<PAGE> 1
As filed with the Securities and Exchange Commission on December 5, 1997
Registration No. 333-
--------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHYSICIANS' SPECIALTY CORP.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
58-2251438
(I.R.S. employer identification no.)
1150 LAKE HEARN DRIVE, SUITE 640, ATLANTA, GEORGIA 30342
(Address of principal executive offices) (Zip code)
PHYSICIANS' SPECIALTY CORP. 1996 STOCK OPTION PLAN
(Full title of the plan)
RAMIE A. TRITT, M.D.
1150 LAKE HEARN DRIVE, SUITE 640
ATLANTA, GEORGIA 30342
(Name and address of agent for service)
(404) 256-7535
(Telephone number, including area code, of agent for service)
Copy to:
Jill Cohen, Esq.
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, New York 10017
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of each Class of Amount to Price Per Offering Registration
Securities to be Registered be Registered(1) Share(2) Price Fee
- --------------------------- ---------------- -------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 550,000 $10.125 $5,568,750 $1,642.78
</TABLE>
- ---------------------------------------
(1) Pursuant to Rule 416, promulgated under the Securities Act of 1933, as
amended, an additional undeterminable number of shares of Common Stock
is being registered to cover any adjustment in the number of shares of
Common Stock pursuant to the anti-dilution provisions of the 1996
Stock Option Plan.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The price shown is the average of
the high and low price of the Common Stock on December 3, 1997 as
reported on Nasdaq.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
will be sent or given to employees as specified by Rule 428(b)(1). In
accordance with the instructions to Part I of Form S-8, such documents will not
be filed with the Commission either as part of this registration statement or
as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed below are hereby incorporated by
reference into this Registration Statement. In addition, all documents
subsequently filed by Physicians' Specialty Corp. (the "Registrant") pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(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 such
documents:
(a) the Registrant's Prospectus dated March 20,
1997;
(b)(1) the Registrant's Quarterly Report on Form
10-Q for the three-month period ended March
31, 1997;
(b)(2) the Registrant's Quarterly Report on Form
10-Q for the six-month period ended June 30,
1997;
(b)(3) the Registrant's Quarterly Report on Form
10-Q for the nine month period ended
September 30, 1997; and
(c) the Registrant's Registration Statement on
Form 8-A declared effective by the Securities
and Exchange Commission on March 20, 1997,
including any amendment or supplement
thereto.
-2-
<PAGE> 3
Item 6. Indemnification of Directors and Officers
The Certificate of Incorporation and By-Laws of the
Registrant provides that the Registrant shall indemnify any person to the full
extent permitted by the Delaware General Corporation Law (the "GCL"). Section
145 of the GCL, relating to indemnification, is hereby incorporated herein by
reference.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers or controlling persons of the Registrant pursuant to the
Registrant's By-laws and the Delaware General Corporation Law, the Registrant
has been informed 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.
The Registrant's Certificate of Incorporation includes
certain provisions permitted pursuant to Delaware law whereby officers and
directors of the Registrant are to be indemnified against certain liabilities.
The Registrant's Certificate of Incorporation also limits, to the fullest
extent permitted by Delaware law, a director's liability for monetary damages
for breach of fiduciary duty, including gross negligence, except liability for
(i) breach of the director's duty of loyalty, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
the law, (iii) the unlawful payment of a dividend or unlawful stock purchase or
redemption and (iv) any transaction from which the director derives an improper
personal benefit. Delaware law does not eliminate a director's duty of care and
this provision has no effect on the availability of equitable remedies such as
injunction or rescission based upon a director's breach of the duty of care.
In accordance with Section 102(a)(7) of the GCL, the
Certificate of Incorporation of the Registrant eliminates the personal
liability of directors to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director with certain limited
exceptions set forth in Section 102(a)(7).
The Registrant has entered into indemnification agreements
with each of its executive officers and directors, the form of which was filed
as Exhibit 10.15 to the Registrant's Registration Statement on Form S-1 (File
No. 333-17091).
The Registrant has obtained and maintains a policy of
insurance with a face amount of $5,000,000 (subject to certain deductible
provisions and exclusions) covering its officers and directors and indemnifying
them against loss on account of claims made against them, including, but not
limited to, damages, judgments, costs and the costs of defense of such claims,
arising from breach of duty, neglect, error, negligent misrepresentations,
omission or act, or any claim arising solely by reason of status as an officer
or director.
-3-
<PAGE> 4
Item 8. Exhibits
4.1 Physicians' Specialty Corp. 1996 Stock Option
Plan (incorporated by reference to
Registration Statement on Form S-1, File No.
333-17091)
5.1 Opinion of Bachner, Tally, Polevoy & Misher
LLP with respect to the legality of the
Common Stock to be registered hereunder
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Bachner, Tally, Polevoy & Misher
LLP (contained in Exhibit 5)
24 Power of Attorney (included on signature page)
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;
(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;
(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.
-4-
<PAGE> 5
(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 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to 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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant as described above, 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-
<PAGE> 6
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 Atlanta, State of Georgia, on the 28th day of
of November 1997.
PHYSICIANS' SPECIALTY CORP.
By: /s/ Ramie A. Tritt, M.D.
-------------------------------------
Ramie A. Tritt, M.D.
Chairman of the Board and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below under the heading "Signature" constitutes and appoints Ramie A.
Tritt, M.D. and Gerald R. Benjamin or either of them, 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
or all 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 attorneys-in-fact and
agents, each acting alone, 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 for all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ramie A. Tritt, M.D. Chairman of the Board November 28, 1997
- --------------------------------- and President
Ramie A. Tritt, M.D. (principal executive officer)
/s/ Robert A. DiProva Executive Vice President and November 28, 1997
- --------------------------------- Chief Financial Officer
Robert A. DiProva (principal financial and
accounting officer)
</TABLE>
-6-
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ Richard D. Ballard Chief Executive Officer November 28, 1997
- --------------------------------- and Director
Richard D. Ballard
/s/ Gerald R. Benjamin Vice Chairman of the November 28, 1997
- ---------------------------------- Board and Secretary
Gerald R. Benjamin
/s/ Edward R. Casas, M.D. Director November 28, 1997
- ----------------------------------
Edward R. Casas, M.D.
/s/ Sidney Kirschner Director November 28, 1997
- ----------------------------------
Sidney Kirschner
/s/ Steven L. Posar, M.D. Director November 28, 1997
- ----------------------------------
Steven L. Posar, M.D.
</TABLE>
-7-
<PAGE> 8
INDEX TO EXHIBITS
Exhibit
No. Description
4.1 Physicians' Specialty Corp. 1996 Stock Option Plan
(incorporated by reference to Registration Statement
on Form S-1 (File No. 333-17091)
5.1 Opinion of Bachner, Tally, Polevoy & Misher LLP with
respect to the legality of the Common Stock to be
registered hereunder
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Bachner, Tally, Polevoy & Misher LLP
(contained in Exhibit 5)
24 Power of Attorney (included on signature page)
<PAGE> 1
Exhibit 5.1
December 3, 1997
Physicians' Specialty Corp.
1150 Lake Hearn Drive
Suite 640
Atlanta, GA 30342
Gentlemen:
You have requested our opinion with respect to the issuance by Physicians'
Specialty Corp., a Delaware corporation (the "Company"), of an aggregate of
550,000 shares (the "Shares") of Common Stock, par value $.001 per share (the
"Common Stock"), issuable under the Company's 1996 Stock Option Plan (the
"Plan"), pursuant to a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act").
We have examined originals, or copies certified or otherwise identified to
our satisfaction, of such documents and corporate and public records as we deem
necessary as a basis for the opinion hereinafter expressed. With respect to
such, we have assumed the genuineness of all signatures appearing on all
documents presented to us as originals, and the conformity to the originals of
all documents presented to us as conformed or reproduced copies. Where factual
matters relevant to such opinion were not independently established, we have
relied upon certificates of officers and responsible employees and agents of
the Company.
Based upon the foregoing, it is our opinion that the Shares issuable under
the Plan will be, when sold, paid for and issued as contemplated by the terms
of the Plan, duly and validly issued and fully paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement, and to the use of our name in the Registration
Statement. In giving this consent, we do not thereby concede that we come
within the categories of persons whose consent is required by the Act or the
General Rules and Regulations promulgated thereunder.
Very truly yours,
BACHNER, TALLY, POLEVOY & MISHER, LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 17, 1997 included in Physicians' Specialty Corp.'s Prospectus dated
March 20, 1997 and to all references to our Firm included in this registration
statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
November 28, 1997
