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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 8, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
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 Identification Number)
Incorporation or Organization)
1765 THE EXCHANGE, SUITE 200
ATLANTA, GEORGIA 30339
(770) 221-9990
(Address, Including Zip Code and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
JAMES A. COCHRAN Copy to:
SENIOR VICE PRESIDENT--FINANCE JOHN J. KELLEY III
AND CHIEF FINANCIAL OFFICER KING & SPALDING
1765 THE EXCHANGE, SUITE 200 191 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30339 ATLANTA, GEORGIA 30303-1763
TELEPHONE: (770) 221-9990 TELEPHONE: (404) 572-4600
(Name, Address, Including Zip Code, and Telephone Number of Agent for Service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered in this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SHARES AMOUNT TO BE MAXIMUM AGGREGATE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value 327,660 Shares $3.734 $1,223,482.44 $323.00
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(1) Estimated solely for the purpose of calculating the registration fee,
based on the average of the high and low prices for the Company's
common stock as reported on the Nasdaq National Market on September 7,
2000, in accordance with Rule 457(c) under the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THE PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED SEPTEMBER 8, 2000
327,660 SHARES
INFOCURE CORPORATION
COMMON STOCK
We are a leading national provider of information management technology
to targeted healthcare specialties. These shares of common stock are being
offered by the selling stockholders identified in this prospectus. We issued, or
will issue, the shares to the selling stockholders in connection with
acquisitions of companies previously owned by the selling stockholders.
The selling stockholders may offer their shares of common stock through
public or private transactions, in the over-the-counter markets, on any
exchanges on which our common stock is traded at the time of sale, at prevailing
market prices or at privately negotiated prices. The shares may be sold directly
or through agents or broker-dealers acting as principal or agent, or in block
trades or through one or more underwriters on a firm commitment or best efforts
basis. The selling stockholders may engage underwriters, brokers, dealers or
agents, who may receive commissions or discounts from the selling stockholders.
We will pay substantially all of the expenses incident to the registration of
the shares, except for sales commissions and other seller's compensation
applicable to sales of the shares.
The selling stockholders and any underwriters, agents or broker-dealers
that participate with the selling stockholders in the distribution of the common
stock may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, and any commissions received by them and any profit on the resale
of the common stock may be deemed to be underwriting commissions or discounts
under the Securities Act.
Our common stock is traded on the Nasdaq National Market under the
symbol "INCX." The closing price of our common stock on September 8, 2000, was
$3.94 per share.
Our principal executive offices are located at 1765 The Exchange, Suite
200, Atlanta, Georgia 30339, and our telephone number is (770) 221-9990.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 5 FOR A DISCUSSION OF THESE RISKS.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is September __, 2000.
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TABLE OF CONTENTS
About this Prospectus.................................. 1
Where You Can Find More Information.................... 1
InfoCure............................................... 3
Risk Factors........................................... 5
Use of Proceeds........................................12
Selling Stockholders...................................12
Plan of Distribution...................................13
Legal Matters..........................................14
Experts................................................14
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf process, certain of our shareholders (the "selling
shareholders") may sell up to an aggregate of 327,660 shares of our common stock
in one or more offerings. You should read this prospectus and any applicable
prospectus supplement provided to you together with the additional information
described below under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may read and copy
any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048, and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. You may call the SEC at 1-800-732-0330 for
further information on the operation of the public reference facilities. You can
also obtain copies of these documents at prescribed rates by writing to the
Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549 or from the offices of the Nasdaq National Market at 9513 Key West Avenue,
Rockville, Maryland 20850.
The SEC allows us to "incorporate by reference" into this prospectus
the information we file with them, which means that we can disclose important
information to you by referring to those documents. The information incorporated
by reference is an important part of this prospectus and information that we
subsequently file with the SEC will automatically update and supercede
information in this prospectus and in our other filings with the SEC. We
incorporate by reference the documents listed below, which we have already filed
with the SEC, and any future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until all the
securities offered by this prospectus have been sold:
- Annual Report on Form 10-K for the year ended December 31,
1999, as amended by Annual Report on Form 10-K/A filed on May
1, 2000;
- Quarterly Report on Form 10-Q for the three months ended March
31, 2000;
- Quarterly Report on Form 10-Q for the three months ended June
30, 2000;
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- Current Report on Form 8-K filed on September 6, 2000;
- The financial statements of The Healthcare Systems Division of
The Reynolds and Reynolds Company included in InfoCure's
Prospectus filed pursuant to Rule 424(b)(4) on April 22, 1999
which constitutes part of the Registration Statement on Form
S-3 (No. 333-71109); and
- Registration Statement on Form 8-A, which includes a
description of our common stock, filed on January 28, 1999.
You may request a copy of these filings, other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing, at no cost, by writing or calling us at the following address: 1765 The
Exchange, Suite 200, Atlanta, Georgia 30339, telephone number (770) 221-9990,
Attention: Corporate Secretary.
We have also filed a registration statement with the SEC relating to
the securities. This prospectus is part of the registration statement. You may
obtain from the SEC a copy of the registration statement and exhibits that we
filed with the SEC when we registered the securities. The registration statement
may contain additional information that may be important to you. You should rely
only on the information contained or incorporated by reference in this
prospectus and any applicable prospectus supplement. We have not authorized
anyone else to provide you with additional or different information. These
securities are only being offered in states where the offer is permitted. You
should not assume that the information in this prospectus is accurate as of any
date other than the dates on the front of this prospectus.
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INFOCURE
We are a leading national provider of information management technology
to targeted healthcare specialties. Our applications and services are used
primarily by small to mid-size medical practices within the following practice
areas:
- anesthesiology,
- dental,
- dermatology and plastic surgery,
- emergency medicine,
- general medical,
- oral and maxillofacial surgery,
- ophthalmology,
- orthodontics,
- pathology,
- pediatrics,
- podiatry, and
- radiology.
Our offerings include practice management software products and
related hardware, ongoing training and support and electronic data interchange,
or "EDI" services. These products and services are designed to increase the
quality and reduce the cost of providing care by allowing physicians to manage
their practices more efficiently and reduce the administrative burdens created
by an increasingly complex healthcare environment.
We recently reorganized our business to consist of a medical division,
which we have named VitalWorks, and a dental division, which we have named
PracticeWorks. We expect this reorganization to facilitate changes in our
pricing of practice management software products, our delivery of these products
to customers and the scope of our products offerings. We intend to develop new
practice management software applications that can be products delivered through
the application services provider, or ASP, delivery model. In the ASP delivery
model, we would remotely host applications from an offsite central server that
physicians would access over dedicated lines, virtual private networks or the
Internet. We are also developing Internet-based applications and services and
wireless solutions that are designed to allow our customers to utilize new
technology to enhance office workflow and conduct business-to-business
e-commerce.
We intend to convert our customers to subscription-based pricing for
substantially all of our products and services. We began offering substantially
all of our products and services on the subscription pricing model during the
second quarter of 2000. Under the subscription pricing model, customers pay a
fixed, monthly fee for use of our practice management software products and
maintenance and
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support services. This represents a change from our historical pricing model in
which we charged customers an initial licensing fee for use of practice
management products and continuing maintenance and support fees.
Our principal offices are located at 1765 The Exchange, Suite 200,
Atlanta, Georgia 30339, and our telephone number is (770) 221-9990.
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RISK FACTORS
This prospectus contains certain forward-looking statements and
information relating to InfoCure that are based on the beliefs of management as
well as assumptions made by and information currently available to management.
When used in this prospectus, the words "anticipate," "believe," "estimate,"
"expect," "intend," "plan," or any similar expressions, as they relate to
InfoCure or our management, or the management of any of our businesses, are
intended to identify forward-looking statements. Such statements reflect our
current views with respect to future events and are subject to certain risks,
uncertainties and assumptions. Should one or more of these risks or
uncertainties materialize, or should underlying assumptions prove incorrect,
actual results may vary materially from those described herein as anticipated,
believed, estimated, expected, intended or planned. We do not intend to update
these forward-looking statements. The following risk factors set forth some of
the factors that could cause our actual results to differ materially from the
expected results described in our forward-looking statements.
WE HAVE RECENTLY INCURRED LOSSES AND EXPECT TO CONTINUE TO INCUR LOSSES FOR THE
FORESEEABLE FUTURE.
We had net losses of $14.4 million for the three months ended June 30,
2000 and $25.6 million for the six months ended June 30, 2000. We expect the
transition to a subscription pricing model to continue to adversely impact our
cash flow until revenue from subscription fees replaces revenue from software
license fees and hardware sales. We also expect to incur increased marketing and
sales expenses in connection with offering our ASP products and Internet
solutions. As a result, based on current estimates, we expect to continue to
incur net losses for the foreseeable future.
OUR QUARTERLY OPERATING RESULTS MAY VARY AND IN THE PAST WE HAVE EXPERIENCED
LOSSES.
Our operating results may vary significantly from quarter to quarter.
In addition, we have experienced historical losses. Our operating results will
be influenced by such factors as:
- our success in appropriately pricing and transitioning to the
subscription pricing model;
- the rate at which our existing customers convert and new
customers subscribe to our subscription pricing model;
- our release of our ASP-delivered product and Internet
solutions and the rate of adoption of these products and
services by new and existing customers;
- the timing of and charges associated with completed
acquisitions or other events;
- changes in customer purchasing patterns;
- competition;
- the timing of and cost related to development of our new
products;
- the length of sales cycles; and
- the levels of advertising and promotional expenditures.
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OUR SUBSCRIPTION PRICING MODEL IS UNPROVEN AND OUR SUCCESS DEPENDS ON ACCEPTANCE
OF THIS MODEL AND OUR ABILITY TO SET OUR SUBSCRIPTION FEES AT APPROPRIATE
LEVELS.
Existing and potential new customers may not accept our subscription
pricing model. The success of our subscription pricing model depends on our
ability to set subscription fees at rates that will allow us to achieve
profitability. The markets for information management products and services
delivered through subscription pricing are relatively new and evolving. There
are relatively few similar products whose subscription fees we can evaluate in
setting our fees and the providers of those products have also had to set their
fees in the context of an undeveloped market. As a result, we have limited
information from which to evaluate the appropriate level for our subscription
fees and we may fail to set our subscription fees at levels that enable us to
become profitable. In addition, we will enter into multi-year agreements with
subscribers pursuant to which subscription fees or increases in fees will be
locked-in typically for three to five years, limiting our ability to increase
our subscription fees for those subscribers. If we fail to appropriately price
our subscription fees, achieving profitability could take longer than expected
or we may never achieve profitability.
OUR ASP PRODUCT STRATEGY IS UNPROVEN AND CUSTOMERS MAY NOT RESPOND FAVORABLY TO
OUR NEW PRODUCTS.
Providing information management technology to physicians through the
ASP delivery model is a business that has only recently begun to develop, and
this concept may not achieve acceptance in the market. In order to successfully
sell our ASP-delivered products, we will need to convince new and existing
customers that the features of these products justify their cost, as well as the
time and administrative expense required to convert to these products. If we are
unsuccessful or if the market for our ASP-delivered products does not grow or
grows slowly, achieving profitability could take longer than expected or may not
occur at all. Achieving market acceptance for these products will require
substantial sales and marketing efforts and expenditure of significant funds to
increase awareness and demand by our target customers. In addition, our
potential customers may have made extensive investment in hardware, software and
training for existing systems. As a result, they may be unwilling to adopt new
systems. Further, our potential customers could perceive that our ASP-delivered
products will not adequately or cost-effectively address their requirements.
THE FAILURE TO SUCCESSFULLY COMPLETE THE DEVELOPMENT OF OUR INTERNET SOLUTIONS
AND ENTER INTO STRATEGIC RELATIONSHIPS COULD HARM OUR BUSINESS AND LIMIT OUR
POTENTIAL GROWTH.
Our ability to attract new customers may depend upon our ability to
complete the development of our Internet solutions. In addition, our ability to
offer some Internet solutions is contingent upon our entering into strategic
relationships. If we are unsuccessful in completing the development of our
Internet solutions or fail to enter into strategic relationships, the offering
of these products may be delayed or these products may never become available.
OUR ASP PRODUCT STRATEGY IS DEPENDENT UPON THE CONTINUED DEVELOPMENT OF THE
INTERNET.
Our ability to offer ASP-delivered products that can be accessed over
the Internet and our Internet solutions on a widespread basis depends on our
potential customers having access to Internet connections with the necessary
speed, bandwidth and data capacity. The availability of this Internet access
will depend on others for the ongoing development of the Internet
infrastructure, including the necessary speed, bandwidth, data capacity and
security, as well as timely development of complementary products for providing
reliable Internet access and service. We cannot predict whether the Internet
will evolve to the point where our customers will be able to take full advantage
of the services we offer. If the Internet fails to develop into an efficient
medium for these transactions, our ASP product strategy will be unsuccessful.
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OUR SYSTEMS MAY BE VULNERABLE TO SECURITY BREACHES AND VIRUSES.
The success of our strategy to offer ASP-delivered products and
Internet solutions depends on the confidence of our customers in our ability to
securely transmit confidential information. Any failure to provide secure
electronic communication services could harm our business and reputation. Our
ASP-delivered products and Internet solutions will rely on encryption,
authentication and other security technology licensed from third parties to
achieve secure transmission of confidential information. We may not be able to
stop unauthorized attempts to gain access to or disrupt the transmission of
communications by our customers. Anyone who can circumvent our security measures
could misappropriate confidential user information or interrupt our, or our
customers', operations. In addition, our ASP-delivered products may be
vulnerable to viruses, physical or electronic break-ins, and similar
disruptions.
WE PLAN TO EXPAND RAPIDLY AND IT MAY BE DIFFICULT TO MANAGE OUR GROWTH.
We intend to rapidly grow our business. However, we cannot be sure that
we will successfully manage our growth. In order to successfully manage our
growth, we must:
- expand and enhance our administrative infrastructure;
- improve our management, financial and information systems and
controls; and
- expand, train and manage our employees effectively.
Continued growth could place a further strain on our management,
operations and financial resources. The expansion of our product offerings,
target markets and customers will place additional demands on our sales,
marketing and administrative resources. We cannot assure you that our operating
and financial control systems, administrative infrastructure, facilities and
personnel will be adequate to support our future operations or to effectively
adapt to future growth. If we cannot manage our growth effectively, our business
may be harmed.
OUR GROWTH COULD BE LIMITED IF WE ARE UNABLE TO ATTRACT AND RETAIN QUALIFIED
PERSONNEL.
We believe our success depends largely on our ability to attract and
retain highly skilled technical, managerial and marketing personnel to develop
our products and services. Individuals with the information technology skills we
need to further develop our products and services are in short supply and
competition for qualified personnel is particularly intense. We may not be able
to hire the necessary personnel to implement our business strategy, or we may
need to pay higher compensation for employees than we currently expect. There
can be no assurance we will succeed in attracting and retaining the personnel we
need to continue to grow and to implement our business strategy. In addition, we
depend on the performance of our executive officers and other key employees. The
loss of any member of our senior management team could negatively impact our
ability to execute our new product strategy and subscription pricing model.
IF WE FAIL TO PROTECT OUR INTELLECTUAL PROPERTY RIGHTS FROM THIRD PARTY
CHALLENGES, IT MAY SIGNIFICANTLY IMPAIR OUR COMPETITIVE POSITION.
We rely on a combination of copyright, trademark and trade secret laws
and restrictions on disclosure to protect the intellectual property rights
related to our software applications. Our software technology is not patented
and existing copyright laws offer only limited practical protection. In
addition, we have not generally entered into confidentiality agreements with our
employees. We cannot guarantee
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that the legal protections that we rely on will be adequate to prevent
misappropriation of our technology. Further, these protections do not prevent
independent third-party development of competitive products or services.
Unauthorized parties may attempt to copy or otherwise obtain and use our
products or technology. Monitoring use of our products is difficult, and we
cannot assure you that the steps we have taken will prevent unauthorized use of
our technology, particularly in foreign countries where the laws may not protect
our proprietary rights as fully as in the United States.
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AGAINST US COULD BE COSTLY TO DEFEND
AND COULD DIVERT MANAGEMENT'S ATTENTION AWAY FROM OUR BUSINESS.
As the number of software products in our target markets increases and
as the functionality of these products overlaps, we may become increasingly
subject to the threat of infringement claims. We cannot guarantee you that third
parties will not assert infringement claims against us in the future. Any
infringement claims alleged against us, even if without merit, could be
time-consuming and expensive to defend. Any infringement claims may divert
management's attention and resources and could also cause delays in the delivery
of our applications to our customers. Settlement of any infringement claims
could require us to enter into costly royalty or licensing agreements. If a
claim of product infringement against us was successful and we were unable to
license the infringing or similar technology, our business, financial condition
and results of operations could be harmed.
WE MAY UNDERTAKE ACQUISITIONS THAT CAN POSE RISKS TO OUR BUSINESS.
We may undertake acquisitions if we identify companies with
complementary applications, services, businesses or technologies. We may be
unable to retain the acquired companies' personnel or integrate them into our
company. Our profitability may suffer because of acquisition-related costs or
amortization of acquired goodwill and other intangible assets. Similarly, the
time and expense associated with finding suitable and compatible companies to
enhance our product offering could disrupt our ongoing business and divert our
management's focus.
WE MAY FACE DIFFICULTIES INTEGRATING ACQUIRED BUSINESSES.
Our success depends on our successful integration of the businesses we
have acquired. Integrating the management and operations of acquired businesses
is time consuming, and we cannot guarantee that we will achieve any of the
anticipated synergies and other benefits expected to be realized from these
acquisitions.
TECHNOLOGY SOLUTIONS MAY CHANGE FASTER THAN WE ARE ABLE TO UPDATE OUR
TECHNOLOGY.
The information management technology market in which we compete is
characterized by rapidly changing technology, evolving industry standards,
emerging competition and the frequent introduction of new services, software and
other products. Our success depends partly on our ability to:
- develop new or enhance existing applications, software and
services to meet our customers' changing needs in a timely and
cost-effective way;
- respond effectively to technological changes and new product
offerings of our competitors; and
- develop relationships with strategic partners necessary to
offer our ASP-delivered products and Internet solutions.
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We cannot assure you that we will be able to accomplish any or all of
these goals. Many of our competitors may develop products or technologies that
are better or more attractive than ours or that may render our technology or
applications obsolete. If we do not succeed in adapting our technology, our
business could be harmed.
WE ARE SUBJECT TO GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES.
Legislation currently being considered at the federal level could
impact the manner in which we conduct our business. The Health Insurance
Portability and Accountability Act of 1996, known as HIPAA, mandates the
adoption of national standards for the transmission of certain types of medical
information and the data elements used in such transmissions and to insure the
integrity and confidentiality of such information. On November 3, 1999, the
Secretary of Health and Human Services promulgated regulations to protect the
privacy of electronically transmitted or maintained, individually identifiable
health information. We believe our products will enable compliance with the
proposed regulations but cannot assure you that we will be able to comply with
those proposed regulations in a timely manner or at all. Moreover, until the
proposed regulations become final, they could change, which could require us to
expend additional resources to comply with the revised standards and we may not
be able to comply with the revised standards in a timely manner or at all. If
any of our products or services are subject to those regulations, we may be
required to incur additional expenses in order to comply with these
requirements, and we may not be able to comply with them in a timely manner or
at all. In addition, the success of our compliance efforts may also be dependent
on the success of healthcare participants in dealing with the standards. If we
are unable to comply with regulations implementing HIPAA in a timely manner or
at all, the sale of our products and our business could be harmed.
The United States Food and Drug Administration, or "FDA", is
responsible for assuring the safety and effectiveness of medical devices under
the Federal Food, Drug and Cosmetic Act. Computer applications and software are
considered medical devices and are subject to regulation by the FDA when they
are indicated, labeled or intended to be used in the diagnosis of disease or
other conditions, or in the cure, mitigation, treatment or prevention of
disease, or are intended to affect the structure or function of the body. We do
not believe any of our current products or services are subject to FDA
regulation as medical devices; however, we plan to expand our product and
service offerings into areas that may be subject to FDA regulation. We have no
experience in complying with FDA regulations. Our compliance with such FDA
regulations could prove to be time consuming, burdensome and expensive, which
could adversely affect our ability to introduce new applications or services in
a timely manner.
In addition, we may become subject to additional government regulations
in connection with our changing product strategy. Laws and regulations directly
applicable to communications or commerce over the Internet are becoming more
prevalent. Laws and regulations may be adopted with respect to the Internet or
other online services covering issues such as user privacy, pricing, content,
copyrights, distribution and characteristics, and quality of products and
services. Because of the increasing use of the Internet as a communication and
commercial medium, the government has adopted and may adopt additional laws and
regulations with respect to the Internet covering such areas as user privacy,
pricing, content, taxation, copyright protection, distribution and
characteristics and quality of production and services.
CHANGES IN STATE AND FEDERAL LAWS RELATING TO CONFIDENTIALITY OF PATIENT MEDICAL
RECORDS COULD LIMIT OUR CUSTOMERS' ABILITY TO USE OUR SERVICES.
We cannot assure you that changes to state or federal laws will not
materially restrict the ability of healthcare providers to submit information
from patient records using our applications. Such restrictions would decrease
the value of our applications to our customers, which could materially harm
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our business. The confidentiality of patient records and the circumstances under
which records may be released for inclusion in our databases are subject to
substantial regulation by state governments. These state laws and regulations
govern both the disclosure and the use of confidential patient medical record
information. Although compliance with these laws and regulations is at present
principally the responsibility of the healthcare provider, regulations governing
patient confidentiality rights are evolving rapidly. Additional legislation
governing the dissemination of medical record information has been proposed at
both the state and federal level. This legislation may require holders of this
information to implement security measures. Such legislation might require us to
make substantial expenditures to implement such measures.
CHANGES IN THE REGULATORY AND ECONOMIC ENVIRONMENT IN THE HEALTHCARE INDUSTRY
COULD ADVERSELY AFFECT OUR BUSINESS.
The healthcare industry is highly regulated and is subject to changing
political, economic and regulatory influences. These factors affect the
purchasing practices and operation of healthcare organizations. Changes in
current healthcare financing and reimbursement systems could require us to make
unplanned enhancements of applications or services, or result in delays or
cancellations of orders or in the revocation of endorsement of our services by
our strategic partners and others. Federal and state legislatures have
periodically considered programs to reform or amend the U.S. healthcare system
at both the federal and state level. These programs may contain proposals to
increase governmental involvement in healthcare, lower reimbursement rates or
otherwise change the environment in which healthcare industry participants
operate. Healthcare industry participants may respond by reducing their
investments or postponing investment decisions, including investments in our
applications and services.
COMPETITION COULD REDUCE REVENUE FROM OUR PRODUCTS AND SERVICES.
Our principal competitors include both national and regional
information management technology vendors. Currently, the information management
technology industry in the United States is characterized by a large number of
relatively small, regionally-focused companies, comprising a highly fragmented
industry with only a few national vendors. Smaller, regionally-focused companies
typically market their products to a single practice specialty. Until recently,
larger, national vendors have targeted primarily large healthcare providers. We
believe that the larger, national vendors may broaden their markets to include
both small and large healthcare providers. The information management technology
industry is consolidating, which has resulted in large, well-capitalized
companies that have not historically been providers of information management
products and services entering into the information management technology
market. In addition, we compete with national and regional providers of
computerized billing, insurance processing and record management services to
healthcare practices. As the market for our products and services expands,
additional competitors are likely to enter this market. We believe that the
primary competitive factors in our markets are:
- product features and functionality;
- customer service, support and satisfaction;
- price;
- ongoing product enhancements; and
- the reputation and stability of the vendor.
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<PAGE> 13
Some national competitors have greater financial, development,
technical, marketing and sales resources than InfoCure. If competition in the
practice management systems industry intensifies, our results of operations may
suffer and we may be required to lower the prices of our products and services.
OUR NEW PRODUCT STRATEGY AND SUBSCRIPTION PRICING MODEL WILL REQUIRE ADDITIONAL
FINANCING WHICH MAY NOT BE AVAILABLE.
Our transition to the subscription pricing model will continue to
adversely impact our cash flow until subscription fees replace the decline in
one-time revenue from license fees and hardware sales. In addition, we expect to
incur increased marketing and sales expense in connection with the rollout of
our ASP-delivered products and Internet solutions. Adequate financing for these
needs may not be available to us.
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<PAGE> 14
USE OF PROCEEDS
The proceeds from the sale of the common stock offered pursuant to this
prospectus are solely for the account of the selling stockholders identified in
this prospectus. We will not receive any proceeds from the sale of the shares
from the selling stockholders.
SELLING STOCKHOLDERS
The selling stockholders received their shares of common stock in
transactions with InfoCure as follows:
- 127,660 shares of common stock offered by this prospectus were
issued to shareholders of Practice Outlook, Inc. in connection
with InfoCure's acquisition of Practice Outlook in February
2000; and
- up to 200,000 shares of common stock offered by this
prospectus will be issued pursuant to the terms of a
convertible note issued in connection with InfoCure's
acquisition of The Healthcare Systems Division of The Reynolds
and Reynolds Company on October 23, 1998.
The shares of common stock offered by The Reynolds and Reynolds Company
are expected to be issued to The Reynolds and Reynolds Company during September
2000 pursuant to the terms of the convertible note. All of the remaining shares
of common stock registered for sale pursuant to this prospectus are currently
owned by the other selling stockholder.
The following table sets forth information known to us with respect to
beneficial ownership of our common stock as of August 15, 2000 by each selling
stockholder. The following table assumes that the selling stockholders sell all
of the shares. Since each selling stockholder may choose not to sell his or her
shares, we are unable to state the exact number of shares that actually will be
sold.
Information with respect to "beneficial ownership" shown below is based
on information supplied by the respective beneficial owner or by other
stockholders as well as filings made with the SEC or furnished to us. For
purposes of calculating the percentage beneficially owned, the shares of common
stock deemed outstanding include:
- 34,181,727 shares outstanding as of August 15, 2000; and
- shares issuable by us within 60 days pursuant to options,
warrants and convertible securities held by the respective
person ("Derivative Securities").
Derivative Securities are deemed to be outstanding and to be
beneficially owned by the person holding the securities for the purpose of
computing the percentage ownership of that person but are not treated as
outstanding for the purpose of computing the percentage ownership of any other
person.
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<PAGE> 15
<TABLE>
<CAPTION>
COMMON STOCK BENEFICIALLY COMMON STOCK BENEFICIALLY
OWNED PRIOR TO THIS OFFERING COMMON OWNED AFTER THIS OFFERING
---------------------------- STOCK TO BE --------------------------
NAME AND ADDRESS OF SOLD IN THIS
BENEFICIAL OWNER SHARES PERCENTAGE OFFERING SHARES PERCENTAGE
---------------------------------- ----------- ---------- ------------ ------ ----------
<S> <C> <C> <C> <C> <C>
Gray Matter, Inc. 127,660 * 127,660 0 *
The Reynolds and Reynolds 500,000(1) 1.5% 200,000 300,000 *
Company
</TABLE>
---------------
* Less than one percent.
(1) Represents shares of common stock that will be issued to The Reynolds and
Reynolds Company pursuant to the terms of the convertible note.
PLAN OF DISTRIBUTION
Our common stock may be offered for sale and sold in one or more
transactions, including block transactions, at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at prices determined on a negotiated
or competitive bid basis. Shares of common stock may be sold directly, through
agents designated from time to time, or by such other means as may be specified
in the supplement to this prospectus. Participating agents or broker-dealers in
the distribution of any of the shares of common stock may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended. Any
discount or commission received by any underwriter and any participating agents
or broker-dealers, and any profit on the resale of shares of common stock
purchased by any of them may be deemed to be underwriting discounts or
commissions under the Securities Act.
Shares of our common stock may be sold through a broker-dealer acting
as agent or broker or to a broker-dealer acting as principal. In the latter
case, the broker-dealer may then resell such shares of common stock to the
public at varying prices to be determined by the broker-dealer at the time of
resale.
To the extent required, the number of shares of common stock to be
sold, information relating to the underwriters, the purchase price, the public
offering price, if applicable, the name of any underwriter, agent or
broker-dealer, and any applicable commissions, discounts or other items
constituting compensation to such underwriters, agents or broker-dealers with
respect to a particular offering will be set forth in an accompanying supplement
to this prospectus.
If underwriters are used in a sale, shares of common stock will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Shares of common stock may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of shares of common stock will be
named in the supplement to this prospectus relating to that offering and, if an
underwriting syndicate is used, the managing underwriter or underwriters will be
stated on the cover of the prospectus supplement.
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<PAGE> 16
Under the securities laws of some states, the shares of common stock
registered by the registration statement may be sold in those states only
through registered or licensed brokers or dealers.
Any person participating in the distribution of common stock registered
under the registration statement that includes this prospectus will be subject
to applicable provisions of the Securities Exchange Act of 1934, as amended, and
the applicable SEC rules and regulations, including, among others, Regulation M,
which may limit the timing of purchases and sales of any of our common stock by
any such person. Furthermore, Regulation M may restrict the ability of any
person engaged in the distribution of our common stock to engage in
market-making activities with respect to our common stock. These restrictions
may affect the marketability of our common stock and the ability of any person
or entity to engage in market-making activities with respect to our common
stock.
Upon sale under the registration statement that includes this
prospectus, the shares of common stock registered by the registration statement
will be freely tradable in the hands of persons other than our affiliates.
LEGAL MATTERS
The validity of the issuance of the shares of the common stock offered
by this prospectus will be passed upon for us by King & Spalding.
EXPERTS
The consolidated financial statements of InfoCure Corporation and its
subsidiaries incorporated by reference in this prospectus have been audited by
BDO Seidman, LLP, independent certified public accountants, to the extent and
for the periods as set forth in their reports incorporated herein by reference,
and are incorporated herein in reliance upon such reports given upon the
authority of said firm as experts in accounting and auditing.
The financial statements of The Healthcare Systems Division of The
Reynolds and Reynolds Company as of September 30, 1998 and 1997 and for the
years ended September 30, 1998, 1997 and 1996 incorporated by reference in this
prospectus from InfoCure Corporation's Registration Statement on Form S-3 (with
respect to a public offering of 3,759,000 common shares), effective April 21,
1999, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated herein by reference, have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
The consolidated financial statements of Datamedic Holding Corp. and
subsidiaries as of March 31, 1999 and 1998, and for each of the years in the
three-year period ended March 31, 1999, have been incorporated by reference
herein in reliance upon the report of KPMG LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
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<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN THIS PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee ............. $ 323
Nasdaq National Market Listing Fee .............................. 3,277
Accounting fees and expenses .................................... 15,000
Legal fees and expenses ......................................... 5,000
Miscellaneous expenses .......................................... 5,400
Total Expenses .................................................. $29,000
-------
</TABLE>
All fees other than the SEC registration fee and the Nasdaq National
Market Listing Fee are estimated. All of the expenses of the issuance and
distribution of the common stock being offered will be borne by us.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a Delaware
corporation to indemnify officers, directors, employees and agents for actions
taken in good faith and in a manner they reasonably believed to be in, or not
opposed to, the best interests of the corporation, and with respect to any
criminal action, which they had no reasonable cause to believe was unlawful. The
Delaware General Corporation Law provides that a corporation may pay expenses
(including attorney's fees) incurred by an officer or director in defending any
civil, criminal, administrative or investigative action, and must reimburse a
successful defendant for expenses, including attorney's fees, actually and
reasonably incurred, and permits a corporation to purchase and maintain
liability insurance for its directors and officers. The Delaware General
Corporation Law provides that indemnification may not be made for any claim,
issue or matter as to which a person has been adjudged by a court of competent
jurisdiction to be liable to the corporation, unless and only to the extent a
court determines that the person is entitled to indemnity for such expenses as
the court deems proper.
InfoCure's bylaws provide that InfoCure shall, to the full extent
permitted by Section 145, indemnify any person, made or threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is, was or is about to become an officer, director, employee or
agent of InfoCure. InfoCure shall pay the expenses (including attorney's fees)
incurred by a person in defending any proceeding in advance of its final
disposition, provided, however, that, to the extent required by law, such
payment of expenses in advance of the final disposition of the proceeding shall
be made by InfoCure only upon receipt of an undertaking by the person to repay
all amounts advanced if it should be ultimately determined that the person is
not entitled to be indemnified.
In addition, InfoCure's certificate of incorporation eliminates or
limits personal liability of its directors to the full extent permitted by
Section 102(b)(7) of the Delaware General Corporation Law.
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<PAGE> 18
Section 102(b)(7) provides that a corporation may eliminate or limit
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) for willful or negligent conduct
in paying dividends or repurchasing stock out of other than lawfully available
funds or (iv) for any transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or limit the liability of a
director for any act or omission occurring prior to the date when such provision
becomes effective.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
3.1 Certificate of Incorporation of InfoCure with all amendments (incorporated by reference
to Exhibit 3.1 filed with InfoCure's Annual Report on Form 10-K for the Year Ended
December 31, 1999).
3.2 Second Amended and Restated Bylaws of InfoCure (incorporated by reference to
Exhibit 3.2 filed with InfoCure's Annual Report on Form 10-K for the Year Ended
December 31, 1999).
4.1 See Exhibits 3.1 and 3.2 for provisions of the Amended Certificate of Incorporation and
Bylaws of InfoCure defining rights of the holders of common stock of InfoCure.
4.2 Specimen Certificate of shares of common stock (incorporated by reference to
Exhibit 4.2 filed with InfoCure's Registration Statement on Form SB-2) (Registration
File No. 333-18923).
5.1 Opinion of King & Spalding, counsel to InfoCure, as to legality of the shares being
registered.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of KPMG LLP
23.4 Consent of King & Spalding (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature page of Registration Statement)
</TABLE>
ITEM 17. 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:
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<PAGE> 19
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if 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 Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia on the 8th day of
September, 2000.
INFOCURE CORPORATION
By:/s/ Frederick L. Fine
------------------------------------------
Frederick L. Fine
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Frederick L. Fine, Richard E. Perlman and
James K. Price, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and any
subsequent registration statements pursuant to Rule 462 of the Securities Act
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 he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof. Pursuant to the requirements of the Securities Act of
1933, as amended, this registration statement has been signed by the following
persons in the capacities on September 8, 2000.
SIGNATURE TITLE
--------- -----
/s/ Frederick L. Fine President, Chief Executive Officer and
------------------------ Director (Principal Executive Officer)
Frederick L. Fine
/s/ James K. Price Executive Vice President, Secretary and
------------------------ Director
James K. Price
/s/ Richard E. Perlman Chairman, Treasurer and Director
------------------------
Richard E. Perlman
/s/ James A. Cochran Senior Vice President of Finance and
------------------------ Chief Financial Officer (Principal
James A. Cochran Financial Officer and Principal Accounting
Officer)
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<PAGE> 21
/s/ James D. Elliott Director
------------------------
James D. Elliot
/s/ Raymond H. Welsh Director
------------------------
Raymond H. Welsh
II-5
