S-8 1 cps8804.txt REGISTRATION STATEMENT ON FORM S-8 As filed with the Securities and Exchange Commission on August 12, 2004 File Number 333- ============================================================================= SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CAPCO ENERGY, INC. (Exact Name of Registrant as Specified in its Charter) Colorado 84-0846529 (State or Other Jurisdiction of (IRS Employer ID No.) Incorporation or Organization) 4800 Sugar Grove Blvd., Suite 601 Stafford, Texas 77477 (Address of Principal Executive Offices) 1999 Incentive Equity Plan (Full Title of the Plans) Ilyas Chaudhary Chief Financial Officer 12241 Newport Avenue, Suite 221 Santa Ana, California 92705 (Name and Address of Agent for Service) (714) 734-6876 (Telephone Number, Including Area Code, of Agent for Service) CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Maximum Maximum Amount of Securities to Amount to be Offering Price Aggregate Registration be Registered Registered Per Share Offering Price Fee(1) Options/Common 4,000,000 $0.250 $1,000,000.00 $126.70 Stock Options/Common 4,400,000 $0.125 $ 550,000.00 $ 69.69 Stock Options/Common 7,480,000 $0.063 $ 471,240.00 $ 59.71 Stock ------------------------------------------------------------------------ Total 15,880,000 N/A $2,021,240.00 $256.10 ------------------------------------------------------------------------ (1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as amended. 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 to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended, and the Note to Part I of Form S-8. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. Incorporation of Documents by Reference. The following documents previously filed by Capco Energy, Inc. (the "Company") with the Securities and Exchange Commission are incorporated herein by reference: (a) The Company's annual report on Form 10-KSB for the fiscal year ended December 31, 2003; (b) All other reports of the Company filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, since the end of the fiscal year covered by the report described in (a) above; (c) The Company's Registration Statement number 2-73529 in which there is described the terms, rights and provisions applicable to the Company's outstanding Common Stock, and all amendments and reports filed for the purpose of updating that description; and (d) All documents subsequently filed by the Company pursuant to Sections 13 (a), 13 (c), 14 and 15 (d) of the Securities and Exchange Act of 1934, as amended, 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 herein by reference and to be part hereof from the date of filing of such documents. 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 7-109-101, et seq., of the Colorado Business Corporation Act generally provides that a corporation may indemnify its directors, officers, employees, fiduciaries and agents against liabilities and reasonable expenses incurred in connection with any threatened, pending, or completed action, suit or proceeding, whether formal or informal (a "Proceeding"), by reason of being or having been a director, officer, employee, fiduciary or agent of the corporation, if such person acted in good faith and reasonably believed that his conduct, in his official capacity, was in the best interests of the corporation, and in all other cases his conduct was at least not opposed to the corporation's best interests. In the case of a criminal proceeding, the director, officer, employee, fiduciary or agent must have no reasonable cause to believe his conduct was unlawful. 3 Under Colorado Law, the corporation may not indemnify a director, officer, employee, fiduciary or agent in connection with a Proceeding by or in the right of the corporation if the director is adjudged liable to the corporation, or in a Proceeding in which the director, officer, employee or agent is adjudged liable for an improper personal benefit. The Company's Article of Incorporation and By-Laws provide that the Company shall indemnify its officers and directors to the full extent permitted by the law. The indemnification provisions in the Company's By-Laws are substantially similar to the provisions of Section 7-109-101, et seq. The Company has entered into agreements to provide indemnification for the Company's directors and certain officers consistent with the Company's Articles of Incorporation and By-Laws. ITEM 7. Exemption from Registration Claimed. Not applicable. ITEM 8. Exhibits. Exhibit Number Title ------- ----- 4.1 Articles of Incorporation of the Company (filed as Exhibit 4 to the Company's Registration Statement number 2-73529, and all amendments and reports filed for the purpose of updating the description of the Articles of Incorporation). 4.2 By-Laws of the Company (filed as Exhibit 5 to the Company's Registration Statement number 2-73529, and all amendments and reports filed for the purpose of updating the description of the By-Laws). 5 Opinion of William J. Hickey, Esq., as to the validity of the Securities registered hereunder. 10.1 1999 Incentive Equity Plan (incorporated by reference to the Company's definitive proxy statement filed December 2, 1999) 23.1 Consent of William J. Hickey, Esq.(set forth in the opinion filed as Exhibit 5 to this Registration Statement). 23.2 Consent of Stonefield Josephson, Inc., Certified Public Accountants. Item 9. Undertakings. The undersigned Registrant hereby undertakes: (A) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: 4 (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 which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) to include any additional or changed material information on the plan of distribution; provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if 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 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. (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 of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement related 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 that, 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 provisions 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 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. 5 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 of filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, in the city of Santa Ana, State of California on August 12, 2004. CAPCO ENERGY INC. /s/ Ilyas Chaudhary By:------------------------- Ilyas Chaudhary Chief Executive Officer and Chairman Pursuant to the requirements of the Securities Act of 1933, this Registration Statement was signed by the following persons in the capacities and on the dates indicated. Signatures Title Date ---------- ----- ---- /s/ Ilyas Chaudhary Chairman of the Board, August 12, 2004 --------------------- and Chief Executive Officer Ilyas Chaudhary (Principal Executive Officer) /s/ J. Michael Myers President and Director August 12, 2004 ---------------------- J. Michael Myers /s/ Ilyas Chaudhary Chief Financial Officer August 12, 2004 ---------------------- (Principal Financial and Ilyas Chaudhary Accounting Officer) /s/ William J. Hickey Secretary and Director August 12, 2004 ---------------------- William J. Hickey /s/ Paul Hayes Director August 12, 2004 ---------------------- Paul Hayes /s/ Irwin M. Kaufman Director August 12, 2004, ---------------------- Irwin M. Kaufman /s/ Dennis Staal Director August 12, 2004 ---------------------- Dennis Staal 6 EXHIBIT INDEX The following Exhibits are filed as part of this Registration Statement pursuant to Item 601 of Regulation S-B and are specifically incorporated herein by this reference: Exhibit Number In Registration Statement Description ---------------- ------------------------------- 4.1 Articles of Incorporation of the Company (filed as Exhibit 4 to the Company's Registration Statement number 2-73529, and all amendments and reports filed for the purpose of updating the description of the Articles of Incorporation). 4.2 By-Laws of the Company (filed as Exhibit 5 to the Company's Registration Statement number 2-73529, and all amendments and reports filed for the purpose of updating the description of the By-Laws). 5 Opinion of William J. Hickey, Esq., as to the validity of the Securities registered hereunder. 10.1 1999 Incentive Equity Plan (incorporated by reference to the Company's definitive proxy statement filed December 2, 1999) 23.1 Consent of William J. Hickey, Esq.(set forth in the opinion filed as Exhibit 5 to this Registration Statement). 23.2 Consent of Stonefield Josephson, Inc., Certified Public Accountants. 7