As filed with the Securities and Exchange Commission on October 10, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROMEDCO MANAGEMENT COMPANY
(Exact name of issuer as specified in its charter)
Delaware 75-2529809
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
801 Cherry Street, Suite 1450
Fort Worth, Texas 76102
(817) 335-1035
(Address of Principal Executive Offices and Zip Code)
Employee Stock Purchase Plan
1996 Stock Option Plan
1994 Stock Option Plan
(Full title of the plans)
H. Wayne Posey
President and Chief Executive Officer
801 Cherry Street, Suite 1450
Fort Worth, Texas 76102
(817) 335-5035
(Telephone number, including area code, of agent for service)
Copy to:
Michael Joseph, Esq.
Dyer Ellis & Joseph
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price aggregate offering registration fee
per share(1) price(1)
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share............................. 3,100,000 $10.8125 $33,518,750 $10,157.20
- ---------------------------------- ------------------ -------------------- --------------------- ---------------------
</TABLE>
(1) Pursuant to Rule 457(c) and (h), the proposed maximum aggregate
offering price per share and the proposed maximum aggregate offering
price are estimated solely for purposes of calculating the registration
fee, and are based upon the average high and low prices of the Common
Stock as reported by the Nasdaq Stock Market on October 3, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference into this registration
statement the following documents filed by the registrant with the Securities
and Exchange Commission:
(a) Quarterly Report on Form 10-Q for the Quarterly ended June 30,
1997;
(b) Amendment to report on Form 8-K filed with the Commission on July
7, 1997;
(c) Report on Form 8-K filed with the Commission on June 19, 1997;
(d) Report on Form 8-K filed with the Commission on May 7, 1997;
(e) Report on Form 8-K filed with the Commission on March 31, 1997;
(f) Quarterly Report on Form 10-Q for the quarter ended March 31, 1997;
(g) The description of the registrant's Common Stock, $.01 par
value, incorporated by reference to the registrant's
Registration Statement on Form S-1, Commission File No.
333-10557; and
(h) The registrant's prospectus pursuant to Rule 424(b) under the
Securities Act of 1933, as amended, filed with the Commission
on March 12, 1997.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment that indicates that all
securities offered have been sold or that 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation and By-laws provide for
indemnification of directors, officers, agents, and employees of the Company to
the fullest extent permitted by law. Under Delaware law, a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to an action (other than an action by or in the right of the corporation) by
reason
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of his service as a director or officer of the corporation, or his service, at
the corporation's request, as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including attorneys' fees)
that are actually and reasonably incurred by him ("Expenses"), and judgments,
fines and amounts paid in settlement that are actually and reasonably incurred
by him, in connection with the defense or settlement of such action, provided
that he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. Although Delaware law permits a corporation to indemnify
any person referred to above against Expenses in connection with the defense or
settlement of an action by or in the right of the corporation, provided that he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests, if such person has been judged
liable to the corporation, indemnification is only permitted to the extent that
the Court of Chancery (or the court in which the action was brought) determines
that, despite the adjudication of liability, such person is entitled to
indemnity for such Expenses as the court deems proper. The determination as to
whether a person seeking indemnification has met the required standard of
conduct is to be made (1) by a majority vote of a quorum of disinterested
members of the board of directors, or (2) by independent legal counsel in a
written opinion, if such a quorum does not exist or if the disinterested
directors so direct, or (3) by the stockholders. The General Corporation Law of
the State of Delaware also provides for mandatory indemnification of any
director, officer, employee or agent against Expenses to the extent such person
has been successful in any proceeding covered by the statute. In addition, the
General Corporation Law of the State of Delaware provides the general
authorization of advancement of a director's or officer's litigation expenses in
lieu of requiring the authorization of such advancement by the board of
directors in specific cases, and that indemnification and advancement of
expenses provided by the statute shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement or otherwise.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Form of Common Stock Certificate (1)
5.1 Opinion of counsel as to the legality of securities being
registered
10.1 Employee Stock Purchase Plan (2)
10.2 1996 Stock Option Plan (3)
10.3 1994 Stock Option Plan (4)
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Dyer Ellis & Joseph (included as part of Exhibit
5.1)
24.1 Power of Attorney
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(1) Filed as exhibit of same number to the Registrant's Registration Statement
on Form 8-A, File No. 0-21373, and incorporated herein by reference.
(2) Filed as exhibit 10.9 to the Registrant's Registration Statement on Form
S-1, File No. 333-10557, and incorporated herein by reference.
(3) Filed as exhibit 10.8 to the Registrant's Registration Statement on Form
S-1, File No. 333-10557, and incorporated herein by reference.
(4) Filed as exhibit 10.21 to the Registrant's Registration Statement on Form
S-1, File No. 333-10557, and incorporated herein by reference.
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 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; and
(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 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.
(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 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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(c) 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 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this amendment to the registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in Fort
Worth, Texas on the 9th day of October, 1997.
PROMEDCO MANAGEMENT COMPANY
By: *
H. Wayne Posey
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following persons
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
*
Richard E. Ragsdale Chairman October 9, 1997
*
Robert D. Smith Vice President-Finance October 9, 1997
*
E. Thomas Chaney Director October 9, 1997
David T. Bailey, M.D. Director October , 1997
Richard R. D'Antoni Director October , 1997
James F. Herd, M.D. Director October , 1997
*
Jack W. McCaslin Director October 9, 1997
*By: /S/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Description of Document Numbered Page
5.1 Opinion of counsel as to the legality of securities being registered
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney
Exhibit 5.1
October 10, 1997
ProMedCo Management Company
801 Cherry Street, Suite 1450
Fort Worth, Texas 76102
Ladies and Gentlemen:
We have acted as counsel for ProMedCo Management Company, a Delaware corporation
(the"Company"), in connection with the issuance and sale pursuant to the
Company's registration statement on Form S-8 (the "Registration Statement") of
up to an aggregate of 3,100,000 shares of its Common Stock, par value $0.01 per
share (the "Shares") that may be issued from time to time pursuant to the
Company's Employee Stock Purchase Plan, 1996 Stock Option Plan, and 1994 Stock
Option Plan (collectively, the "Plans"). Based upon our examination of such
corporate records and other documents and such questions of law as we have
deemed necessary and appropriate, we are of the opinion that the Shares have
been duly authorized and, when sold as provided in the Plans, will be validly
issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
DYER ELLIS & JOSEPH
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporated by
reference in this registration statement of our reports dated February 10, 1997,
included in ProMedCo Management Company's Form S-1 registration statement dated
March 12, 1997, and to all references to our Firm included in this registration
statement.
ARTHUR ANDERSEN LLP
October 9, 1997
Fort Worth, Texas
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that ProMedCo Management Company, a
corporation organized under the laws of the State of Delaware (the
"Corporation"), and the undersigned officers and directors of the Corporation,
individually and in their respective capacities indicated below, hereby make,
constitute, and appoint Michael Joseph and John F. Kearney its and their true
and lawful attorneys, their separate or joint signatures sufficient to bind,
with power of substitution, to execute, deliver, and file in its or their
behalf, and in each person's respective capacity or capacities as shown below, a
registration statement on Form S-8 under the Securities Act of 1933, any and all
amendments to and any and all documents in support of or supplemental to said
registration statement by the Corporation; and the Corporation and each said
person hereby grant to said attorneys full power and authority to do and perform
each and every act and thing whatsoever as any one of said attorneys may deem
necessary or advisable to carry out the full intent of this Power of Attorney to
the same extent and with the same effect as the Corporation or the undersigned
officers and directors of the Corporation might or could do personally in its or
their capacity or capacities as aforesaid; and the Corporation and each of said
persons hereby ratify, confirm, and approve all acts and things that any one of
said attorneys may do or cause to be done by virtue of this Power of Attorney
and its signature or their signatures as the same may be signed by any one of
said attorneys to said registration statement and any and all documents in
support of or supplemental to said registration statement and any and all
amendments thereto.
Dated as of October 9, 1997.
ProMedCo Management Company
Attest: /s/ DEBORAH H. JOHNSON By: /s/ H. WAYNE POSEY
Deborah A. Johnson H. Wayne Posey
Secretary President, Chief Executive Officer
and Director (Principal Executive Officer)
/s/ H. WAYNE POSEY /s/ ROBERT D. SMITH
H. Wayne Posey Robert D. Smith
President, Chief Executive Officer and Director Vice President - Finance
(Principal Executive Officer) (Principal Financial and
Accounting Officer)
/s/ RICHARD E. RAGSDALE /s/ E. THOMAS CHANEY
Richard E. Ragsdale E. Thomas Chaney
Chairman Director
David T. Bailey, M.D. Richard R. D'Antoni
Director Director
/s/ JACK W. MCCASLIN
James F. Herd, M.D. Jack W. McCaslin
Director Director
