As filed with the Securities and Exchange Commission
on June 14, 1995
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
FORM S-8
Registration Statement
Under
The 1933 Act
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CYCARE SYSTEMS, INC.
(Exact name of Registrant as specified in charter)
Delaware 91-0842322
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7001 North Scottsdale Road, Suite 1000
Scottsdale, Arizona 85253-3644
(Address of Principal Executive Office) (Zip Code)
------------------------------------
CYCARE SYSTEMS, INC. 1995 LONG-TERM INCENTIVE PLAN
(Full title of plan)
------------------------------------
Mark R. Schonau Copy To:
Chief Financial Officer, Secretary Matthew P. Feeney
and Treasurer Snell & Wilmer L.L.P.
CYCARE SYSTEMS, INC. One Arizona Center
7001 North Scottsdale Road, Suite 1000 Phoenix, AZ 85004-0001
Scottsdale, Arizona 85253-3644
(Name and address of agent for service)
(602) 596-4300
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered+ Share* Price* Fee
Common Stock, 300,000 $24.88 $7,464,000 $2,573.79
$0.01 par value shares
+ Prior to this Form S-8 Registration Statement, 820,000 shares of Common
Stock were registered under Form S-8 Registration Statement Nos. 2-83933,
33-5201 and 33-44487 to be issued under the 1995 Long-Term Incentive Plan.
* Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee using the average of the high and low price of the
Registrant's Common Stock reported on The New York Stock Exchange on
June 13, 1995.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by the Company with
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act") and are incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year
ended December 31, 1994.
2. Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1995.
3. The description of the Company's Common Stock
included in Registration Statement on
Form 8-A dated May 26, 1989.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the 1934 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 by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Officers and Directors
Reference is made to Section 145 of the Delaware General
Corporation Law (the "Delaware GCL"), as amended from time to time ("Section
145"), which provides for indemnification of directors and officers of a
corporation in certain circumstances. Under Article 5.2 of the registrant's
Amended By-laws, the registrant shall, to the full extent permitted by Section
145, indemnify all persons whom it may indemnify pursuant thereto. Additionally,
Article 5.2 provides that such indemnification is not exclusive of any other
rights under, for example, an indemnity contract or vote of shareholders or
disinterested directors, and that such indemnification rights continue as to a
person who has ceased to be a director or officer and shall inure to the benefit
of the heirs, executors, and administrators of such a person.
Article Eighth of the the registrant's Restated Certificate of
Incorporation of the registrant provides for indemnification of directors and
officers of the registrant. The provisions of Article Eighth, among other
matters, require the registrant to indemnify certain persons to the fullest
extent authorized by the Delaware GCL, as the same may now exist or may
hereafter be amended (but, in the case of any such amendment only to the extent
that such amendment permits the registrant to provide broader indemnification
rights than such law permitted the registrant to provide prior to such
amendment). Article Eighth provides that the right to indemnification is a
contract right and makes advances of expenses incurred in defending a proceeding
mandatory, provided that if required by the Delaware GCL, the person seeking
such advances furnishes an undertaking to the registrant to repay all amounts so
entitled to be indemnified. Article Eighth also expressly provides that any
person claiming indemnification may sue the registrant for payment of amounts
due, that the registrant in such case will have the burden of proving that the
claimant has not met the standards of conduct which make it permissible to
indemnify the person for the amount claimed under the Delaware GCL (except in
the case of a claim for advancement of expenses, where the required undertaking,
if any, has been tendered, in which case it shall not be a defense that the
person has not met the applicable standards of conduct), and that neither the
failure by the registrant to have made a determination that indemnification is
proper, nor an actual determination by the registrant that the claimant has not
met the applicable standard of conduct, is a defense to the action or creates a
presumption that the claimant has not met the applicable standard of conduct.
The registrant currently maintains directors' and officers'
liability insurance to supplement the protection provided in the registrant's
Amended By-laws and to fund certain payments that the registrant may be required
to make under any such provisions. Such insurance is renewable annually and is
subject to standard terms and conditions, including exclusions from coverage.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
----------- -----------
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Snell & Wilmer L.L.P.
(included in the opinion filed as Exhibit 5)
24 Power of Attorney (included in signature pages)
In addition to those exhibits shown above, the Company hereby
incorporates by reference the following exhibits:
Exhibit Originally Filed
No. Description as Exhibit:
- ------- ----------- ----------------
4.1 Restated Certificate of 3-A to the Company's Annual
Incorporation of the Report on Form 10-K for the
Company fiscal year ended December 31,
1988
4.2 Amended By-laws of 3-B to the Company's Annual
the Company Report on Form 10-K for the
fiscal year ended December 31,
1988
4.3 The Shareholders 1 to the Company's Report
Rights Agreement on Form 8-K dated May 9, 1989
dated May 15, 1989
99 CyCare Systems, Inc. Exhibit A to the Company's
1995 Long-Term Proxy Statement for the Annual
Incentive Plan Meeting of Shareholders held
May 16, 1995
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "1933 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 this registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement.
(2) That, for the purpose of determining any liability under
the 1933 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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the 1934 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.
Insofar as indemnification for liabilities arising under the
1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the 1933 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 Scottsdale, State of Arizona, on
May 16, 1995.
CYCARE SYSTEMS, INC.
By: Mark R. Schonau
---------------------------------
Mark R. Schonau
Chief Financial Officer, Secretary
and Treasurer
Pursuant to the requirements of the 1933 Act, this
registration statement has been signed by the following persons in the
capacities and on the date indicated. Each person whose signature appears below
hereby authorizes Mark R. Schonau, as attorney-in-fact, to sign his name on his
behalf, individually and in each capacity designated below, and to file any
additional amendments, including this registration statement.
Signature Title Date
--------- ----- ----
By: Jim H. Houtz Director, Chairman May 16, 1995
----------------------- of the Board, President
Jim H. Houtz and Chief Executive Officer
(Principal Executive
Officer)
By: Mark R. Schonau Chief Financial May 16, 1995
----------------------- Officer, Secretary
Mark R. Schonau and Treasurer
(Principal Financial
and Accounting
Officer)
By: Richard J. Burgmeier Director May 16, 1995
------------------------
Richard J. Burgmeier
By: Frank H. Bertsch Director May 16, 1995
------------------------
Frank H. Bertsch
By: A. Theodore Engkvist Director May 16, 1995
------------------------
A. Theodore Engkvist
By: James L. Schamadan, M.D. Director May 16, 1995
------------------------
James L. Schamadan, M.D.
INDEX TO EXHIBITS
Exhibit No. Description
----------- -----------
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Snell & Wilmer L.L.P. (included in the
opinion filed as Exhibit 5)
24 Power of Attorney (included in signature page)
EXHIBIT 5
June 14, 1995
CYCARE SYSTEMS, INC.
7001 North Scottsdale Road, Suite 1000
Scottsdale, AZ 85253-3644
Ladies and Gentlemen:
Reference is made to your proposed offering pursuant to the
CyCare Systems, Inc. 1995 Long-Term Incentive Plan (the "Plan") of up to 300,000
shares of the Company's Common Stock, $.01 par value (the "Plan Shares"), as
contemplated in the to the Registration Statement on Form S-8 and the Exhibits
thereto to be filed by the Company with the Securities and Exchange Commission
(the "SEC"), under the 1933 Act, as amended, on June 14, 1995 (the "Registration
Statement"). It is our opinion that:
1. All requisite action, other than any action on the part of the
proposed offerees, to make valid the proposed transactions
will have been taken when (i) the Registration Statement has
been filed with the SEC and has become effective and (ii) the
Company has complied with the state securities or "blue sky"
laws with respect to the offer and sale of the Plan Shares.
2. Upon completion of the foregoing steps, the Plan Shares, when
(i) the purchase price therefor has been paid to the Company
and (ii) the same shall have been acquired as contemplated in
the Registration Statement, will be validly issued, fully
paid, and non-assessable.
Consent is hereby given to the use of this opinion as part of
the Registration Statement.
Very truly yours,
SNELL & WILMER L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the CyCare Systems, Inc. 1995 Long-Term Incentive Plan of our
report dated February 17, 1995, with respect to the consolidated financial
statements of CyCare Systems, Inc. included in its Annual Report (Form 10-K) for
the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Phoenix, Arizona
June 14, 1995
