, Suite 200
(713) 973-6675 Houston, Texas 77024
(Address, including zip code, and (713) 973-6675
telephone number, including (Name, address, including zip code,
area code, of registrant's and telephone number, including
principal executive offices) area code, of agent for service)
Individual Compensation Agreement
(Full Title of the Plans)
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copy to:
Lee Polson
Strasburger & Price, LLP
600 Congress Avenue, Suite 2600
Austin, Texas 78701
512-499-3600
512-536-5719 (fax)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities To Be Amount Being Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
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---------------------------- --------------------- ----------------------- ------------------------ ----------------
Common Stock, par value 228,310 $0.44 $100,456 $12.73
$0.005 per share
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the registrant's common stock registered hereunder
will be adjusted in the event of stock splits, stock dividends or
similar transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h), based on the average of the
high and low prices of the common stock as reported by the American
Stock Exchange on October 15, 2003.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed by the registrant (SEC file number 001-16587) with
the Commission are hereby incorporated by reference:
Form 10-KSB for fiscal year ended December 31, 2002, filed with the Commission
on April 15, 2003;
Form 10-QSB for the fiscal quarter ended March 31, 2003, filed with the
Commission on May 15, 2003.
Form 10-QSB for the fiscal quarter ended June 30, 2003; filed with the
Commission on August 19, 2003.
Form 8-K filed with the Commission on August 22, 2003.
Form 8-K filed with the Commission on August 20, 2003.
Form 8-K filed with the Commission on August 4, 2003.
Form 8-K filed with the Commission on May 15, 2003.
Form 8-K filed with the Commission on April 1, 2003.
Form 8-K filed with the Commission on January 29, 2003.
The description of registrant's common stock contained in its Registration
Statement on Form 10-SB/A filed with the Commission on January 28, 2000.
All documents subsequently filed by the Company 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 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. The statements in this document will
modify and supercede any inconsistent statements contained in a document
incorporated or deemed incorporated in this prospectus. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
Item 4. Description of Securities
Not Applicable.
Item 5. Interest of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that a corporation
may indemnify directors and officers as well as other employees and individuals
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement in connection with various actions, suits or proceedings, whether
civil, criminal, administrative or investigative other than an action by or in
the right of the corporation, a derivative action, if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses including attorneys' fees
incurred in connection with the defense or settlement of such actions, and the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation's by-laws, disinterested director vote, stockholder
vote, agreement or otherwise.
Registrant's bylaws provide that registrant shall indemnify its directors,
officers, employees and agents to the fullest extent permitted by the general
corporation law of Delaware and the Certificate of Incorporation.
Neither the amendment nor repeal of such provision will eliminate or reduce the
effect of such provision in respect of any matter occurring, or any cause of
action, suit or claim that, but for such provision, would accrue or arise before
such amendment or repeal.
The Securities and Exchange Commission has stated that, in its opinion,
indemnification of officers and directors for violations of federal securities
laws is unenforceable and void as a matter of public policy.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Identification of Exhibit
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5.1 Opinion of Strasburger & Price, LLP, regarding legality
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Weinstein Spira & Company, P.C., independent public accountants
99.1 Charles Cohen Compensation Agreement
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Item 9. Undertakings
The undersigned registrant undertakes:
(a) To file, during any period in which it offers or sells securities,
a post-effective amendment to this registration statement to:
(1) include any prospectus required by section 10(a)(3)
of the Securities Act.
(2) reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the registration statement; and notwithstanding the forgoing, 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 prospects filed with the Commission as required by to
Rule 424(b) if, in the aggregate, the changes in the volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement.
(3) To include any additional or changed material information
on the plan of distribution.
(b) That, for determining liability under the Securities Act of 1933,
the Registrant will treat each post-effective amendment as a new registration
statement of the securities offered, and the offering of the securities at that
time to be the initial bona fide offering.
(c) To remove from registration by means of a post-effective amendment
any of the securities that remain unsold at the end of the offering.
The undersigned Registrant undertakes that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report as required by Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 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.
Because indemnification for liabilities arising under the Securities Act of 1933
may be permitted for directors, officers, and controlling persons of the
Registrant according to the provisions set forth or described in Item 6 of this
Registration Statement, 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 of 1933 and is,
therefore, unenforceable. If 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 of 1933 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 October 24, 2003.
SURGICARE, INC.
By: /s/ Keith LeBlanc
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Keith LeBlanc, Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ Keith LeBlanc President and Chief October 24, 2003
------------------------ Executive Officer
Keith LeBlanc
/s/ Phillip C. Scott Chief Financial Officer October 24, 2003
------------------------ and Secretary
Phillip C. Scott
Director October 24, 2003
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Charles Cohen
/s/ Michael Mineo Director October 24, 2003
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Michael Mineo, M.D.
/s/ Bruce Miller Director October 24, 2003
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Bruce Miller, M.D.
/s/ Sherman Nagler Director October 24, 2003
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Sherman Nagler, M.D.
/s/ Jeffrey Penso Director October 24, 2003
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Jeffrey Penso, M.D.