<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 27, 1998
REGISTRATION NO. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
INFOCURE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 58-2271614
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1765 THE EXCHANGE, SUITE 450
ATLANTA, GEORGIA 30339
(770) 221-9990
(Address of registrant's principal executive offices, including zip code
and telephone number, including area code)
___________________________
AMERICAN MEDCARE CORPORATION 1996 STOCK OPTION PLAN
INFOCURE CORPORATION 1996 STOCK OPTION PLAN
AND A NON-PLAN STOCK OPTION AGREEMENT
(Full title of the Plans)
FREDERICK L. FINE COPY TO:
CHIEF EXECUTIVE OFFICER OBY T. BREWER III, ESQ.
INFOCURE CORPORATION LAUREN Z. BURNHAM, ESQ.
1765 THE EXCHANGE, SUITE 450 MORRIS, MANNING & MARTIN, L.L.P.
ATLANTA, GEORGIA 30339 1600 ATLANTA FINANCIAL CENTER
(770) 221-9990 3343 PEACHTREE ROAD, N.E.
ATLANTA, GEORGIA 30326
(404) 233-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
___________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) SHARE OFFERING PRICE REGISTRATION FEE(2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share 959,591 shares $4.19 $3,847,698.59 $1,149.77
===================================================================================================================================
</TABLE>
_________________
(1) Represents 129,761 shares of Common Stock reserved for issuance by
Registrant in connection with certain assumed options granted under the
American Medcare Corporation 1996 Stock Option Plan (the "AMC Plan"),
800,000 shares of Common Stock reserved for issuance by Registrant under
the InfoCure Corporation 1996 Stock Option Plan (the "1996 Plan") and
29,830 shares of Common Stock reserved for issuance by Registrant in
connection with an assumed non-plan stock option originally granted by
American Medcare Corporation (the "Non-Plan Option"). (The AMC Plan and
the 1996 Plan are collectively referred to herein as the "Plans"). An
indeterminate amount of Plan interests are also covered by this
Registration Statement.
(2) Calculated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended. Accordingly, the price per share of the Common Stock offered
hereunder is based on (i) 929,761 shares of Common Stock subject to
options granted under the Plans at a weighted average exercise price of
$4.14 per share and (ii) 29,830 shares of Common Stock subject to the Non-
Plan Option at an exercise price of $1.67 per share.
<PAGE>
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 and/or directors of InfoCure Corporation (the
"Company") as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with the instructions of Part I
of Form S-8, such documents will not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute the
prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Prospectus dated July 10, 1997 filed pursuant to Rule
424(b) under the Securities Act, which contains audited financial statements for
the Company's latest fiscal year for which such statements have been filed.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
July 31, 1997 and October 31, 1997 and all of the Company's Current Reports on
Form 8-K filed with the Commission after July 10, 1997.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated March 12, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment indicating that all securities offered under the Plans have
been sold or deregistering all securities then remaining unsold thereunder,
shall be deemed to be incorporated herein by reference and shall be deemed to be
a part hereof from the date of filing thereof.
Any statement contained in any document incorporated or deemed to be
incorporated by reference into the Prospectus shall be deemed to be modified or
superseded for purposes thereof to the extent that a statement contained therein
or in any other subsequently filed document that is also incorporated or deemed
to be incorporated therein by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall now be deemed, accepted so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
A description of the Company's Common Stock is incorporated by
reference under Item 3.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock offered
hereby were passed upon by Morris, Manning & Martin, L.L.P., Atlanta, Georgia.
Members of Morris, Manning & Martin, L.L.P. hold an aggregate of 49,100 shares
of Common Stock.
-2-
<PAGE>
Item 6. Indemnification of Directors and Officers.
Pursuant to the Company's Certificate of Incorporation and Bylaws, officers
and directors of the Company shall be indemnified by the Company to the fullest
extent allowed under Delaware law for claims brought against them in their
capacities as officers or directors. Indemnification is not allowed if the
officer or director does not act in good faith and in a manner reasonably
believed to be in the best interests of the Company, or if the officer or
director had no reasonable cause to believe his conduct was lawful.
Accordingly, indemnification may occur for liabilities arising under the
Securities Act. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted for directors, officers and controlling persons
of the Company pursuant to the foregoing provisions or otherwise, the Company
has been advised that in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into this
Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------------- -----------------------------------------------------------------------------
<C> <S>
4.1 Certificate of Incorporation of InfoCure Corporation, as
amended (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form SB-2, Registration
Number 333-18923).
4.2 Bylaws of InfoCure Corporation (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form
SB-2, Registration Number 333-18923)
4.3 Certificate and Statement of Issuance, Designations,
Preferences and Rights of Convertible Redeemable Preferred
Stock, Series A
5.1 Opinion of Morris, Manning & Martin, L.L.P. as to the
legality of the securities being registered
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Morris, Manning & Martin, L.L.P. (included in
Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
</TABLE>
-3-
<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;
(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 registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
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 the 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
Securities Exchange Act of 1934 (the "Exchange Act") (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to 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 thereof.
(c) 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 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.
-4-
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act, the undersigned 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 this the 26th day of
March, 1998.
INFOCURE CORPORATION
By: /s/ Frederick L. Fine
-----------------------------------------
Frederick L. Fine
Chief Executive Officer and President
-5-
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signatures appears
below constitutes and appoints Frederick L. Fine and Richard E. Perlman, and
each of them, 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 any and all capacities, to sign a Registration Statement relating to
the registration of shares of common stock on Form S-8 and to sign any and all
amendments (including post effective amendments) to the Registration Statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the 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 required or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute, could lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<S> <C> <C>
/s/ Frederick L. Fine Chief Executive Officer, President March 26, 1998
- -------------------------- and Director
Frederick L. Fine
(Principal Executive Officer)
/s/ Richard E. Perlman Chairman of the Board, Chief Financial March 26, 1998
- -------------------------- Officer and Treasurer (Principal Financial
Richard E. Perlman
and Accounting Officer)
/s/ James K. Price Executive Vice President, Secretary March 26, 1998
- --------------------------- and Director
James K. Price
/s/ Michael E. Warren Vice President and Director March 26, 1998
- ---------------------------
Michael E. Warren
/s/ James D. Elliot Director March 26, 1998
- ---------------------------
James D. Elliot
s/ Ronald M. Vagle Director March 26, 1998
--------------------------
Ronald M. Vagle
/s/ Raymond H. Welsh Director March 26, 1998
- ---------------------------
Raymond H. Welsh
</TABLE>
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<PAGE>
EXHIBIT 4.3
CERTIFICATE AND STATEMENT OF ISSUANCE, DESIGNATIONS,
PREFERENCES AND RIGHTS OF CONVERTIBLE
REDEEMABLE PREFERRED STOCK, SERIES A,
OF
INFOCURE CORPORATION
InfoCure Corporation, a corporation organized and existing under the
Delaware General Corporation Law,
DOES HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of Directors by
the Certificate of Incorporation of said corporation, and pursuant to the
provisions of Section 151 of the Delaware General Corporation Law, the Board of
Directors adopted a resolution providing for the issuance of one series of
preferred stock of said corporation and fixing the designations, voting powers,
preferences, and relative, participating, optional and other special rights, and
qualifications, limitations or restrictions thereof, which resolution setting
forth such matters (hereinafter referred to as the "Designation") is as follows:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of InfoCure Corporation (the "Company") by Article Fourth of the Certificate of
Incorporation of the Company, the Board of Directors of the Company (i) does
hereby provide for the issuance of one series of preferred stock, $.001 par
value per share (the "Original Price"), of the Company to be designated
"Convertible Redeemable Preferred Stock, Series A" (the "Series A Stock") and
(ii) does hereby fix and herein state and express the designations, voting
powers, preferences, and relative, participating, optional and other special
rights, and qualifications, limitations or restrictions thereon, of the Series A
Stock of the Company, as follows:
1. Rank. All shares of Series A Stock shall have preferences, limitations
and relative rights identical with each other; and all shares of Series A Stock
shall have such preferences and relative rights expressly provided in this
Designation.
2. Designation of the Number of Shares. The Series A Stock shall consist
of 850,000 shares, shall be entitled to dividends when, as and if declared
pursuant to Paragraph 3, shall be entitled to a preference in liquidation as
-----------
provided in Paragraph 4, shall be redeemable as provided in Paragraph 5, shall
----------- -----------
be convertible as provided in Paragraph 6, and shall be entitled to vote as
-----------
provided in Paragraph 7.
-----------
<PAGE>
3. Dividends. If and whenever the Company shall declare and pay a dividend
or other distribution in respect of its Common Stock (as hereinafter defined),
the Company shall concurrently therewith declare and pay a dividend to the
holders of Series A Stock in an amount per share equal to the amount per share
of the dividend in respect of the Common Stock multiplied by the number of
shares of Common Stock into which each share of Series A Stock is then
convertible. The Series A Stock shall further be entitled to such dividend
rights as are provided pursuant to Paragraph 5(a) of this Designation.
4. Liquidation Preference.
(a) In the event of a dissolution, liquidation or winding-up of the Company
(whether voluntary or involuntary), after payment or provision for payment of
debts, but before any distribution to the holders of Common Stock or any other
class or series of the Company's capital stock then outstanding (collectively,
the "Common Stock"), the holders of the Series A Stock then outstanding shall be
entitled to receive the following amounts:
The holders of the Series A Stock shall receive an amount per share
equal to the "Preferential Amount" (as hereinafter defined); provided
however, that (i) if the assets to be distributed to the holders of the
Series A Stock shall be insufficient to permit the payment to such
shareholders of the full Preferential Amount, then all of the assets of the
Company to be distributed shall be distributed ratably to the holders of
the Series A Stock; and (ii) and whenever the Company shall make a
distribution in the event of any dissolution, liquidation or winding-up of
the Company (whether voluntary or involuntary) to the holders of Common
Stock, to the extent such distribution then or theretofore made (after
taking into account all distributions that would be necessary to satisfy
the Preferential Amounts due to holders of the Series A Stock) exceeds or
would exceed an aggregate amount per share of Common Stock equal to the
Preferential Amount divided by the number of shares of Common Stock into
which each share of Series A Stock is then convertible, the Company, in
lieu of distributing the Preferential Amount to the holders of Series A
Stock, shall concurrently with the making of such distribution to the
holders of Common Stock make a distribution in an amount per share to the
holders of Series A Stock equal to the amount per share distributed to the
holders of Common Stock multiplied by the number of shares of Common Stock
into which each share of Series A Stock is then convertible, to the end
that the holders of Series A Stock Preferred Stock, on an "as-converted"
basis, shall share equally with the holders of Common Stock in such greater
distribution. As used herein, the term "Preferential Amount" means an
amount initially equal to $10.00 per share of Series A Stock plus
accumulated but unpaid dividends thereon, subject to adjustment as provided
herein (including any adjustment pursuant to Paragraph 8 in respect of a
-----------
Capital Return Event).
(b) A consolidation, merger or reorganization of the Company with or into
any other corporation or corporations, or a sale, or a series of related sales,
of all or substantially all of the assets of the corporation (other than a
transaction in which the Company is the surviving corporation, and either (i)
the Common Stock is not exchanged, converted or reclassified or (ii) the Common
Stock is reclassified in a manner contemplated by the
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<PAGE>
parenthetical clause within Paragraph 6(d)(i)(D) of this Designation without
effecting any change in the beneficial ownership of the Company) shall be deemed
to be a liquidation, dissolution or winding-up for the purpose of this Paragraph
---------
4 as to any or all shares of Series A Stock in respect of which the holder or
- -
holders thereof notify the Company in writing, within 30 days of the effective
date of such transaction, of such holder(s)' election to apply this Paragraph
---------
4(b). The provisions of Paragraph 6(e) shall not apply to any shares of Series
- ---- --------------
A Stock in respect of which the holders have elected to apply this Paragraph
---------
4(b).
- ----
5. Redemption.
Except to the extent hereinafter provided, no holder of Series A Stock
shall have the right solely by virtue of holding such stock to require
redemption of such shares nor, except to the extent hereinafter provided, shall
the Company have the right to call or require redemption of any shares of Series
A Stock.
(a) The Company shall on the "Mandatory Redemption Date" (as hereinafter
defined) redeem all outstanding shares of Series A Stock ("Mandatory
Redemption"), out of funds legally available therefor, at a per share redemption
price equal to the Preferential Amount. As used herein, the term "Mandatory
Redemption Date" means the fifth anniversary of the date of original issuance of
the Series A Stock ("the "Original issue Date"). In the event the Company does
not have sufficient funds available to redeem all shares of Series A Stock on
the Mandatory Redemption Date, all outstanding shares of Series A Stock shall
from and after such date accrue dividends, payable not less frequently than
quarterly, in cash or in kind at the option of each holder of such outstanding
shares, at a per annum rate of eighteen percent (18%). Such dividends shall be
cumulative until paid.
(b) Each holder of Series Stock may, at the election of such holder,
require the Company to redeem all or any part of the shares of Series A Stock
held by such person (an "Optional Redemption") at any time on or after an
"Optional Redemption Event Date" at a per share redemption price equal to the
Preferential Amount. As used herein, the term "Optional Redemption Event Date"
means the first to occur of (i) the first date as of which a "Change in Control"
(as hereinafter defined) has taken place in respect of the Company or (ii) the
first date on or after the third anniversary of the Original Issue Date as of
which the Company is under no restriction pursuant to a bona fide material loan
agreement with one or more commercial banks acting as lender or lenders
thereunder, which loan agreement is binding upon the Company and prohibits the
Company from redeeming the Series A Stock. As used herein, a "Change in
Control" will be deemed to have taken place in respect of the Company if (x)
during any one-year period 50% or more of the voting stock of the Company held
by affiliates of the Company (as identified in the Company's proxy materials
filed under the Securities Exchange Act of 1934, as amended) does not continue
to be held by such affiliates, and (y) at any time within one year of such
change in the affiliates' stockholdings a majority of persons serving as
directors of the Company cease to be directors, or the Company's Board of
Directors is expanded in such a manner as to cause directors in office at the
beginning of any such one-year period to cease to constitute a majority of the
Board of Directors. The Company shall promptly notify then record holders of
Series A Stock in writing upon the occurrence of any Optional Redemption Event
Date. In addition, the Company shall provide to the Placement Agent engaged by
the Company
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<PAGE>
in connection with the original issuance and sale of the Series A Stock (the
"Placement Agent"), a calculation of the Preferential Amount which holders of
the Series A Stock would be entitled to receive upon any such redemption.
(c) Any holder of Series A Stock desiring to exercise its right of
redemption under Paragraph 5(b) shall give written notice (the "Redemption
--------------
Notice") to the Company's corporate secretary at the Company's principal
executive offices setting forth the intent of the redeeming party to exercise
the right of redemption at least thirty (30) days before the date fixed herein
or otherwise specified in such notice for the redemption payment (the
"Redemption Date") and further specifying in such Redemption Notice the number
of shares to be redeemed and the Redemption Date.
(d) On or before each Redemption Date (regardless of whether such
redemption is made under Paragraph 5(a) or 5(b) above), each holder of shares of
Series A Stock to be redeemed shall surrender the certificate or certificates
representing such shares to the Company, in the manner and at the price
designated in the Redemption Notice, and thereupon the redemption price for such
shares shall be payable to the order of the person whose name appears on such
certificate or certificates as the owner thereof, and each surrendered
certificate shall be cancelled and retired. In the event that less than all of
the shares represented by such certificate are redeemed, a new certificate
representing the unredeemed shares shall be issued to the holder of such shares.
In the event any holder of shares of Series A Stock shall fail to surrender a
certificate or certificates representing such shares to the Company, then such
certificate or certificates shall thereafter represent only the right of such
holder to receive the price designated in the Redemption Notice, and such price
shall be paid only upon receipt by the Company of such certificate or
certificates, or customary documentation providing for indemnification of the
Company in respect of any lost certificates.
6. Conversion.
(a) Each share of Series A Stock shall be convertible into Common Stock, at
the then applicable Conversion Price, at any time prior to 12:00 noon, Atlanta,
Georgia time, on the Redemption Date in respect of such share under Paragraph 5
-----------
above, and from time to time, at the option of the holder thereof. Before any
holder of Series A Stock shall be entitled to convert such stock into shares of
Common Stock, the holder shall surrender the certificate or certificates
therefor, duly endorsed, to the Company and shall give written notice, duly
executed, to the Company of such election to convert the same and shall state
the number of shares of Series A Stock being converted. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date of the surrender of the shares of Series A Stock to be converted, and the
holder of such shares shall be treated for all purposes as the record holder of
such shares of Common Stock on such date. The Company shall remain obligated
for any and all dividends accumulated through the date of conversion. Each
share of Series A Stock shall automatically be converted into shares of Common
Stock at the then effective Conversion Price upon the closing of a firm
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering the offer and sale of
shares of the Company's Common Stock at a price per share of Common Stock, prior
to underwriting commissions and offering expenses, of not less than $10.00 per
share (appropriately adjusted for
-4-
<PAGE>
any stock split, dividend, combination, recapitalization or the like) and a net
offering price (after deduction of underwriter commissions and offering
expenses) of not less than $20,000,000. In the event of the automatic
conversion of the Series A Stock upon a public offering as aforesaid, the
person(s) entitled to receive the Common Stock issuable upon such conversion of
Series A Stock shall not be deemed to have converted such Series A Stock until
the closing of such sale of securities.
(b) The price at which shares of Common Stock shall be deliverable upon
conversion of the Series A Stock shall be called the "Conversion Price," as
determined in accordance with this Paragraph 6. Each share of Series A Stock
-----------
shall be convertible into such number of fully paid and non-assessable shares of
Common Stock as is determined by dividing the Original Price of each share of
Series A Stock by the Conversion Price applicable to such series in effect at
the time of conversion. The initial Conversion Price for each share of Series A
Stock shall be $8.50, subject to adjustment as set forth at Paragraph 5(d)
--------------
below.
(c) No fractional shares of Common Stock shall be issued upon conversion of
the Series A Stock, and in lieu of any fractional shares to which the holder
would otherwise be entitled, the Company shall pay cash equal to such fraction
multiplied by the applicable Conversion Price.
(d) The initial Conversion Price shall be subject to adjustment at any time
or from time to time as provided herein:
(i) In case the Company shall at any time or from time to time after the
Original Issue Date (A) pay a dividend with respect to its Common Stock in
shares of its capital stock (whether shares of Common Stock or of capital stock
of any other class), (B) subdivide its outstanding shares of Common Stock, (C)
combine its outstanding shares of Common Stock into a smaller number of shares,
or (D) issue any shares of its capital stock by reclassification of its Common
Stock (including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the conversion
privilege and the Conversion Price in effect immediately prior to such action
shall be proportionately adjusted so that the holder of any shares of Series A
Stock thereafter surrendered for conversion shall be entitled to receive the
number and kind of shares of capital stock of the Company which it would have
owned or have been entitled to receive immediately following the happening of
any of the events described above, had such Series A Stock been converted
immediately prior thereto. An adjustment made pursuant to this clause (d)(i)
shall become effective retroactively immediately after the record date in the
case of a dividend with respect to the Common Stock in shares of capital stock
and shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this clause (d)(i), the holder of any shares of Series A Stock
thereafter surrendered for conversion shall become entitled to receive shares of
two or more classes of capital stock of the Company, the Board of Directors and
holders of a majority of outstanding shares of Series A Stock shall determine
the allocation of the adjusted Conversion Price between or among shares of such
classes of capital stock, or in the event they are unable to determine such
allocation within 30 days following such record date or effective date, such
-5-
<PAGE>
determination will be made by an independent accounting firm (other than the
Company's usual auditing firm) selected by the Board of Directors.
(ii) In case the Company shall distribute to all holders of its Common
Stock evidences of its indebtedness or assets (excluding any dividend payable
solely in cash), then in each such case the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the date of such distribution by a
fraction, (A) the numerator of which shall be the current Market Price per share
(determined as provided in Paragraph 6(d)(iii) below) of the Common Stock on the
-------------------
record date for the distribution less the then fair market value (as determined
by agreement between the Company and holders of Series A Stock outstanding at
the time of such determination representing more than 50% of the number of
shares of Common Stock into which each share of Series A Stock is convertible)
of the portion of the assets or evidences of indebtedness or subscription
rights, warrants or other securities so distributed applicable to one share of
Common Stock, and (B) the denominator of which shall be such current Market
Price per share of the Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(iii) For the purpose of any computation under this Paragraph 6(d), the
--------------
current "Market Price" per share of Common Stock on any date (the "Market
Price") shall be deemed to be the closing price of the Common Stock on the
principal national securities exchange on which the Common Stock is then listed
or admitted to trading or the NASDAQ National Market System, if the Common Stock
is then listed or admitted to trading on any national securities exchange or in
such market system. The closing price shall be the last reported sale price,
or, in case no such sale takes place on such day, the average of the closing bid
and asked price, as reported by said exchange or market system. If the Common
Stock is not then so listed on a national securities exchange or in such market
system, the Market Price shall be deemed to be the mean between the
representative closing bid and asked prices of the Common Stock in the over-the-
counter market as reported by the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or, if the Common Stock is not then quoted
by NASDAQ, as furnished by any member of the National Association of Securities
Dealers, Inc. ("NASD") selected from time to time by the Company for that
purpose. If no member of NASD furnishes quotes with respect to the Common Stock
of the Company, the Market Price shall be determined by agreement between the
Company and holders of Series A Stock outstanding at the time of such
determination representing more than 50% of the number of shares of Common Stock
into which each share of Series A Stock is convertible.
(iv) In the event the Company at any time after the Original Issue Date
sells any shares of its Common Stock or any securities convertible into its
Common Stock and the net price received by the Company from the sale of such
Common Stock or securities plus any additional amounts received on the
conversion of such securities into Common Stock is less than the then-current
Conversion Price, or in the event of the exercise of any options or warrants
(other than any options or warrants previously deemed to have been exercised
pursuant to Paragraph 6(d)(ix) below) to purchase its Common Stock for a net
------------------
price less than the current Conversion Price, the Conversion Price shall
thereafter be reduced, as of the opening of business on the date of such issue
or sale, (A) to a price equal to the per share price received by the
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<PAGE>
Company in connection with any such sale or disposition that occurs (or is
deemed to occur) on or prior to the first anniversary of the Original Issue
Date; and (B) in the case of all other sales or dispositions, to a price
determined by multiplying the Conversion Price in effect prior to such issuance
by a fraction, (I) the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issue or sale plus the number
of shares of Common Stock that the aggregate consideration received by the
Company for the total number of additional shares of Common Stock so issued
would purchase at such Conversion Price, and (II) the denominator of which shall
be the number of shares of Common Stock outstanding immediately prior to such
issue or sale plus the number of such additional shares of Common Stock so
issued. Notwithstanding the foregoing, the Conversion Price will not be reduced
under this clause (iv) in respect of issuance of (X) shares issued pursuant to
the Company's Employee Stock Option Plans, Employee Stock Purchase Plans or
401(k) Benefit Plans in existence on the Original Issue Date, or any predecessor
plans in respect of such plans; (Y) shares issued for any valid corporate
purpose, provided that the aggregate of all shares issued under these provisions
(Y) and (X) shall not in the aggregate exceed 1,147,330 shares of Common Stock,
prior to adjustment (the "Minimum Share Amount"); and (Z) shares issues (or
issuable at any later time) as consideration for bona fide business acquisitions
approved by the Company's Board of Directors.
(v) In the event the "Average Market Price" of a share of Common Stock is
lower than $8.50 on the first anniversary of the Original Issue Date, the
Conversion Price in effect from after such anniversary shall be reduced to such
Average Market Price on such date. As used herein, the term "Average Market
Price" means the arithmetic average of the Market Prices of the Common Stock as
determined pursuant to clause (iii) above, for the trading days within the
thirty-day period immediately preceding (and if such anniversary date is a
trading date, ending upon) such first anniversary date; provided however, that,
in the event a Return of Capital Event (as hereinafter defined) has taken place
and the Conversion Price (as calculated according to this clause (v)), when
applicable to the shares of Series A Stock remaining on the first anniversary of
the Original Issue Date, would cause the Company to issue an aggregate number of
shares of Common Stock exceeding the Maximum Share Amount, in connection with
the conversion of the Series A Stock, then the Conversion Price shall be
increased to a price, not to exceed $7.41 per share, that would result in the
Company issuing no more than the Maximum Share Amount in connection with the
conversion, in the aggregate, of all shares of the Series A Stock; and provided
further, that the Conversion Price shall never be set at less than $6.75
pursuant to this clause (v).
(vi) No adjustment in the Conversion Price shall be required unless such
adjustment would require a decrease of at least one-tenth of a cent ($.001) per
share in such price (and no adjustment shall increase the Conversion Price
except in the case of reverse stock splits or other transactions involving a
combination of shares of common stock); provided, that any adjustments which by
reason of this clause (d)(vi) are not required to be made shall be carried
forward and then taken into account in any subsequent adjustment; provided,
further, that adjustment in the Conversion Price shall be required and made in
accordance with the provisions of this Designation, other than this clause
(d)(vi), not later than such time as may be required in order to preserve the
tax-free nature of a distribution (within the meaning of Section 305 of the
United States Internal Revenue Code of 1986, as amended) to the holders of
Series A Stock
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<PAGE>
and/or Common Stock. No adjustment shall be made in the Conversion Price
pursuant to clause (d)(iv) or d(v) unless such adjustment will result in a
Conversion Price, after giving effect to such adjustment, that is lower than the
Conversion Price in effect prior to giving effect to such adjustment; and in the
event adjustments are made in the Conversion Price separately under clauses (iv)
and (v) above, the lowest such price in effect at any given time shall be the
applicable Conversion Price in effect at such time.
(vii) Anything in this Paragraph 6 to the contrary notwithstanding, the
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Company shall be entitled (but shall not be required) to make such reductions in
the Conversion Price, in addition to those required by this Paragraph 6, as it,
-----------
in its discretion, shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights to purchase stock or
securities or distribution of securities convertible into or exchangeable for
stock hereafter made by the Company to its stockholders shall not be taxable.
(viii) In case of the issuance of additional shares of Common Stock for
cash, the consideration received by the Company therefor shall be deemed to be
the net cash proceeds received by the Company for such shares after deducting
any commissions or other expenses paid or incurred by the Company for any
underwriting of, or otherwise in connection with, the issuance of such shares.
(ix) In case of the issuance or grant by the Company in any manner of (A)
securities that are convertible into or exchangeable for Common Stock or (B) any
rights or options to purchase Common Stock or securities convertible into or
exchangeable for Common Stock (including, for purposes hereof, any earn-out
rights or similar rights, but excluding for all purposes hereunder any
securities, the issuance of which does not give rise to any adjustment in the
Conversion Price pursuant to Paragraph 6(d)(iv)), the Company shall be deemed to
------------------
have issued the maximum number of shares of Common Stock deliverable upon the
exercise of such rights or options, as the case may be, for, (X) in the case of
an issue or grant of any such rights or options to purchase shares of Common
Stock or securities convertible into or exchangeable for Common Stock, a
consideration equal to the sum of the total amount, if any, received by the
Company as consideration for the issue or grant of such rights or options, plus
the minimum aggregate amount of additional consideration, if any, payable to the
Company upon the exercise of such rights or options, plus, in the case of rights
or options to purchase securities convertible into or exchange for Common Stock,
the minimum aggregate amount of additional consideration, if any, payable to the
Company upon the conversion or exchange of such securities at the time such
securities first become convertible or exchangeable, or (Y) in the case of an
issuance of securities convertible into or exchangeable for Common Stock
otherwise than where such securities are issuable upon the exercise of any such
rights or options, the total amount, if any, received by the Company as
consideration for the issue of such securities plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon the conversion
or exchange of such securities at the time such securities first become
convertible or exchangeable, or, (Z) in the case of an issuance or grant of such
rights or options to purchase Common Stock where no minimum price is specified
and such shares are to be delivered at an option price related to the Market
Price of the subject shares, a consideration equal to the sum of the total
amount, if any, received by the company as consideration for the issue or grant
of such rights or options plus an aggregate option price bearing the same
relation to the Market Price of
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<PAGE>
the subject shares, at the time such rights or options were granted, provided,
that, as to such rights or options, such further adjustment as shall be
necessary on the basis of the actual option price at the time of exercise shall
be made at such time if the actual option price is less than the aforesaid
assumed option price. No further adjustments of the Conversion Price shall be
made as a result of the actual issue of shares of Common Stock of the Company
referred to in this clause (d)(ix). If any such rights, options or convertible
or exchangeable securities shall expire or be surrendered without having been
exercised, converted or exchanged, the Conversion Price adjusted upon the
issuance of such rights, options or convertible or exchangeable securities shall
be readjusted to the Conversion Price that would have been in effect had an
adjustment been made on the basis that only the shares of Common Stock actually
issued, if any, on the exercise of such rights or options or the conversion or
exchange of such securities were issued or sold for the consideration actually
received by the Company upon such exercise, conversion or exchange, plus the
consideration, if any, actually received by the Company for the granting of all
such rights or options that were exercised or the issuance of the convertible or
exchangeable securities that were converted or exchanged. In case the
consideration received or receivable by the Company for the issue, grant or sale
of any of the securities referred to above shall be a consideration other than
cash or a consideration a part of which shall be other than cash, the amount of
the consideration other than cash received or receivable by the Company shall be
deemed to be the value of such consideration as determined in good faith by the
Board of Directors of the Company and a majority of the holders of Series A
Stock.
(e) Subject to the provisions of Paragraph 4(b), in case of any capital
--------------
reorganization or of any reclassification of the Common Stock of the Company, or
in case of the consolidation of the Company with, or the merger of the Company
into, any other corporation, or of the sale of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation, the
Series A Stock shall after such capital reorganization, reclassification of
Common Stock, consolidation, merger or sale be convertible into the number of
shares of stock or other securities or property of the Company, or of the
corporation resulting from such consolidation or surviving such merger or to
which such sale shall be made, as the case may be, to which the holder of Common
Stock issuable (at the time of such capital reorganization, reclassification of
Common Stock, consolidation, merger or sale) upon exercise of the conversion
privilege of the Series A Stock would have been entitled upon such capital
reorganization, reclassification of Common Stock, consolidation, merger or sale
had the conversion privilege of the Series A Stock been exercised prior thereto,
and in any case, if necessary, the provisions set forth in this Paragraph 6
-----------
regarding the rights and interest thereafter of the holders of Series A Stock
shall be appropriately adjusted so as to be applicable, as nearly as may
reasonably be, to any shares of stock or other securities or property thereafter
deliverable on the exercise of the conversion privilege of the Series A Stock.
The operation of this Paragraph 6(e) shall not limit any rights of holders of
--------------
Series A Stock under Paragraph 5(b) hereof.
--------------
(f) If any date shall be fixed by the Company as the date as of which
holders of Common Stock (i) shall be entitled to receive any dividend or any
distribution upon the Common Stock of the Company, (ii) shall be offered any
subscription or other rights, or (iii) shall be entitled to participate in any
capital reorganization, reclassification of Common Stock, consolidation, merger
or sale, described in Paragraph 6(e) above, or in any liquidation,
--------------
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<PAGE>
dissolution or winding-up of the Company, the Company shall cause notice thereof
(specifying such date) to be mailed to the holders of the Series A Stock and
the Placement Agent, at the last address provided by such holder for purposes of
receiving notice, at least thirty (30) days prior to the date of consummation of
the transaction described in the notice.
(g) The issuance of stock certificates on conversion of the Series A Stock
shall be made without charge to the exercising holder of Series A Stock for any
tax for the issuance thereof. The Company shall not, however, be required to
pay any tax that may be payable on any transfer involved in the issue and
delivery of stock in any name other than that of the registered holders of
Series A Stock, and the Company shall not be required to issue or deliver any
such stock certificate unless and until the person or persons requesting the
issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
(h) The Company shall at all times reserve and keep available out of its
authorized but unissued stock for the purpose of effecting the conversion of the
Series A Stock, such number of its duly authorized shares of Common Stock as
shall from time to time be sufficient to effect the conversion of the Series A
Stock; and if at any time the number of authorized but unissued shares of Common
Stock shall not be sufficient to effect the conversion of the Series A Stock at
the Conversion Price then in effect, the Company will take such corporate action
as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for this purpose.
(i) The Company covenants that all shares of Common Stock that may be
issued upon conversion of the Series A Stock will upon issue be fully paid and
nonassessable and free of all taxes, liens and charges for the issue thereof.
(j) In each case of any adjustment or readjustment of the Conversion Price
for the number of shares of Common Stock or other securities issuable upon
conversion of the Series A Stock, the Company shall compute such adjustment or
readjustment in accordance herewith and prepare a certificate showing such
adjustment or readjustment and shall mail such certificate, by first class mail,
postage prepaid, to each registered holder of Series A Stock at the address last
provided by such holder for purposes of receiving notice. The certificate shall
set forth such adjustment or readjustment showing in detail the facts upon which
such adjustment or readjustment is based on including a statement of:
(i) The consideration received or to be received by the Company for any
additional shares of Common Stock issued or sold or deemed to have been
issued or sold;
(ii) The adjusted or readjusted Conversion Price for the Series A Stock;
and
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<PAGE>
(iii) The number of additional shares of Common Stock and the type and
amount, if any, of other property which would be received upon conversion
of the adjusted or readjusted Conversion Price for the Series A Stock.
(k) The Company will not, by amendment of its Articles of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but the Company will at all times and in
good faith assist in the carrying out of all of the provisions of this Paragraph
---------
6 and in the taking of all such actions as may be necessary and appropriate to
- -
protect the conversion rights of the holders of Series A Stock against
impairment.
(l) Successive adjustments will be made pursuant to Paragraph 6(d)(iv) for
each transaction of the type described in such provision; and for each such
transaction, appropriate adjustments shall also be made in the specified prices
set forth in clause (v) and clause (vi) of Paragraph 6(d) (e.g., "$8.50,"
"$6.75," etc.) to fully reflect and take into account the economic effect of
such transaction as to the Common Stock.
7. Voting.
Except as otherwise expressly provided hereafter or as required by law,
the holder of each share of Series A Stock shall be entitled to vote on all
matters and shall be entitled to such number of votes as is equal to the largest
number of full shares of Common Stock into which each share of Series A Stock
could be converted, pursuant to and as determined under Paragraph 6 herein, on
-----------
the record date for the determination of shareholders entitled to vote on such
matters or, if no record date is established, on the date such vote is taken or
any written consent of shareholders is solicited. Except as required by law or
otherwise expressly provided herein, shares of Series A Stock and shares of
Common Stock shall be voted together as a single class and not as separate
classes. The affirmative vote of the holders of at least 66-2/3% of the
outstanding Series A Stock, voting separately as a class, shall be necessary in
order for the Company to effect any change in (i) any scheduled redemption dates
set forth in this Designation, the number of shares to be redeemed on such dates
or the redemption price payable thereon, (ii) the amount payable to the holders
of Series A Stock upon the liquidation, dissolution or winding up of the Company
or the relative priority thereof, (iii) the conversion ratio or the Conversion
Price set forth in this Designation, (iv) the creation or issuance of any shares
of a class having any preference in liquidation to the Series a Stock, or (v)
the provisions of this Paragraph 7. The affirmative vote of the holders of at
-----------
least a majority of the outstanding Series A Stock, voting separately as a
class, shall be necessary in order for the Company to effect any other change in
the rights, preferences, powers or privileges of the Series A Stock.
8. Return of Capital.
As provided in the Subscription Agreements in respect of the issuance to
and purchase by the original holders of the Series A Stock, if a Capital Return
Event takes place, then in such event the Company will be required pursuant to
such Subscription Agreements to return a portion of the original purchase and
subscription price of the Series A Stock, all in accordance
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<PAGE>
with the terms of such Subscription Agreements, and the Preferential Amount per
share shall be reduced in a per share amount equal to the amount of capital so
returned in respect of each such share of Series A Stock. A "Capital Return
Event" shall take place for purposes hereof in the event that on or before June
30, 1998, the Stockholders of the Company have not duly approved and ratified
the issuance by the Company of the Series A Stock.
[Signature page follows.]
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<PAGE>
IN WITNESS WHEREOF, InfoCure Corporation has caused this Statement to be
signed by Frederick L. Fine, its President and Chief Executive Officer, and its
corporate seal to be hereto affixed and attested by James K. Price, its
Secretary, this 6th day f February, 1998.
INFOCURE CORPORATION
(CORPORATE SEAL)
By: /s/ Frederick L. Fine
---------------------
Frederick L. Fine
President and Chief
Executive Officer
ATTEST:
/s/ James K. Price
- ----------------------------------------------
James K. Price, Secretary
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<PAGE>
EXHIBIT 5.1
March 27, 1998
InfoCure Corporation
1765 The Exchange, Suite 450
Atlanta, Georgia 30339
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for InfoCure Corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended, pursuant to a Registration Statement on Form S-8, of a
proposed offering of (i) 129,761 shares of Common Stock, par value $.001 per
share reserved for issuance by the Company in connection with certain assumed
options granted under the American Medcare Corporation 1996 Stock Option Plan
(the "AMC Plan"), (ii) 800,000 shares of Common Stock reserved for issuance by
the Company under the InfoCure Corporation 1996 Stock Option Plan (the "1996
Plan"), and (iii) 29,830 shares of Common Stock reserved for issuance in
connection with an assumed non-plan stock option originally granted by American
Medcare Corporation (the "Non-Plan Option"). (The AMC Plan and the 1996 Plan
are collectively referred to herein as the "Plans").
We have examined and are familiar with the originals or copies certified or
otherwise identified to our satisfaction of such documents, corporate records,
and other instruments relating to the incorporation of the Company and to the
authorization and issuance of shares of the Company's Common Stock under the
Plans and the Non-Plan Option as would be necessary and advisable for purposes
of rendering this opinion. Based upon and subject to the foregoing, we are of
the opinion that the shares of the Company's Common Stock have been duly
authorized and, when issued as contemplated by the Plans and the Non-Plan
Option, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Company's registration statement on Form S-8.
Very truly yours,
MORRIS, MANNING & MARTIN, L.L.P.
/s/ Morris, Manning & Martin, L.L.P.
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<PAGE>
EXHIBIT 23.1
[CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS]
We hereby consent, as independent public accountants, to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated June 19, 1997, on the financial statements of InfoCure Corporation
(and to all references to our Firm) included in InfoCure Corporation's
Registration Statement on Form SB-2 (Registration No. 333-18923).
BDO SEIDMAN, LLP
/s/ BDO Seidman, LLP
Atlanta, Georgia
March 27, 1998
