AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 6, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DENTAL CARE ALLIANCE, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 65-0555-126
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(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1343 MAIN STREET, 7TH FLOOR
SARASOTA, FLORIDA 34236
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
1997 EXECUTIVE INCENTIVE COMPENSATION PLAN
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(FULL TITLE OF THE PLAN)
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DR. STEVEN R. MATZKIN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DENTAL CARE ALLIANCE, INC.
1343 MAIN STREET, 7TH FLOOR
SARASOTA, FLORIDA 34236
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(Name and address of agent for service)
(941) 955-3150
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(Telephone number, including area code, of agent for service)
COPY TO:
ROBERT L. GROSSMAN, ESQ.
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0685
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CALCULATION OF REGISTRATION FEE
<TABLE>
====================================================================================================================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION FEE
PER SHARE (1) OFFERING PRICE(2)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 250,000 $12.00 - $14.13 $3,314,175 $977.68
$.01 par value............... shares
====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933.
(2) Computed in accordance with Rule 457(h) on the basis of the (i) actual
exercise price of $12.00 for an aggregate of 76,000 options to purchase
Common Stock which have already been granted under the 1997 Executive
Incentive Compensation Plan (the "Plan") and (ii) the average of the
high and low price of a share of Common Stock as reported by the Nasdaq
National Market on May 5, 1998 (which was $14.13 with respect to
147,500 shares of Common Stock subject to future grants of options
under the Plan).
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) all other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since the end of fiscal year 1997; and
(c) the description of the Registrant's shares of Common Stock,
$.01 par value, set forth in Item 1 of the Registrant's
Registration Statement on Form 8-A (Commission File No.
0-23219) filed with the Commission on October 13, 1997.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation (the "Certificate")
and Bylaws provide that the Registrant may indemnify its officers and directors
to the full extent permitted by Delaware Law, including Section 145 of Delaware
Law ("Section 145") thereunder. In addition, the Certificate eliminates personal
liability of its directors to the full extent permitted by Section 102(b)(7) of
Delaware Law ("Section 102(b)(7)").
Section 145 permits a corporation to indemnify its directors,
officers, employees and agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with any action, suit or proceeding brought by a third
party if such directors or officers acted 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 or proceeding, had no
reason to believe their conduct was unlawful. In a derivative action,
indemnification may be made for expenses actually and reasonably incurred by
directors, officers, employees and agents, in connection with the defense or
settlement of an action or suit and with respect to a matter as to which they
shall have acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interest of the corporation, except that no
indemnification shall be made if such person shall have been adjudged liable to
the corporation, unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that the defendant
officers or directors are reasonably entitled to indemnify for such expenses
despite such adjudication of liability.
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<PAGE>
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 provisions shall eliminate or
limit the liability of a director for any act or omission occurring prior to the
date when such provision becomes effective.
The Company is entering into Indemnification Agreements with its
directors and executive officers in which the Registrant will agree to indemnify
such persons to the fullest extent now or hereafter permitted by Delaware Law.
The Company may also obtain a liability insurance policy for its officers and
directors, which may extend to, among other things, liabilities under the
Securities Act of 1933, as amended.
The indemnification provided by Delaware Law and the Certificate
and the Company's Bylaws is not exclusive of any other rights to which a
director or officer may be entitled. The general effect of the foregoing
provisions may be to reduce the circumstances in which an officer or director
may be required to bear the economic burden of the foregoing liabilities and
expense.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-5 below.
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 to include any material
information with respect to the plan of distribution
not previously disclosed in the Registration
Statement or any material change to such information
in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the
"Securities Act"), each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
II-2
<PAGE>
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Act, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Sarasota, State of Florida on May 6, 1998.
DENTAL CARE ALLIANCE, INC.
By: /S/ DR. STEVEN R. MATZKIN
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Name: Dr. Steven R. Matzkin
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Dr. Steven R. Matzkin and Mitchell
B. Olan his true and lawful attorneys-in-fact, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to file the same,
with exhibits thereto, and other documents to be filed in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or their substitutes, each acting alone, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/S/ DR. STEVEN R. MATZKIN
- ---------------------------------- Director, Chief Executive Officer and President May 6, 1998
Dr. Steven R. Matzkin (Principal Executive Officer)
/S/ DAVID P. NICHOLS
- ---------------------------------- (Principal Financial and Accounting Officer) May 6, 1998
David P. Nichols
/S/ CURTIS LEE SMITH, JR.
- ---------------------------------- Director May 6, 1998
Curtis Lee Smith, Jr.
/S/ ROBERT F. RAUCCI
- ---------------------------------- Director May 6, 1998
Robert F. Raucci
/S/ MITCHELL B. OLAN
- ---------------------------------- Director May 6, 1998
Mitchell B. Olan
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 1997 Executive Incentive Compensation Plan(1)
5.1 Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel,
P.A.
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Greenberg Traurig Hoffman Lipoff Rosen & Quentel,
P.A. (contained in its opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures section of
this Registration Statement
- ----------------------------
(1) Incorporated by reference to Exhibit 10.19 filed with Amendment No. 3
to the Registrant's Registration Statement on Form S-1 filed with the
Commission on October 30, 1997 (Commission File No. 333-34429).
EXHIBIT 5.1
May 6, 1998
Dental Care Alliance, Inc.
1343 Main Street, 7th floor
Sarasota, Florida 34236
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
On the date hereof, Dental Care Alliance, Inc., a Delaware corporation
(the "Company"), sent for filing with the Securities and Exchange Commission a
Registration Statement on Form S-8 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the offering and sale by the Company of up to 250,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), pursuant
to stock options ("Options") granted or to be granted under the Company's 1997
Executive Incentive Compensation Plan (the "Plan"). We have acted as special
counsel to the Company in connection with the preparation and filing of the
Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Certificate of
Incorporation and Bylaws of the Company; (ii) records of corporate proceedings
of the Company, authorizing the Plan, any amendments thereto, and the
preparation of the Registration Statement and related matters; (iii) the
Registration Statement and exhibits thereto; and (iv) such other documents and
instruments as we have deemed necessary for the expression of the opinions
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that,
assuming that the Company maintains an adequate number of authorized and
unissued shares of Common Stock available for issuance to those persons who
exercise Options granted under the Plan and the consideration for shares of
Common Stock issued pursuant to such Options is actually received by the Company
as provided in the Plan, the shares of Common Stock issued pursuant to the
exercise of Options granted under and in accordance with the terms of the Plan
will be duly and validly issued, fully paid and nonassessable.
<PAGE>
Dental Care Alliance, Inc.
May 6, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
/S/ GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Dental Care Alliance, Inc. of our report dated March
30, 1998, which appears on page 36 of the 1997 Annual Report on Form 10-K for
the year ended December 31, 1997.
/S/ PRICE WATERHOUSE LLP
Tampa, Florida
May 5, 1998
