Registration No. 333-_______
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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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BALANCED CARE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 25-1761898
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5021 LOUISE DRIVE, SUITE 200 17055
MECHANICSBURG, PENNSYLVANIA (Zip Code)
(Address of principal
executive offices)
BALANCED CARE CORPORATION 1996 STOCK INCENTIVE PLAN
(Full title of the plan)
BRAD E. HOLLINGER
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
BALANCED CARE CORPORATION
5021 LOUISE DRIVE, SUITE 200
MECHANICSBURG, PENNSYLVANIA 17055
(Name and address of agent for service)
(717) 796-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
SECURITIES REGISTERED MAXIMUM MAXIMUM REGISTRATION
TO BE OFFERING AGGREGATE FEE
REGISTERED PRICE OFFERING
PER SHARE PRICE
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COMMON STOCK,
PAR VALUE $3,549
$0.001
456,750 $2.00(1) $913,500
45,000 $3.33(1) $149,850
150,250 $5.33(1) $800,833
150,000 $5.50(1) $825,000
185,550 $6.50(1) $1,206,075
331,991 $6.67(1) $2,214,380
28,500 $6.94(1) $197,790
28,875 $7.33(1) $211,654
648,084 $8.50(2) $5,508,714
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(1) Based upon the exercise price of the options in respect of which the
shares may be issued.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The fee is calculated on the basis of the average of
the high and low prices for the Registrant's Common Stock reported on the
American Stock Exchange on May 4, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated by reference into
this Registration Statement: (i) the Registrant's prospectus filed pursuant
to Rule 424(b)(4) of the Securities Act forming part of the Registrant's
Registration Statement on Form S-1 (No. 333-37833) filed on October 14,
1997, as amended on December 9, 1997, January 7, 1998, January 14, 1998,
February 9, 1998 and February 11, 1998; (ii) the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended December 31, 1997; (iii)
the Registrant's Current Reports on Form 8-K dated February 18, 1998 and
February 25, 1998; and (iv) the description of the Registrant's Common Stock
contained in the Registrant's Registration Statement on Form 8-A, as the
same may be amended.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this Registration Statement, but prior to the filing of a
post-effective amendment to this Registration Statement which indicates that
all securities offered by this Registration Statement have been sold or
which deregisters all such securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement. Each
document incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement from the date of filing
of such document with the Commission until the information contained therein
is superseded or updated by any subsequently filed document which is
incorporated by reference into this Registration Statement or by any
document which constitutes part of the prospectus relating to the Balanced
Care Corporation 1996 Stock Incentive Plan meeting the requirements of
Section 10(a) of the Securities Act.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this Registration Statement is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation, in its certificate of incorporation, to limit or
eliminate, subject to certain statutory limitations, the liability of
directors to the corporation or its stockholders for monetary damages for
breaches of fiduciary duty, except for liability (a) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (b) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) under Section 174 of the DGCL, or (d) for
any transaction from which the director derived an improper personal
benefit. Article Ninth of the Registrant's Certificate of Incorporation
provides that the personal liability of directors of the Registrant is
eliminated to the fullest extent permitted by Section 102(b)(7) of the DGCL.
Under Section 145 of the DGCL, a corporation has the power to indemnify
directors and officers under certain prescribed circumstances and subject to
certain limitations against certain costs and expenses, including attorneys'
fees actually and reasonably incurred in connection with any action, suit or
proceeding, whether civil, criminal, administrative or investigative, to
which any of them is a party by reason of his being a director or officer of
the corporation if it is determined that he acted in accordance with the
applicable standard of conduct set forth in such statutory provision.
Article V of the Registrant's By-Laws provides that the Registrant will
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 of the fact that he is or was a director, officer, employee or agent
of the Registrant, or is or was serving at the request of the Registrant as
a director, officer, employee or agent of another entity, against certain
liabilities, costs and expenses. Article V further permits the Registrant to
maintain insurance on behalf of any person who is or was a director,
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officer, employee or agent of the Registrant or is or was serving at the
request of the Registrant as a director, officer, employee or agent of
another entity against any liability asserted against such person and
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Registrant would have the power to indemnify such
person against such liability under the DGCL. The Registrant maintains
directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference as
part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
4.1 Amended and Restated Certificate of Incorporation of Balanced
Care Corporation (incorporated by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-1, filed
with the Commission on October 14, 1997, as amended on
December 9, 1997, January 7, 1998, January 14, 1998, February
9, 1998 and February 11, 1998 (File No.
333-37833)).
4.2 Amended and Restated Bylaws of Balanced Care Corporation
(incorporated by reference to Exhibit 3.2 of the Registrant's
Registration Statement on Form S-1, filed with the Commission
on October 14, 1997, as amended on December 9, 1997, January
7, 1998, January 14, 1998, February 9, 1998 and February 11,
1998 (File No.
333-37833)).
5.1 Opinion of Robin L. Barber, Vice President and Senior Counsel
of the Registrant, as to the legality of the shares being
registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Baird, Kurtz & Dobson.
23.4 Consent of Snyder & Clemente.
23.5 Consent of Hodge, Stewart & Company, P.A.
23.6 Consent of Robin L. Barber, Vice President and Senior Counsel
of the Registrant (included in the Opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement).
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers of 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;
(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
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 the
Registrant's annual report pursuant to Section 13(a) or 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 thereto.
* * *
(h) 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, 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 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, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing 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 Mechanicsburg, Commonwealth of Pennsylvania, on
this 24th day of April, 1998.
BALANCED CARE CORPORATION
By: /s/ Brad E. Hollinger
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Brad E. Hollinger
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints either Brad E. Hollinger or Mark S. Moore his
true and lawful attorneys-in-fact and agents, 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 to this
Registration Statement, and to file the same with all exhibits thereto, and
other documentation in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and 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 attorneys-in-fact and agents, or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement and the foregoing Power of Attorney have been signed by the
following persons in the capacities and on the date(s) indicated:
SIGNATURE CAPACITY DATE
/s/ Brad E. Hollinger
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Brad E. Hollinger Chairman of the Board, April 24, 1998
President and
Chief Executive Officer
and a Director
/s/ Paul A. Kruis
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Paul A. Kruis Chief Financial Officer April 24, 1998
/s/ Mark S. Moore
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Mark S. Moore Vice President - Finance and April 24, 1998
Treasurer (Principal
Accounting Officer)
/s/ Kenneth F. Barber
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Kenneth F. Barber Director April 24, 1998
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John M. Brennan Director
/s/ Bill R. Foster
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Bill R. Foster Director April 24, 1998
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SIGNATURE CAPACITY DATE
/s/ David L. Goldsmith
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David L. Goldsmith Director April 24, 1998
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Edward R. Stolman Director
/s/ George H. Strong
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George H. Strong Director April 24, 1998
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EXHIBIT INDEX
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NUMBER
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4.1 Amended and Restated Certificate of --
Incorporation of Balanced Care
Corporation (incorporated by reference
to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1,
filed with the Commission on October 14,
1997, as amended on December 9, 1997,
January 7, 1998, January 14, 1998,
February 9, 1998 and February 11,
1998 (File No. 333-37833)).
4.2 Amended and Restated Bylaws of Balanced --
Care Corporation (incorporated by
reference to Exhibit 3.2 of the
Registrant's Registration Statement on
Form S-1, filed with the Commission on
October 14, 1997, as amended on
December 9, 1997, January 7, 1998,
January 14, 1998, February 9, 1998 and
February 11, 1998 (File No. 333-37833)).
5.1 Opinion of Robin L. Barber, Vice President
and Senior Counsel of the Registrant, as to
the legality of the shares being registered. 8
23.1 Consent of KPMG Peat Marwick LLP. 9
23.2 Consent of Coopers & Lybrand LLP. 10
23.3 Consent of Baird, Kurtz & Dobson. 11
23.4 Consent of Snyder & Clemente. 12
23.5 Consent of Hodge, Stewart & Company, P.A. 13
23.6 Consent of Robin L. Barber, Vice President
and Senior Counsel of the Registrant
(included in the Opinion filed as
Exhibit 5.1). --
24.1 Power of Attorney (set forth on the --
signature page of this Registration
Statement).
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Exhibit 5.1
April 24, 1998
Balanced Care Corporation
5021 Louise Drive, Suite 200
Mechanicsburg, PA 17055
Ladies and Gentlemen:
I am counsel to Balanced Care Corporation, a Delaware corporation (the
"Registrant") and I have acted as counsel to the Registrant in connection with
the Registrant's Registration Statement on Form S-8 (the "Registration
Statement"). The Registration Statement is to be filed with the Securities and
Exchange Commission and relates to the registration under the Securities Act of
1933, as amended, of an aggregate of 2,025,000 shares (the "Shares") of the
Registrant's Common Stock, par value $0.001 per share, in connection with the
Balanced Care Corporation 1996 Stock Incentive Plan (the "Plan").
I am familiar with the Registration Statement and the Plan, and I have
examined the Registrant's Amended and Restated Certificate of Incorporation and
the Registrant's Amended and Restated Bylaws. I have also examined such other
public and corporate documents, certificates, instruments and corporate records,
and such questions of law, as I have deemed necessary or appropriate for the
purpose of this opinion.
Based on the foregoing, I am of the opinion that the Shares, when issued
in accordance with the Plan, will be duly authorized, validly issued, fully
paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Yours truly,
Balanced Care Corporation
By: /s/ Robin L. Barber
--------------------------
Robin L. Barber
Vice President and Senior Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Balanced Care Corporation of our report dated July 30, 1997 (except
for Notes 11 and 12 which are as of January 2, 1998) with respect to the
consolidated financial statements of Balanced Care Corporation for the years
ended June 30, 1997 and 1996 and the period ended June 30, 1995, which report
appears in the Registration Statement on Form S-1, filed with the Securities and
Exchange Commmission on February 11, 1998.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
April 24, 1998
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Balanced Care Corporation of our report dated September 23, 1997, on
our audits of the financial statements of Gethesmane Affiliates, appearing in
the Registration Statement on Form S-1 (No. 333-37833) Securities and Exchange
Commission pursuant to the Securities Act of 1933.
/s/ Coopers & Lybrand, L.L.P.
Coopers & Lybrand, L.L.P.
Harrisburg, Pennsylvania
May 6, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Balanced Care Corporation of (i) our report dated July 17, 1997,
with respect to the financial statements of Foster Health Care Affiliates and,
(ii) our report dated September 12, 1997, with respect to the financial
statements of Heavenly Health Care, Inc., d/b/a Joe Clark Residential Care
Homes, each of which was previously incorporated into Balanced Care
Corporation's Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on February 11, 1998.
/s/ Baird, Kurtz & Dobson
Baird, Kurtz & Dobson
Springfield, Missouri
May 1, 1998
Exhibit 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Balanced Care Corporation of our report dated May 13, 1997, with
respect to the financial statements of Keystone Affiliates, which was previously
incorporated into Balanced Care Corporation's Registration Statement on Form S-1
filed with the Securities and Exchange Commission on February 11, 1998.
/s/ Snyder & Clemente
Snyder & Clemente
Kingston, Pennsylvania
April 24, 1998
Exhibit 23.5
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Balanced Care Corporation of our report dated September 23, 1997,
with respect to the financial statements of Triangle Retirement Services, Inc.
which was previously incorporated into Balanced Care Corporation's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission on
February 11, 1997.
/s/ Hodge, Steward & Company, P.A.
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Hodge, Steward & Company, P.A.
Raleigh, North Carolina
April 24, 1998
