<PAGE>
As filed with the Securities and Exchange Commission on April 21, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
AMERICAN DENTAL PARTNERS, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3297858
(State or other jurisdiction of (IRS Employer Identifica-
incorporation or organization) tion Number)
301 Edgewater Place, Suite 320
Wakefield, Massachusetts 01880
(Address of principal executive offices) (Zip code)
American Dental Partners, Inc.
1997 Employee Stock Purchase Plan
(Full title of the plan)
Gregory A. Serrao, Chairman, President and
Chief Executive Officer
American Dental Partners, Inc.
301 Edgewater Place, Suite 320
Wakefield, Massachusetts 01880
(781) 224-0880
(781) 224-4216 (fax)
(Name, address and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price per offering registration
to be registered registered(1) share(2) price(2) fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 200,000 $12.75 $2,550,000 $753.00
============================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this
Registration Statement also includes an indeterminable number of additional
shares of Common Stock that may become issuable pursuant to antidilution
adjustment provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h)(1) and 457(a) under the Securities Act of
1933, as amended, on the basis of a bona fide estimate of the maximum
offering price and aggregate contributions thereof by employees.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this Registration
Statement:
(a) The prospectus contained in Amendment No. 4 to the Registrant's
Registration Statement on Form S-1, File No. 333-39981, filed with the
Securities and Exchange Commission on March 23, 1998 (the "S-1"); provided
that such prospectus shall be superseded by the prospectus described in the
following paragraph (b).
(b) The Registrant's latest prospectus, other than the prospectus of
which this document is a part, filed with the Securities and Exchange
Commission pursuant to Rule 424(b) or (c) promulgated under the Securities
Act of 1933, as amended (the "Securities Act"); and
(c) The description of the Registrant's shares of Common Stock which
is contained in the Registrant's Registration Statement filed under Section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment to this Registration Statement which indicates that all of
the shares of Common Stock offered have been sold or which deregisters all of
such shares 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. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby will be passed
upon for the Registrant by Baker & Hostetler LLP, Columbus, Ohio. Gary A.
Wadman, a partner of Baker & Hostetler LLP, is the secretary of the Registrant.
-1-
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended (the
"DGCL"), provides that a corporation may 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, whether civil, criminal or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amount paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, against expenses actually and
reasonably incurred in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Article 6 of the Amended and Restated By-Laws of the Company, a copy of
which is filed as Exhibit 4(b) contains certain indemnification provisions
adopted pursuant to authority contained in Section 145 of the DGCL. The By-Laws
provide for the indemnification of the Company's officers, directors, employees,
and agents against all expenses with respect to any judgments, fines, and
amounts paid in settlement, or with respect to any threatened, pending, or
completed action, suit, or proceeding to which they were or are parties or are
threatened to be made parties by reason of acting in such capacities, provided
that it is determined, either by a majority vote of a quorum of disinterested
directors of the Company or by the stockholders of the Company or otherwise as
provided in Section 6.4 of Article 6 of the By-laws, that: (i) they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the Company; (ii) in any action, suit, or proceeding by or
in the right of the Company, they were not, and have not been adjudicated to
have been, liable to the Company; and (iii) with respect to any criminal action
or proceeding, they had no reasonable cause to believe that their conduct was
unlawful. Section 6.3 of Article 6 of the By-Laws provides that to the extent a
director, officer, employee, or agent has been successful on the merits or
otherwise in defense of any such action, suit, or proceeding, he shall be
indemnified against expenses actually and reasonably incurred in connection
therewith. At present, there are no claims, actions, suits, or proceedings
pending where indemnification would be required under these provisions, and the
Company does not know of any threatened claims, actions, suits, or proceedings
which may result in a request for such indemnification.
Under Section 145 of the Delaware Law and Section 6.7 of the By-Laws, the
Company may purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee, or agent of the Company, or who, while
serving in such capacity, is or was, at the
-2-
<PAGE>
request of the Company, a director, officer, employee or agent of another
corporation or legal entity or of an employee benefit plan, against liability
asserted against or incurred by such person in any such capacity whether or not
the corporation would have the power to provide indemnity under Section 145 or
the By-Laws. The Company has purchased a liability policy to indemnify its
officers and directors against loss arising from claims by reason of their legal
liability for acts as officers and directors, subject to limitations and
conditions set forth in the policy.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (relating to
unlawful payment of dividends and unlawful stock purchase and redemption) or
(iv) for any transaction from which the director derived an improper personal
benefit.
Article Ninth of the Second Amended and Restated Certificate of
Incorporation of the Company, a copy of which is filed as Exhibit 4(a),
eliminates personal liability of a director to the Company and its stockholders
for monetary damages for breach of fiduciary as a director to the maximum extent
permitted by Section 102(b)(7) of the DGCL.
The Underwriting Agreement entered into by the Registrant in connection
with its public offering of Common Stock pursuant to the S-1 (a form of which
appears as Exhibit 1 to the S-1) provides for indemnification of the
Registrant's directors and officers in certain circumstances. The
indemnification provided for by the Underwriters is limited to matters arising
in connection with the S-1. Reference is made to paragraph eight of the
Underwriting Agreement for information concerning indemnification undertaken
among the Company and the Underwrites.
The above discussion of the Company's Certificate of Incorporation and
ByLaws and of Section 145 of the DGCL is not intended to be exhaustive and is
respectively qualified in its entirety by such Certificate of Incorporation, By-
Laws and statutes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
If Incorporated by Reference,
Exhibit Document with which Exhibit was
No. Description of Exhibit Previously Filed with SEC
- ------- ---------------------- -------------------------------
<S> <C> <C>
4(a) Second Amended and Restated Amendment No. 1 to Registration
Certificate of Incorporation Statement on Form S-1, File No.
of American Dental 333-39981 (see Exhibit 3(a)
Partners, Inc. therein).
4(b) Amended and Restated By-Laws of Registration Statement on Form S-1,
American Dental Partners, Inc. File No. 333-39981 (see Exhibit 3(b)
therein).
</TABLE>
-3-
<PAGE>
<TABLE>
<CAPTION>
If Incorporated by Reference,
Exhibit Document with which Exhibit was
No. Description of Exhibit Previously Filed with SEC
- ------- ---------------------- -------------------------------
<S> <C> <C>
4(c) Form of stock certificate. Amendment No. 1 to Registration
Statement on Form S-1, File No.
333-39981 (see Exhibit 4 therein).
4(d) American Dental Partners, Inc. Contained herein.
1997 Employee Stock Purchase Plan.
4(e) Amendment No. 1 to American Dental Contained herein.
Partners, Inc. 1997 Employee Stock
Purchase Plan.
5 Opinion of Baker & Hostetler LLP. Contained herein.
23(a) Consent of Baker & Hostetler LLP. Contained in Exhibit 5.
23(b) Consent of KPMG Peat Marwick LLP. Contained herein.
24 Powers of Attorney. Contained herein.
</TABLE>
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(a) 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;
(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)(i) and
(a)(ii) shall 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.
(b) 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.
(c) 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.
The 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
-4-
<PAGE>
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 provisions described in Item 6, 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 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, 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 and will be governed by the final adjudication of such issue.
-5-
<PAGE>
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 Wakefield, State of Massachusetts, on April 21,
1998.
AMERICAN DENTAL PARTNERS, INC.
Date: April 21, 1998 By /s/ Gregory A. Serrao
-----------------------------------------
Gregory A. Serrao, Chairman,
President and Chief Executive Officer
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.
Signature Title Date
--------- ----- ----
<TABLE>
<CAPTION>
<S> <C> <C>
/s/Gregory A. Serrao Chairman, President, Chief April 21, 1998
- ------------------------- Executive Officer and
Gregory A. Serrao Director (principal
executive officer)
/s/Ronald M. Levenson Senior Vice President, Chief April 21, 1998
- ------------------------- Financial Officer and Treasurer
Ronald M. Levenson (principal financial and
principal accounting officer)
Dr. Gregory T. Swenson* Director April 21, 1998
- -------------------------
Dr. Gregory T. Swenson
Martin J. Mannion* Director April 21, 1998
- -------------------------
Martin J. Mannion
James T. Kelly* Director April 21, 1998
- -------------------------
James T. Kelly
Derril W. Reeves* Director April 21, 1998
- -------------------------
Derril W. Reeves
</TABLE>
*The undersigned, Gregory A. Serrao, by signing his name hereto, does
hereby execute this Registration Statement on behalf of each of the above-named
directors of the Registrant pursuant to powers of attorney duly executed by such
directors and filed with the Securities and Exchange Commission as exhibits to
this Registration Statement.
By /s/ Gregory A. Serrao April 21, 1998
--------------------------------------
Gregory A. Serrao, Attorney in Fact
-6-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
If Incorporated by Reference,
Exhibit Document with which Exhibit was
No. Description of Exhibit Previously Filed with SEC
- ------- ---------------------- -------------------------------
<S> <C> <C>
4(a) Second Amended and Restated Amendment No. 1 to Registration
Certificate of Incorporation of Statement on Form S-1, File No.
American Dental Partners, Inc. 333-39981 (see Exhibit 3(a) therein).
4(b) Amended and Restated By-Laws of Registration Statement on Form S-1,
American Dental Partners, Inc. File No. 333-39981 (see Exhibit 3(b)
therein).
4(c) Form of stock certificate. Amendment No. 1 to Registration
Statement on Form S-1, File No.
333-39981 (see Exhibit 4 therein).
4(d) American Dental Partners, Inc. 1997 Contained herein.
Employee Stock Purchase Plan.
4(e) Amendment No. 1 to American Dental Contained herein.
Partners, Inc. 1997 Employee Stock
Purchase Plan.
5 Opinion of Baker & Hostetler LLP. Contained herein.
23(a) Consent of Baker & Hostetler LLP. Contained in Exhibit 5.
23(b) Consent of KPMG Peat Marwick LLP. Contained herein.
24 Powers of Attorney. Contained herein.
</TABLE>
<PAGE>
Exhibit 4(d)
AMERICAN DENTAL PARTNERS, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
(S)1. Purpose.
-------
The purpose of the 1997 Employee Stock Purchase Plan (the "Plan") of
American Dental Partners, Inc., a Delaware corporation (the "Company"), is to
provide Eligible Employees (as defined in (S)4, below) with an opportunity to
participate in the growth and success of the Company by acquiring or increasing
a proprietary interest in the Company through the application of payroll
deductions to the purchase of shares of the Company's common stock, par value
$0.01 (the "Shares"). The Plan is intended to meet the requirements of (S)423
of the Internal Revenue Code of 1986, as amended (the "Code"), and to be a
"Stock Purchase Plan" under Rules 16b-3(b)(5) and 16b-3(c) promulgated under the
Securities Exchange Act of 1934, as amended (the "1934 Act").
(S)2. Administration.
--------------
The Plan shall be administered by the Company's board of directors (the
"Board"). The Board shall have the power and authority to adopt, alter, and
repeal such administrative rules, guidelines, and practices governing the Plan
as it shall, from time to time, deem advisable, interpret the terms and
provisions of the Plan and any Option granted and any agreements relating
thereto, and take any other actions the Board considers appropriate in
connection with, and otherwise supervise the administration of, the Plan, all in
a manner consistent with the other provisions of the Plan. All decisions made
by the Board pursuant to the provisions hereof shall be made in the Board's sole
discretion and shall be final and binding on all persons.
The Board may, in its discretion at any time or from time to time, appoint
a committee (the "Committee") of not less than one director to administer the
Plan, in which event the Committee shall have such of the powers and duties of
the Board under the Plan as the Board shall delegate to the Committee. The
member or members of the Committee shall serve at the pleasure of the Board,
which may remove members from the Committee or appoint new members to the
Committee from time to time, and members of the Committee may resign by written
notice to the Chairman of the Board or the Secretary of the Company.
(S)3. Shares Subject to the Plan.
--------------------------
The maximum aggregate number of Shares reserved and available for purchase
under the Plan shall be 200,000 Shares, which may be authorized but unissued
Shares or issued Shares reacquired by the Company and held as treasury Shares.
Such aggregate number of Shares shall be subject to adjustment under (S)17,
below.
1
<PAGE>
(S)4. Eligibility.
-----------
Except as provided in this (S)4, any employee of the Company or of any
Subsidiary (as defined below) who, as of the first day of the Option Period (as
defined in (S)5, below), has been continuously employed by the Company, any
Subsidiary, or any combination thereof for at least six months and who works at
least 20 hours per week for the Company, any Subsidiary, or any combination
thereof shall be eligible to participate in the Plan (each such employee, an
"Eligible Employee"). For purposes of this (S)4, "Subsidiary" or "subsidiary
corporation" shall have the definition set forth in (S)424(f) of the Code and
rules and regulations thereunder. Notwithstanding any other provision of this
Plan to the contrary, no person who is otherwise an Eligible Employee shall be
granted an Option (as defined in (S)7, below) if:
(a) Such person, immediately after the grant of the Option, would own
stock possessing five percent or more of the total combined voting power or
value of all classes of stock of the Company or its parent or any of its
subsidiary corporations. For purposes of this (S)4(a), such person's stock
ownership shall be determined by applying the rules of (S)424(d) of the
Code and shall include stock which would be owned if all of such person's
outstanding Options to purchase stock were exercised; or
(b) The grant of the Option would permit such person's rights to
purchase stock under all "employee stock purchase plans" (as defined in
(S)423 of the Code) of the Company and its parent and subsidiary
corporations to accrue at a rate which exceeds $25,000 of fair market value
of such stock (determined at the time such Option is granted) for each
calendar year in which such Option is outstanding at any time. For
purposes of this (S)4(b): (i) the right to purchase stock under an Option
accrues when the right (or any portion thereof) first becomes exercisable
during the calendar year; (ii) the right to purchase stock under an Option
accrues at the rate provided in the Option, but in no case may such rate
exceed $25,000 of fair market value of such stock (determined at the time
such Option is granted) for any one calendar year; and (iii) the right to
purchase stock which has accrued under one Option granted pursuant to the
Plan may not be carried over to any other Option.
(S)5. Participation.
-------------
Each person who will be an Eligible Employee on the first day of an Option
Period (as defined below) may elect to participate in the Plan by executing and
delivering, at least 15 days prior to such day, a payroll deduction
authorization in accordance with (S)6, below (a "Deduction Authorization").
Such person will thereby become a participant in the Plan (a "Participant") as
of the first day of such Option Period and will remain a Participant until his
or her participation is terminated as provided under the Plan. An "Option
Period" under the Plan shall be (a) the period beginning on the closing date of
an initial public offering of Shares pursuant to a registration statement filed
under the Securities Act of 1933, as amended, and ending on the earlier of the
JuneE30 or December 31 which next follows such closing date (the "Initial Option
Period"), and (b) following the Initial Option Period, each successive six-month
2
<PAGE>
period of January 1 through June 30 and July 1 through December 31 during which
the Plan remains in effect.
(S)6. Payroll Deductions.
------------------
Each Participant shall, on his or her Deduction Authorization, request
withholding at a rate (in whole percentages) of not less than 2% nor more than
10% of his or her Compensation (as defined below), such withholding to be spread
substantially equally over the Option Period, provided that no more than $10,000
shall be withheld from any Participant's Compensation for any one Option Period.
For purposes of the Plan, "Compensation" shall mean all compensation paid to the
Participant by the Company or any Subsidiary and currently includible in his or
her income, including without limitation bonuses, commissions and other amounts
includible in the definition of compensation provided in the Treasury
Regulations promulgated under (S)415 of the Code, plus any amount that would be
so included but for the fact that it was contributed to a qualified plan
pursuant to an elective deferral under (S)401(k) of the Code, but not including
payments under stock option plans and other employee benefit plans or any other
amounts excluded from the definition of compensation provided in the Treasury
Regulations under (S)415 of the Code. A Participant may reduce the withholding
rate of his or her Deduction Authorization by one or more whole percentage
points (but not to below 2%) at any time during an Option Period by delivering
written notice to the Company, such reduction to take effect prospectively as
soon as practicable following receipt of such notice by the Company. A
Participant may increase or reduce the withholding rate of his or her Deduction
Authorization for a future Option Period by written notice delivered to the
Company at least 15 days prior to the first day of the Option Period with
respect to which the change is to be effective. All amounts withheld in
accordance with a Participant's Deduction Authorization shall be credited to a
withholding account for such Participant.
(S)7. Grant of Options.
----------------
Each person who is a Participant on the first day of an Option Period
shall, as of such day, be granted an option to purchase Shares under the Plan
(an "Option") for such Option Period. Such Option shall be for the number of
whole Shares (not in excess of the Share Maximum (as defined below)) which shall
be determined by dividing (i) the balance in the Participant's withholding
account on the last day of the Option Period by (ii) the purchase price per
Share determined under (S)8, below. For purposes of the preceding sentence, the
Share Maximum with respect to any Option for any Option Period shall be the
largest number of Shares which, when multiplied by the Fair Market Value of a
Share at the beginning of the Option Period, produces the highest dollar amount
not exceeding $12,500. The number of Shares receivable by each Participant upon
exercise of his or her Option for an Option Period shall be reduced, on a
substantially proportionate basis, in the event that the number of Shares then
available under the Plan is otherwise insufficient.
3
<PAGE>
(S)8. Purchase Price.
--------------
The purchase price of Shares subject to an Option shall be 85% of the
lesser of the Fair Market Value (as defined below) at the beginning of the
Option Period or the Fair Market Value at the end of the Option Period. For
purposes of the Plan, the first day of the Option Period shall be deemed to be
the date an Option is granted, and the last day of the Option Period shall be
deemed to be the date an Option is exercised.
The Fair Market Value of the Shares as of any given date shall be the (i)
last reported sale price on the New York Stock Exchange on the most recent
previous trading day, (ii) last reported sale price on the NASDAQ National
Market System on the most recent previous trading day, (iii) mean between the
high and low bid and ask prices, as reported by the National Association of
Securities Dealers, Inc. on the most recent previous trading day, or (iv) last
reported sale price on any other stock exchange on which the Shares are listed
on the most recent previous trading day, whichever is applicable.
(S)9. Exercise of Options.
-------------------
Each Employee who is a Participant in the Plan on the last day of an Option
Period shall be deemed to have exercised on the last day of the Option Period
the Option granted to him or her for that Option Period. Upon such exercise,
the balance of the Participant's withholding account shall be applied to the
purchase of the number of whole Shares determined under (S)7, above, and as soon
as practicable thereafter, at the Company's option, either (a) certificates for
such Shares shall be issued and delivered to the Participant, or (b) a brokerage
or other account maintained in such Participant's name under the Plan shall be
updated to reflect the issuance of such Shares to the Participant. In the event
that the balance in the Participant's withholding account at the end of an
Option Period is in excess of the total purchase price of the Shares so issued,
such balance shall be returned to the Participant; provided that if such balance
consists solely of an amount equal to the value of a fractional Share, such
balance shall be retained in the withholding account and carried over to the
next Option Period. The entire balance of the Participant's withholding account
following the final Option Period shall be returned to the Participant. No
fractional Shares shall be issued hereunder.
(S)10. Interest.
--------
No interest shall be payable on withholding accounts.
(S)11. Cancellation and Withdrawal.
---------------------------
A Participant who holds an Option under the Plan may, by written notice
delivered to the Company at any time prior to exercise thereof under (S)9,
above, cancel such Option as to all (but not less than all) the Shares subject
or to be subject to such Option. Upon such cancellation, the balance in such
Participant's withholding account shall be returned to him or her.
4
<PAGE>
A Participant may terminate his or her Deduction Authorization as of any
date by written notice delivered to the Company and shall thereby cease to be a
Participant as of such date. Any Participant who voluntarily terminates his or
her Deduction Authorization prior to the last business day of any Option Period
shall be deemed to have cancelled his or her Option.
Any Participant who cancels an Option or terminates his or her Deduction
Authorization may at any time thereafter again become a Participant in
accordance with (S)5, above.
(S)12. Termination of Employment.
-------------------------
Subject to (S)13, below, upon the termination of a Participant's service
with the Company and its Subsidiaries for any reason: (a) he shall cease to be
a Participant; (b) any Option held by such Participant under the Plan shall be
deemed cancelled; (c) the balance of his or her withholding account shall be
returned to him or her; and (d) he shall have no further rights under the Plan.
(S)13. Death of Participant.
--------------------
A participant may file a written designation of beneficiary (a "Beneficiary
Designation") specifying who is to receive any Shares and cash credited to the
Participant under the Plan in the event of the Participant's death. In the
Beneficiary Designation, the Participant shall elect either: (a) to cancel his
or her Option upon his or her death, as provided in (S)11, above, or (b) to
apply the balance of the Participant's withholding account at the time of death
to the exercise of his or her Option on the last day of the Option Period, as
provided in (S)9, above. In the absence of a valid election otherwise, the
death of a Participant shall be deemed to effect a cancellation of his or her
Option. A Beneficiary Designation and election may be changed by the
Participant at any time upon written notice received by the Company. In the
event of the death of a Participant and receipt by the Company of proof of the
identity and existence at the time of the Participant's death of a beneficiary
validly designated by him or her under the Plan, the Company shall deliver to
such beneficiary such Shares and cash to which the beneficiary is entitled under
the Plan. In the event of the death of a Participant and in the absence of a
beneficiary validly designated under the Plan who is living at the time of such
Participant's death, the Company shall deliver such Shares and cash to the
executor or administrator of the estate of the Participant, if the Company is
able to identify such executor or administrator. If the Company is unable to
identify such administrator or executor, the Company, in its sole discretion,
may deliver such Shares and cash to the spouse or to any one or more dependents
of the deceased Participant. No beneficiary shall, prior to the death of the
Participant by whom he has been designated, acquire any interest in any Shares
or cash credited to the Participant under the Plan.
5
<PAGE>
(S)14. Rights as Stockholder.
---------------------
No Participant, his or her validly designated beneficiary, or his or her
executor or administrator shall have any rights of a stockholder in the Company
with respect to the Shares subject to an Option unless and until, pursuant to
(S)9, above, either a certificate representing such Shares has been duly issued
and delivered to him or her or the brokerage or other account maintained in his
or her name under the Plan has been updated to reflect the issuance of such
Shares to him or her.
(S)15. Term and Termination of Plan.
----------------------------
The Plan shall terminate automatically following the end of the Option
Period ending DecemberE31, 2007; provided that the Board may, in its discretion,
extend the Plan for one or more additional Option Periods. The Plan may be
earlier suspended or terminated by the Board, but no such suspension or
termination shall adversely affect the rights and privileges of holders of
outstanding Options. The Plan shall terminate in any case when all the Shares
reserved for issuance under the Plan have been purchased.
(S)16. Amendment of Plan.
-----------------
The Board may at any time, or from time to time, amend the Plan in any
respect; provided that without the approval of holders of stock entitled to
exercise a majority of the voting power of the Company no amendment may be made
(a) changing the aggregate number of Shares reserved for issuance under the Plan
or (b) changing the designation of employees eligible to participate in the
Plan. Any amendment requiring stockholder approval under this (S)16 shall be
submitted to the stockholders of the Company for approval as soon as practicable
after adoption of the amendment by the Board but in any event not later than 12
months after the adoption of the amendment. If such amendment is not approved
by the stockholders of the Company within 12 months before or after the adoption
of the amendment by the Board, such amendment shall become null and void and
have no further force or effect.
(S)17. Changes in Capital Structure.
----------------------------
In the event the Company changes its outstanding Shares after the effective
date of this Plan by reason of stock splits, stock dividends, or any other
increase or reduction of the number of outstanding Shares without receiving
consideration in the form of money, services, or property deemed appropriate by
the Board, in its sole discretion, the aggregate number of Shares subject to the
Plan shall be proportionately adjusted and the number of Shares and the exercise
price for each Share subject to any then-outstanding Option shall be
proportionately adjusted with the objective that the Participant's proportionate
interest in the Company shall remain the same as before the change without any
change in the total exercise price applicable to any then-outstanding Options,
as determined by the Committee in its sole discretion.
In the event of any other recapitalization or any merger, consolidation, or
other reorganization of the Company, the Board shall make such adjustment, if
any, as it may deem
6
<PAGE>
appropriate to accurately reflect the number and kind of shares deliverable, and
the exercise prices payable, upon subsequent exercise of any then-outstanding
Options, all as determined by the Board in its sole discretion.
The Board's determination of the adjustments appropriate to be made under
this (S)17 shall be conclusive upon all Participants under the Plan.
(S)18. Application of Funds.
--------------------
All funds received or held by the Company under the Plan may be used for
any corporate purpose until applied to the purchase of Shares or refunded to
Participants or both. At the Company's option, withholding accounts for
individual Participants shall not be segregated.
(S)19. Options Not Transferable.
------------------------
Options under the Plan shall not be transferable by a Participant other
than by will or the laws of descent and distribution and shall be exercisable
during the Participant's lifetime only by the Participant. Any payment of cash
or issuance of Shares under the Plan may be made only to the Participant or, in
the event of the Participant's death, to the Participant's estate or beneficiary
validly designated under (S)13, above.
(S)20. Governmental Regulations; Securities Law Restrictions.
-----------------------------------------------------
The Company's obligation to issue, sell, and deliver Shares under the Plan
shall be subject to the approval of any governmental authority required in
connection with the authorization, issuance, or sale of such Shares, including
without limitation any applicable tax withholding requirements.
No Option shall be exercisable and no Shares shall be delivered under the
Plan except in compliance with all applicable federal and state securities laws
and regulations. The Company may require each person acquiring Shares pursuant
to the exercise of an Option to represent and warrant to and agree with the
Company in writing that the person is acquiring the Shares without a view to
distribution thereof and to make such additional representations, warranties and
agreements as the Company may reasonably request.
All certificates for Shares or other securities delivered under the Plan
shall be subject to such stop-transfer orders and other restrictions as the
Company may deem advisable under the rules, regulations, and other requirements
of the Securities and Exchange Commission, any stock exchange upon which the
Shares are then listed, and any applicable federal or state securities laws, and
the Company may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions or applicable restrictions under
the Plan.
7
<PAGE>
(S)21. Genders and Numbers.
--------------------
When permitted by the context, each pronoun used in this document includes
the same pronoun in other genders and numbers, and each noun used in this
document includes the same noun in other genders.
(S)22. Effective Date.
--------------
The Plan shall be effective December 1, 1997. The Plan shall be submitted
to the stockholders of the Company for approval as soon as practicable after its
adoption by the Board but in any event not later than 12 months after its
adoption by the Board. Notwithstanding anything to the contrary contained
herein, no rights to purchase Shares under the Plan shall be exercisable prior
to such approval. If the Plan is not approved by the stockholders of the
Company within 12 months before or after the adoption of the Plan by the Board,
the Plan and all Options granted under the Plan shall become null and void and
have no further force or effect.
(S)23. Savings Clause.
--------------
In case any one or more of the provisions of this Plan shall be held
invalid, illegal, or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and the invalid, illegal, or unenforceable provision shall be
deemed null and void; however, to the extent permissible by law, any provision
which could be deemed null and void shall first be construed, interpreted, or
revised retroactively to permit this Plan to be construed so as to foster the
intent of this Plan. This Plan is intended to comply in all respects with
applicable law and regulation, including (S)423 of the Code and, with respect to
persons subject to (S)16 of the 1934 Act ("Reporting Persons"), Rule 16b-3 under
the 1934 Act. In case any one or more of the provisions of this Plan shall be
held to violate or be unenforceable in any respect under (S)423 or Rule 16b-3,
then, to the extent permissible by law, any provision which could be deemed to
violate or be unenforceable under (S)423 or Rule 16b-3 shall first be construed,
interpreted, or revised retroactively to permit the Plan to be in compliance
with (S)423 and Rule 16b-3.
8
<PAGE>
Exhibit 4(e)
AMENDMENT NO. 1
TO
AMERICAN DENTAL PARTNERS, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
The American Dental Partners, Inc. 1997 Employee Stock Purchase Plan (the
"Plan") is hereby amended pursuant to the following provisions:
(S)1. Definitions
-----------
All capitalized terms used in this amendment which are not otherwise
defined herein shall have the respective meanings given such terms in the Plan.
(S)2. Option Period
-------------
The third sentence of (S)5 of the Plan is hereby deleted in its entirety
and replaced with the following:
An "Option Period" under the Plan shall be (a) the period beginning on the
closing date of an initial public offering of Shares pursuant to a
registration statement filed under the Securities Act of 1933, as amended,
and ending on either the June 30 or December 31 which next follows such
closing date and which is not less than six calendar months after such
closing date (the "Initial Option Period"), and (b) following the Initial
Option Period, each successive six-month period of January 1 through June
30 and July 1 through December 31 during which the Plan remains in effect.
(S)3. Effective Date; Construction
----------------------------
The effective date of this amendment is February 27, 1998, and this
amendment shall be deemed to be a part of the Plan as of such date. In the
event of any inconsistencies between the provisions of the Plan and this
amendment, the provisions of this amendment shall control. Except as modified
by this amendment, the Plan shall continue in full force and effect without
change.
<PAGE>
EXHIBIT 5
OPINION OF BAKER & HOSTETLER LLP
BAKER & HOSTETLER LLP
65 East State Street
Suite 2100
Columbus, Ohio 43215
April 21, 1998
American Dental Partners, Inc.
301 Edgewater Place, Suite 320
Wakefield, Massachusetts 01880-1249
Ladies and Gentlemen:
We are acting as counsel to American Dental Partners, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
to register 200,000 shares of common stock, par value $.01, of the Company (the
"Shares") for offer and sale under, and pursuant to, the Company's 1997 Employee
Stock Purchase Plan, as amended (the "Plan").
In connection therewith, we have examined the Company's Second Amended and
Restated Certificate of Incorporation, the Company's Amended and Restated By-
Laws, and the records, as exhibited to us, of the corporate proceedings of the
Company; a copy of the Plan; and such other documents and records, including a
certificate from the secretary of the Company, as we considered necessary for
purposes of this opinion. In rendering this opinion, we have assumed the
genuineness, without independent investigation, of all signatures on all
documents examined by us, the conformity to original documents of all documents
submitted to us as certified or facsimile copies, and the authenticity of all
such documents.
Based upon the foregoing, we are of the opinion that the Shares, when sold
and paid for in the manner contemplated by the Plan, will have been validly
issued and will be fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Baker & Hostetler LLP
BAKER & HOSTETLER LLP
<PAGE>
EXHIBIT 23(a)
CONSENT OF BAKER & HOSTETLER LLP
Contained in Exhibit 5.
<PAGE>
EXHIBIT 23(b)
CONSENT OF KPMG PEAT MARWICK LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation by reference in the registration statement
(No.:_________________) on Form S-8 of American Dental Partners, Inc. and
subsidiaries of our report dated February 6, 1998, relating to the consolidated
balance sheets of American Dental Partners, Inc. and subsidiaries as of December
31, 1996 and 1997, and the related consolidated statements of operations,
stockholders' equity and cash flows for the years then ended and our report
dated December 29, 1997, relating to the combined balance sheets of The
Orthocare Companies as of December 31, 1996 and September 30, 1997, and the
related combined statements of operations, stockholders' equity and cash flows
for the year ended December 31, 1996 and for the nine months ended September 30,
1997, which reports appear in the Form S-1 of American Dental Partners, Inc.
dated March 23, 1998.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Boston, Massachusetts
April 21, 1998
<PAGE>
EXHIBIT 24
POWERS OF ATTORNEY
For Registration Statement of Form S-8
for 1997 Employee Stock Purchase Plan
The undersigned, each of whom is a director of American Dental Partners,
Inc., a Delaware corporation (the "Company"), hereby constitutes and appoints
Gregory A. Serrao and Ronald M. Levenson, and each of them (with full power to
each of them to act alone), as 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 his capacity as director of the Company, to execute any and
all of the Company's Registration Statements on Form S-8, and any and all
amendments thereto (including post-effective amendments), to register under the
Securities Act of 1933, as amended (the "Securities Act"), any shares of common
stock, par value $0.01, of the Company for sale under, and pursuant to, any and
all of the Company's current or hereafter adopted or approved stock option plans
or other "employee benefit plans" (as such term is defined under Rule 405
promulgated under the Securities Act), as such plans are currently amended or
shall hereafter be amended, including without limitation the Amended and
Restated 1996 Stock Option Plan, the 1996 Time Accelerated Restricted Stock
Option Plan, the Amended and Restated 1996 Directors Stock Option Plan, and the
1997 Employee Stock Purchase Plan, 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, and each
of them, 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 the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
/s/ Dr. Gregory T. Swenson April 20, 1998
- ------------------------------------ ------------------------------
Dr. Gregory T. Swenson Date
/s/ Martin J. Mannion April 20, 1998
- ------------------------------------ ------------------------------
Martin J. Mannion Date
/s/ James T. Kelly April 20, 1998
- ------------------------------------ ------------------------------
James T. Kelly Date
/s/ Derril W. Reeves April 20, 1998
- ------------------------------------ ------------------------------
Derril W. Reeves Date
