As Filed With The Securities and Exchange Commission
on December 19, 1997, Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
13-3152648
(I.R.S. Employer Identification No.)
200 NORTH WESTLAKE BOULEVARD, SUITE 202, WESTLAKE VILLAGE, CALIFORNIA 91362
(Address of Principal Executive Offices) (Zip Code)
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC. 1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
RONALD E. WITTMAN, CHIEF FINANCIAL OFFICER
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC.
200 NORTH WESTLAKE BOULEVARD, SUITE 202, WESTLAKE VILLAGE, CALIFORNIA 91362
(Name and Address of Agent for Service)
(805) 381-2700
(Telephone Number, Including Area Code, of Agent for Service)
------------------
Copies to:
MURRAY MARKILES, ESQ.
TROOP MEISINGER STEUBER & PASICH, LLP
10940 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 824-7000
------------------
CALCULATION OF REGISTRATION FEE
===============================================================================
Title Of Amount To Proposed Proposed Amount of
Securities To be Registered Maximum Maximum Registration
be Registered Offering Aggregate Fee
Price Per Offering
Share(1) Price(1)
- -------------------------------------------------------------------------------
Common Stock 350,000 $8.00 $2,800,000 $826
===============================================================================
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c). On December 16, 1997, the average of the bid and ask price of
the Registrant's Common Stock on the NASDAQ SmallCap Market was $8.00 per
share.
<PAGE>
PART I
PROSPECTUS
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC.
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
350,000 SHARES ISSUABLE UNDER THE
1997 STOCK INCENTIVE PLAN
OF
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC.
200 NORTH WESTLAKE BOULEVARD, SUITE 202
WESTLAKE VILLAGE, CALIFORNIA 91362
(805) 381-2700
______________________________________________________
THE SHARES DESCRIBED HEREIN WILL BE SOLD
UNDER THE 1997 STOCK INCENTIVE PLAN
AS DESCRIBED HEREIN. PARTICIPATION IN THE
1997 STOCK INCENTIVE PLAN IS OFFERED AS SET FORTH HEREIN
TO CERTAIN KEY EMPLOYEES AND ELIGIBLE DIRECTORS, OFFICERS AND CONSULTANTS
OF DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC.
______________________________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED
OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_______________________________________________________
THE DATE OF THIS DOCUMENT IS DECEMBER 19, 1997.
<PAGE>
AVAILABLE INFORMATION
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC., formerly EDUDATA CORPORATION (herein
referred to both as the "Registrant" and as the "Company"), has filed with the
Securities and Exchange Commission (the "Commission"), Washington, D.C., a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
securities described in this document. This document does not contain all the
information set forth in the Registration Statement, certain items of which are
contained in schedules and exhibits to the Registration Statement, as permitted
by the rules and regulations of the Commission.
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Commission. Such
reports and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street N.W., Washington, D.C. 20549; Everett McKinley Dirksen Building, 219 S.
Dearborn Street, Chicago, Illinois 60604; and Federal Building, 26 Federal
Plaza, New York, New York 10278. Copies of such material can be obtained from
the Public Reference Section of the Commission, Room 1024, 450 Fifth Street
N.W., Washington, D.C. 20549, at prescribed rates.
TABLE OF CONTENTS
Page
General Information and Purpose 4
Administration 4
Eligibility 5
Common Stock Covered by the Plan 5
Terms and Conditions of Options Granted under the Plan 5
Terms and Conditions of SARs Granted Under the Plan 6
Terms and Conditions of Stock Bonuses and Rights to Purchase
Restricted Stock Granted Under the Plan 7
Termination of Employment Services 8
Withholding Taxes 9
Changes in Capital Structure 9
Merger or Acquisition of the Company 9
Restrictions on Transfer of Option Rights 9
Compliance with Securities Laws 10
Employment 10
Amendment of the Plan 10
Additional Information 10
Certain United States Federal Income Tax Considerations 11
Glossary 12
NO PERSON HAS BEEN AUTHORIZED BY THE COMPANY TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS DOCUMENT IN CONNECTION
WITH THE SECURITIES DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS DOCUMENT DOES NOT CONSTITUTE AN OFFERING IN ANY STATE IN WHICH
AN OFFER OR SOLICITATION IS NOT AUTHORIZED BY THE LAWS THEREOF.
NEITHER THE DELIVERY OF THIS DOCUMENT NOR ANY SALES MADE IN CONNECTION HEREWITH
SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THE COMPANY MAKES
NO REPRESENTATION OR WARRANTY AS TO THE FUTURE MARKET VALUE OF ANY SHARES
ISSUED IN ACCORDANCE WITH THE PROVISIONS OF THE DENTAL/MEDICAL DIAGNOSTIC
SYSTEMS, INC. 1997 STOCK INCENTIVE PLAN.
Page 3
<PAGE>
____________________________
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
____________________________
This document is a summary of the principal provisions of the DENTAL/MEDICAL
DIAGNOSTIC SYSTEMS, INC. 1997 Stock Incentive Plan (the "Plan") and the rights
which have been or may be granted under the Plan. Please note that this is a
summary and therefore it is qualified in its entirety by reference to the text
of the Plan. To facilitate your reading, we have included a glossary of
certain key terms at the end of this document. To obtain additional
information about the Plan and its administrators or a copy of the Plan, please
contact DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC., 200 North Westlake Boulevard,
Suite 202, Westlake Village, California 91362, (805) 381-2700, Attention:
Chief Financial Officer or Secretary. Such information may be requested orally
or in writing and will be supplied free of charge.
GENERAL INFORMATION AND PURPOSE
The purpose of the Plan is to attract, retain and motivate certain key
employees, directors, officers and consultants of DENTAL/MEDICAL DIAGNOSTIC
SYSTEMS, INC., a Delaware corporation, by giving them incentives which are
linked directly to increases in the value of the common stock of the Company,
par value $.01 per share (the "Common Stock"). Incentives under the Plan may
take the form of Options, Stock Bonuses, Rights to Purchase Restricted Stock,
Re-Load Options or SARs (collectively, "Option Rights"), or a combination of
the foregoing, all of which are described below.
Options to purchase Common Stock granted under the Plan ("Options") may either
be options intended to qualify as "Incentive Stock Options," "Non-statutory
Options" or "Re-Load Options." The Company intends that any stock appreciation
rights ("SARs") granted under the Plan will comply with the requirements of
Rule 16b-3 and any further rules promulgated in substitution therefor under the
Securities Exchange Act of 1934 (the "Exchange Act"), during the term of the
Plan.
The Plan was adopted by the Board of Directors of the Company effective as of
February 5, 1997, subject to the approval of the Plan by the shareholders of
the Company, and qualification of the Plan with the California Department of
Corporations. A majority of the Company's shareholders approved the Plan on
March 24, 1997 at the Annual Meeting of the Shareholders.
The Plan will terminate on March 24, 2007, unless terminated earlier by the
Company's Board of Directors. The termination of the Plan before March 24,
2007 will have no effect on the Option Rights outstanding on the date of such
termination.
ADMINISTRATION
The Plan may be administered either by the Board of Directors or by a committee
appointed by the Board of Directors of the Company consisting of at least two
Non-Employee Directors (the "Committee") (the party administering the Plan
shall be hereinafter referred to as the "Plan Administrator"). The Committee
serves at the pleasure of the Board of Directors of the Company, and the entire
Committee or any of its members may be removed or replaced at the discretion of
the Board.
The Plan Administrator has the sole discretion and authority, consistent with
the provisions of the Plan, to choose the persons to whom Option Rights will be
granted (hereinafter called the "Grantee"), and the nature of such grants.
Subject to the provisions of the Plan, the Plan Administrator has the authority
to interpret the Plan and to make all other determinations and to take all
actions necessary or advisable for the proper administration of the Plan.
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<PAGE>
ELIGIBILITY
The Plan provides that Incentive Stock Options and Stock Appreciation Rights
appurtenant thereto may be granted only to directors who are employed by the
Company and officers and employees of the Company. Option Rights other than
Incentive Stock Options and Stock Appreciation Rights appurtenant thereto may
be granted to directors, officers, employees and consultants of the Company.
No person shall be eligible for the grant of an Incentive Stock Option if, at
the time of grant, such person owns (or is deemed to own pursuant to Section
424(d) of the Internal Revenue Code of 1986, as amended (the "Code") stock
possessing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or of any of its affiliates unless (i) the
exercise price of such Incentive Stock Option is at least one hundred ten
percent (110%) of the fair market value of the Common Stock at the date of
grant, and (ii) such Incentive Stock Option is not exercisable after the
expiration of five years from the date of its grant.
COMMON STOCK COVERED BY THE PLAN
Three hundred and fifty thousand shares of the Company's authorized but
unissued Common Stock are reserved and available for issuance under the Plan.
No fees, commissions or other charges will be paid in connection with the
issuance of such shares of Common Stock. The stock of the Company is listed on
both the NASDAQ SmallCap Market, under the symbol DMDS, and the Boston Stock
Exchange, under the symbol DMD.
Solely for purposes of determining the number of shares of Common Stock
reserved and available for issuance under the Plan, each SAR granted without
relation to an Option is treated as an Option. The shares covered by the
unexercised portion of any terminated, surrendered or expired Option Rights
granted under the Plan will become available again for grant of Option Rights
under the Plan; PROVIDED, HOWEVER, that if the Company receives shares in
payment of all or a portion of the purchase price for any shares, or in payment
of any tax liabilities (see "WITHHOLDING TAXES"), such shares will not again be
available for issuance under the Plan.
TERMS AND CONDITIONS OF OPTIONS GRANTED UNDER THE PLAN
OPTIONS. Options give their recipients the right at some specified date or
dates in the future to buy stock at a price that is set at the time the Option
is granted. As indicated above, Options may be either Incentive Stock Options,
Non-statutory Options or Re-Load Options.
STOCK OPTION AGREEMENT. All Options granted under the Plan must be evidenced
by a stock option agreement between the Grantee and the Company. The various
stock option agreements entered into under the Plan need not be identical and
may include any term or condition which is not inconsistent with the Plan and
which the Plan Administrator deems appropriate for inclusion.
EXERCISE PRICE. The exercise price of each Incentive Stock option shall be not
less than one hundred percent (100%) of the Fair Market Value of the Common
Stock subject to the Option on the date the Option is granted. Notwithstanding
the foregoing, the exercise price of an Option for which an exemption from the
qualification requirements of the California Corporate Securities Law of 1968,
as amended (the "CCSL"), is unavailable, and which is granted to a person who
owns stock possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company, shall be at least one hundred ten
percent (110%) of the Fair Market Value of the Common Stock at the date of
grant.
EXERCISE OF OPTIONS. The Plan Administrator has the discretion to specify the
time periods during which Options become exercisable and the number of shares
that may be exercised during each such period, PROVIDED HOWEVER, that, in the
case of an Option for which an exemption from the qualification requirements of
the CCSL is unavailable, the vesting provisions must provide for vesting of at
least twenty percent (20%) per year of the total number of shares subject to
the Option from the date the Option was granted; and PROVIDED, FURTHER, that
Options granted to officers, directors or consultants of the Company may vest
at a rate of less
Page 5
<PAGE>
than twenty percent (20%) per year. The expiration date of each Option is
fixed by the Plan Administrator, but may not in any case be more than ten years
from the date of grant.
If an Incentive Stock Option is granted to a Grantee owning stock possessing
more than 10% of the total combined voting power of all classes of stock of the
Company or its subsidiaries or parent corporations, such Incentive Stock Option
must be exercised within five years of the date on which it was granted.
Subject to certain exceptions discussed below (see "TERMINATION OF EMPLOYMENT
SERVICES"), an Option may not be exercised if the Grantee is no longer employed
by or serving the Company or if the Grantee has not continuously served the
Company since the grant of such Option.
The Plan provides that no Incentive Stock Options may be granted to any
individual to the extent the aggregate fair market value of the stock (based on
the market value of the stock at the time of the grant), with respect to which
incentive stock options are exercisable for the first time in any one calendar
year under the Plan and all related plans of the Company or of any subsidiary
or parent, exceeds $100,000. Options granted to a Grantee in excess of the
$100,000 limit will be Non-statutory Options.
The exercise price of Common Stock acquired pursuant to the exercise of an
Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (1) in cash at the time the Option is exercised, or (2) at
the discretion of the Plan Administrator, either at the time of the grant or
exercise of the Option, (a) by delivery to the Company of other shares of
Common Stock, (b) according to a deferred payment or other arrangement (which
may include, without limiting the generality of the foregoing, the use of other
shares of Common Stock) with the person to whom the Option is granted or to
whom the Option is transferred pursuant to the terms of the Plan, or (c) in any
other form of legal consideration that may be acceptable to the Plan
Administrator.
In the case of any deferred payment arrangement, interest shall be payable at
least annually and shall be payable at the minimum rate of interest necessary
to avoid the imputation of interest, under the applicable provisions of the
Code and Treasury Regulations.
RE-LOAD OPTIONS. The Plan Administrator may include as part of any Option a
provision entitling the Grantee to a further Option (a "Re-Load Option") in the
event the Grantee exercises the Option, in whole or in part, by surrendering
other shares of Common Stock. Any such Re-Load Option may be an Incentive
Stock Option or a Non-statutory Stock Option, as the Plan Administrator may
designate at the time of the grant of the original Option; PROVIDED, HOWEVER,
that the designation of any Re-Load Option as an Incentive Stock Option shall
be subject to the one hundred thousand dollar ($100,000) annual limitation on
exercisability of Incentive Stock Options described in the Plan. There shall
be no Re-Load Options on a Re-Load Option. Any such Re-Load Option shall be
subject to the availability of sufficient shares under the Plan and shall be
subject to such other terms and conditions as the Plan Administrator may
determine which are not inconsistent with the express provisions of the Plan
regarding the terms of the options.
TERMS AND CONDITIONS OF SARS GRANTED UNDER THE PLAN
SARS. SARs give their recipients the value of right to receive, upon exercise,
the amount by which the value of a share of Common Stock has appreciated
between the date on which the SAR was granted and the date on which it was
exercised. There are three types of Stock Appreciation Rights which shall be
available for issuance under the Plan: Tandem Rights, Concurrent Rights and
Independent Rights.
(i) TANDEM STOCK APPRECIATION RIGHTS. Tandem Rights will be
granted appurtenant to an Option and will require the holder to elect between
the exercise of such Option for shares of Common Stock and the surrender, in
whole or in part, of such Option for an appreciation distribution payable in
cash in an amount equal to (a) the aggregate Fair Market Value (on the date of
Option surrender) of the number of vested shares of Common Stock under the
Option (or portion thereof) being surrendered on such date, less (b) the
aggregate exercise price of such vested shares of Common Stock. Tandem Rights
may be tied to either Incentive Stock Options or Non-statutory Stock Options.
Each such right shall, except as specifically set forth below, be subject to
the same terms and conditions applicable to the particular Option to which it
pertains.
Page 6
<PAGE>
(ii) CONCURRENT STOCK APPRECIATION RIGHTS. Concurrent Rights
will be granted appurtenant to an Option and may apply to all or any portion of
the shares of Common Stock subject to such Option and will be automatically
exercised at the same time such Option is exercised with respect to the
particular shares of Common Stock to which the Concurrent Right pertains. The
appreciation distribution, payable in cash, to which the holder of such
Concurrent Rights shall be entitled upon exercise of the related Option shall
be an amount equal to (a) the aggregate Fair Market Value (on the date of
Option exercise) of the number of vested shares of Common Stock under the
Option (or portion thereof) being exercised on such date and with respect to
which such Concurrent Rights apply, less (b) the aggregate exercise price paid
for such vested shares of Common Stock. Concurrent Rights may be tied to any
or all of the shares of Common Stock under any Incentive Stock Option or Non-
statutory Stock Option. A Concurrent Right shall, except as specifically set
forth below, be subject to the same terms and conditions applicable to the
particular Option grant to which it pertains.
(iii) INDEPENDENT STOCK APPRECIATION RIGHTS. Independent
Rights shall be granted independently of any Option and will entitle the holder
upon exercise thereof to an appreciation distribution payable in cash in an
amount equal to (a) the aggregate Fair Market Value (on the date of the
exercise of the Independent Right) of a number of shares of Common Stock equal
to the number of vested share equivalents with respect to which the holder is
exercising the Independent Right on such date, less (b) the aggregate Fair
Market Value (on the date of the grant of the Independent Right) of such number
of shares of Common Stock. Independent Rights shall, except as specifically
set forth below, be subject to the same terms and conditions applicable to
Nonstatutory Stock Options. They shall be denominated in share equivalents.
TERMS APPLICABLE TO STOCK APPRECIATION RIGHTS GENERALLY.
- -------------------------------------------------------
(i) To exercise any outstanding Stock Appreciation Right, the
holder must provide written notice of exercise to the Company in compliance
with the provisions of the instrument evidencing such right.
(ii) If a Stock Appreciation Right is granted to an individual
who is at the time subject to Section 16(b) of the Exchange Act, the instrument
of grant shall incorporate all the terms and conditions at the time necessary
to assure that the subsequent exercise of such right shall qualify for the
safe-harbor exemption from short-swing profit liability provided by Rule 16b-3
promulgated under the Exchange Act (or any successor role or regulation).
(iii) No limitation shall exist on the aggregate amount of
cash payments the Company may make under the Plan in connection with the
exercise of Stock Appreciation Rights.
SAR AGREEMENT. All SARs granted under the Plan must be evidenced by an SAR
Agreement between the Grantee and the Company. Provisions of the various SAR
Agreements entered into under the Plan need not be identical and may include
any term or condition which is not inconsistent with the Plan and which the
Plan Administrator deems appropriate for inclusion, including, without
limitation, the right to impose a limitation on the amount payable in cash,
common stock, or both, upon the exercise of a SAR.
TERMS AND CONDITIONS OF STOCK BONUSES AND RIGHTS TO
PURCHASE RESTRICTED STOCK GRANTED UNDER THE PLAN
STOCK BONUSES AND RIGHTS TO PURCHASE RESTRICTED STOCK. The Plan also provides
for the grant of Stock Bonuses and Rights to Purchase Restricted Stock. Stock
Bonuses are grants of Common Stock to participants in the Plan and do not
involve the payment of a purchase price. The award of a Right to Purchase
Restricted Stock entitles a participant in the Plan to acquire shares of Common
Stock which are subject to certain voting limitations and restrictions at a
price which is lower than the fair market value of the Common Stock on the date
of the grant of such award. Each Stock Bonus or Restricted Stock Purchase
Agreement shall be approved by the Plan Administrator and be in such form and
shall contain such terms and conditions as the Plan Administrator shall deem
appropriate.
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PURCHASE PRICE OF RESTRICTED STOCK. The purchase price of shares of Common
Stock for which an exemption from the qualification requirements of the CCSL is
unavailable shall be at least eighty-five percent (85%) of the fair market
value of the Common Stock at the date of the grant or the sale; provided, if
such shares of Common Stock are granted or sold to a person who owns stock
possessing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or of any of its affiliates, the purchase
price shall be at least one hundred ten percent (110%) of the fair market value
of the Common Stock a the date of grant or sale.
The purchase price of Common Stock acquired pursuant to a Restricted Stock
Purchase Agreement shall be paid in any form of legal consideration that may be
acceptable to the Plan Administrator in its discretion. The Plan Administrator
may also award stock pursuant to a Stock Bonus Agreement in consideration for
past services actually rendered to the Company or for its benefit.
RIGHT OF REPURCHASE IN FAVOR OF THE COMPANY. Shares of Common Stock sold or
awarded under the Plan may be subject to a right to repurchase in favor of the
Company upon termination of the person to whom such shares have been sold or
awarded at a repurchase price equal to the original purchase price (or such
higher price as the Plan Administrator may determine to be appropriate). The
Plan Administrator shall provide that such rights to repurchase lapse with
respect to such purchased shares pursuant to a schedule determined by the
Board; PROVIDED, HOWEVER, that for any Stock Bonus or Restricted Stock Purchase
right for which an exemption from the qualification requirements of the CCSL is
unavailable, the Company's right to repurchase at the original purchase price
shall lapse at a minimum rate of twenty percent (20%) per year over five years
from the date the stock bonus or restricted stock purchase right was granted
and such right shall terminate to the extent not exercised within ninety days
following termination of the shareholder/purchaser.
TERMINATION OF EMPLOYMENT SERVICES
If a Grantee ceases to be employed by, or render services as an employee,
director, officer or consultant to, the Company or any of its subsidiaries for
any reason other than death or permanent disability, the Grantee may exercise
any Option Rights he or she holds, to the extent that such right was
exercisable at the date of termination, at any time within (i) 90 days after
the date of termination for Incentive Stock Options, or (ii) 30 days after the
date of termination for any Option Right not exempt from the qualification
requirements of the CCSL. Should any Option Right expire after termination and
before the end of the 30-day period, the Grantee will have no further right to
exercise such Option Rights. Absence on leave, with the approval of the
Company or any of its subsidiaries, shall not be considered an interruption of
service for any purpose of the Plan. Consequently, for the purposeof
determining the exercisability of an Option, an authorized leave of absence
will not be deemed to be an interruption in a Grantee's service to the Company.
If the Grantee's employment by, or services to, the Company are terminated as a
result of death or permanent disability, any Option Right granted to that
individual may be exercised to the extent the Option Right has not expired by
lapse of time, at any time within six months after termination (or such longer
period, not exceeding twelve months for Incentive Stock Options, may be as set
forth in a Stock Option Agreement), by the Grantee or the executors or
administrators of the Grantee's estate or by any person or persons who acquire
the Option directly from the Grantee by bequest or inheritance, as the case may
be; and assuming that the Plan is then in effect, notwithstanding the fact that
the Option Right may expire during such six-month period.
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WITHHOLDING TAXES
Upon the exercise of their Option Rights, Grantees will be responsible for the
payment of any federal, state, provincial or local income taxes that the Plan
Administrator determines are required to be paid in order for the Company or
its subsidiary, as the case may be, to claim an income tax deduction. Upon
approval ny the Plan Administrator (which may be granted or withheld in the
Plan Administrator's sole discretion), a Grantee who is not an officer or
director of the Company within the meaning of Section 16(b) of the Exchange Act
may satisfy his or her tax obligations by requiring the Company, upon exercise
of an Option Right, to withhold from the Common Stock issuable upon exercise of
the Option Right that number of shares of Common Stock having a fair market
value equal to the required tax payment.
CHANGES IN CAPITAL STRUCTURE
The existence of outstanding Option Rights will not limit the ability of the
Company to make, authorize or perform any corporate action, including, without
limitation, any or all adjustments, recapitalizations, reorganizations or other
changes in its or any other corporation's capital structure or business, any
merger or consolidation, any issuance of bonds, debentures, preferred or prior
preference stock ahead of or affecting Common Stock or rights thereof, the
dissolution or liquidation of the Company or any other corporation, or any sale
or transfer of any part of the Company's or any other corporation's assets or
business.
If the number of outstanding shares of Common Stock of the Company is increased
or decreased in number or changed into or exchanged for a different number or
kind of securities of the Company or any other corporation as a result of a
recapitalization, reclassification, stock split, combination of shares, stock
dividend or other similar event, the number and kind of securities with respect
to which Option Rights may be granted under the Plan, the number and kind of
securities as to which outstanding Option Rights may be exercised, and the
option price at which outstanding Option Rights may be exercised, may be
adjusted by the Plan Administrator.
MERGER OR ACQUISITION OF THE COMPANY
In connection with the dissolution or liquidation of the Company or a partial
liquidation involving 50% or more of the assets of the Company, a
reorganization of the Company where another entity is the survivor, a merger or
reorganization of the Company pursuant to which more than 50% of the shares of
the Company outstanding prior to such merger or reorganization is converted
into cash or into another security, a sale of over 50% of the assets of the
Company, or a similar event that the Plan Administrator determines, in its
absolute discretion, would materially alter the structure of the Company,
unless otherwise provided for in any Stock Option Agreement or SAR Agreement,
as the case may be, the Plan Administrator may in its absolute discretion, and,
upon 15 days' written notice to Grantees: (i) accelerate outstanding Option
Rights by shortening the period during which Option Rights are exercisable,
(ii) accelerate any exercise schedule to which an Option Right is subject;
(iii) arrange to have the surviving corporation grant to the Grantees
replacement options, with appropriate adjustment as to number and kind of
securities and option prices; or (iv) cancel such Option Rights upon payment to
Grantees in cash with respect to each Option Right to the extent then
exercisable (whether or not accelerated by the Plan Administrator) of an amount
which, in the absolute discretion of the Plan Administrator, is determined to
be equivalent to the difference between (x) the fair market value at the
effective time of such dissolution, liquidation, merger, reorganization, sale
or other event of the consideration that the Grantee would receive if the
Option Right had been exercised before such effective time, and (y) the
exercise price of each such Option Right.
These actions may be taken by the Plan Administrator without consideration of
any resulting income tax consequences to the Company or to the Grantee.
RESTRICTIONS ON TRANSFER OF OPTION RIGHTS
No Grantee may transfer or assign any Option Right obtained under the Plan,
except by will, or if the Grantee dies intestate, by the laws of descent and
distribution. Consequently, during the lifetime of a Grantee, such individual
is the only person who may exercise his or her rights under the Plan.
Notwithstanding the generality of the foregoing, no Grantee may create any lien
or
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otherwise encumber any right obtained under the Plan. [Further notwithstanding
the foregoing, a Non-statutory Stock Option shall be transferable pursuant to a
qualified domestic relations order satisfying the requirements of Rule 16b-3
and any administrative interpretations or pronouncements thereunder (a "QDRO"),
and shall be exercisable during the lifetime of the person to whom the Option
Right is granted only by such person or any transferee pursuant to a QDRO.]
Neither a Grantee nor his or her successor has any rights as a stockholder with
respect to any Common Stock subject to an Option Right until the right is
exercised, the exercise price is paid in full and the certificate or
certificates evidencing the shares are delivered to such person.
COMPLIANCE WITH SECURITIES LAWS
The Company is not obligated to offer or sell any shares upon exercise of an
Option Right unless the sale and issuance of such shares is in compliance with
all applicable state or local securities laws.
Any Grantee who is or becomes a director, officer or ten percent shareholder of
the Company (a "Reporting Person"), within ten days of becoming a Reporting
Person, shall file a report with the Commission on Form 3 setting forth his or
her beneficial ownership of any of the securities of the Company on the date
that he or she became a Reporting Person. Additionally, each Reporting Person
is required to file a Form 4 with the Commission within ten days following the
close of any calendar month in which there is any change in his or her
beneficial ownership of the securities of the Company, whether such change
occurs by reason of purchase, sale or any other type of transaction, including,
without limitation, any Option Right exercise. Further, each Reporting Person
is required to file a Form 5 with the Commission within 45 days following the
close of the Company's fiscal year setting forth the Reporting Person's
transactions involving the Company's securities during the just closed fiscal
year. If a Grantee owns more than five percent of the outstanding Common Stock
of the Company, a material change in his or her shareholdings will require an
additional filing under the Williams Act on Schedule 13D.
EMPLOYMENT
Nothing in the Plan confers on a Grantee any right to employment or service or
to continue in the employment or the service of the Company or any subsidiary
of the Company. Further, nothing in the Plan will prevent the Company or any
subsidiary from terminating the Grantee's employment or service at any time.
Participation in the Plan by a Grantee is voluntary.
AMENDMENT OF THE PLAN
The Board may amend the Plan at any time if the proposed amendment does not
have a materially adverse effect on any outstanding Option Rights or any
unexercised portions thereof. Notwithstanding the generality of the foregoing,
amendments may affect then outstanding Option Rights or any unexercised
portions thereof in order to conform the Plan and Option Rights granted under
the Plan to any changes in the Code relating to Incentive Stock Options or
conform to any Treasury Regulations issued from time to time relating thereto
or to conform the Plan and SARs granted under the Plan to any changes in the
Exchange Act relating to SARs.
ADDITIONAL INFORMATION
Information concerning: (i) the number of persons eligible to participate in
the Plan, (ii) the number of persons actually participating in the Plan, (iii)
the number of shares reserved for issuance under Option Rights not yet granted,
(iv) the number of shares covered by outstanding Options, (v) the exercise
price and expiration date of outstanding Options and (vi) the number of shares
issued upon exercise of Options, will be included in the Company's Annual
Report to Shareholders or proxy statement, both of which will be delivered to
all participants in the Plan free of charge. Such information is incorporated
herein by this reference. Also incorporated herein by reference are all other
reports filed by the Company pursuant to 13(a) or 15(d) of the Exchange Act and
any description of the Company's Common Stock found in any Registration
Statement, and any amendments thereto, filed with the Securities and Exchange
Commission concerning such stock. Participants in the Plan may obtain copies
of such documents free of charge, upon
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oral is written request made to the Company at the address or phone number set
forth in the introductory paragraph to this document.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following general discussion of the principal tax considerations is based
upon the tax laws and regulations of the United States existing as of the date
hereof, all of which are subject to modification at any time. Each participant
in the Plan is urged to consult with his or her own tax adviser with respect to
the tax consequences of the grant or exercise of Options Rights and the
disposition of shares acquired under the Plan, as those consequences relate to
the employee's own particular circumstances. In particular, the discussion
which follows does not apply to persons who are not citizens or residents of
the United States and, therefore, such persons are strongly urged to consult
with their own tax advisers with respect to the tax implications of the grant
or exercise of an option and the disposition of shares acquired under the laws
of the country in which they reside or are citizens.
The Plan does not constitute a qualified retirement plans under Section 401(a)
of the Code (which generally covers trusts forming part of a stock bonus,
pension or profit-sharing plan funded by the employer and/or employee
contributions which are designed to provide retirement benefits to participants
under certain circumstances) and is not subject to the Employer Retirement
Income Security Act of 1974 (the pension reform law which regulates most types
of privately funded pension, profit-sharing and other employee benefit plans).
CONSEQUENCES TO KEY EMPLOYEES AND DIRECTORS: INCENTIVE STOCK OPTIONS. No
income is recognized for federal income tax purposes by a Grantee at the time
an Incentive Stock Option is granted, and, except as discussed below, no income
is recognized by a Grantee upon his or her exercise of an Incentive Stock
Option. If the Grantee makes no disposition of the shares received upon
exercise within two years from the date the option was granted and one year
from the date the option is exercised, the Grantee will recognize long-term
capital gain or loss when he or she disposes of his or her shares. Such gain
or loss will be measured by the difference between the exercise price of the
option and the amount received for the shares at the time of disposition.
If the Grantee disposes of shares acquired upon exercise of an Incentive Stock
Option within two years after being granted the option or within one year after
acquiring the shares, any amount realized from such disqualifying disposition
will be taxable as ordinary income in the year of disposition to the extent
that the lesser of (A) the fair market value of the shares on the date the
Incentive Stock Option was exercised or (B) the fair market value at the time
of such disposition exceeds the Incentive Stock Option exercise price. Any
amount realized upon disposition in excess of the fair market value of the
shares on the date of exercise will be treated as long-term or short-term
capital gain, depending upon whether the shares have been held for more than
one year.
The use of stock acquired through exercise of an Incentive Stock Option to
exercise an Incentive Stock Option will constitute a disqualifying disposition
if the applicable holding period requirement has not been satisfied.
For alternative minimum tax purposes, the excess of the fair market value of
the stock on the date of exercise over the exercise price of the Incentive
Stock Option is included in computing alternative minimum taxable income.
CONSEQUENCES TO KEY EMPLOYEES AND DIRECTORS: OTHER RIGHTS. No income is
recognized by a holder of Non-statutory Options or SARs (collectively referred
to in this Subsection only as the "Rights") at the time Rights are granted
under the Plan. In general, at the time cash is transferred or shares are
issued to a holder pursuant to exercise of Rights, the holder will recognize
ordinary income equal to the excess of the sum of cash and the fair market
value of the shares on the date of exercise over the exercise price.
A holder will recognize gain or loss on the subsequent sale of shares acquired
upon exercise of Rights in an amount equal to the difference between the
selling price and the tax basis of the shares, which will include the price
paid plus the amount included in the holder's income by reason of the exercise
of the Rights. Provided the shares are held as a capital asset, any gain or
loss will be long-term or short-term capital gain or loss depending upon
whether the shares have been held for more than one year.
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CONSEQUENCES TO THE COMPANY: INCENTIVE STOCK OPTIONS. The Company (or the
subsidiary of the Company which employs the Grantee) will not be allowed a
deduction for federal income tax purposes at the time of the grant or exercise
of an Incentive Stock Option. There are also no federal income tax
consequences to the Company as a result of the disposition of shares acquired
upon exercise of an Incentive Stock Option if the disposition is not a
disqualifying disposition. At the time of a disqualifying disposition by a
Grantee, the Company (or the subsidiary or part of the Company which employs
the Grantee) will be entitled to a deduction for the amount received by the
Grantee to the extent that such amount is taxable to the Grantee as ordinary
income.
CONSEQUENCES TO THE COMPANY: OTHER RIGHTS. The Company (or the subsidiary of
the Company which employs the Grantee) will be entitled to a deduction for
federal income tax purposes in the year and in the same amount as the Grantee
is considered to have realized ordinary income in connection with the exercise
of other Rights if provision is made for withholding of federal income taxes,
where applicable.
GLOSSARY
For the purposes of this summary the following terms have the following
meanings:
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Company's Common Stock, par value $0.01 per share.
"COMPANY" means DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC., a Delaware
corporation.
"GRANTEES" means holders of Option Rights under the Plan.
"INCENTIVE STOCK OPTIONS" are Options which in return for special tax treatment
are subject to various technical requirements. Incentive Stock Options are
defined in Section 422 of the Code.
"NON-STATUTORY OPTIONS" are Options which do not receive special tax treatment
and consequently their issuance is subject to fewer technical requirements.
"OPTION RIGHTS" means any of the Options, Stock Bonuses, Rights to Purchase
Restricted Stock, SARs and Re-Load Options, or any combination thereof, granted
by the Company pursuant to the Plan.
"OPTIONS" means options to purchase shares of the Common Stock of the Company
granted under the Plan.
"PLAN" means the DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC. 1997 Stock Incentive
Plan.
"RIGHT TO PURCHASE RESTRICTED STOCK" means an award of an entitlement to
purchase shares of Common Stock under the Plan which are subject to certain
voting limitations and restrictions at a price which is lower than fair market
value of the Common Stock on the date of grant.
"SARS" means stock appreciation rights. SARs are described on page 6 hereof.
"STOCK BONUS" means a grant of Common Stock under the Plan which does not
involve the payment of a purchase price.
____________
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(a) Registrant's Annual Report on Form 10-K for the ten-month period
ended December 31, 1996;
(b) Registrant's Report on Form 10-QSB for the quarters ended March
31, 1997, June 30, 1997 and September 30, 1997;
(c) The information under the caption "DESCRIPTION OF SECURITIES" on
Pages 43 through 46 of Registrant's Registration Statement on Form
SB-2 (Registration No. 333-22507).
All documents subsequently filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the filing
of a post-effective amendment which indicates that all securities offered 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
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The securities to be offered are registered under Section 12 of the
Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Registrant's Certificate of Incorporation and its Bylaws provide for the
indemnification by the Registrant of each director, officer and employee of the
Registrant to the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or may hereafter be amended. Section 145 of the
Delaware General Corporation Law provides in relevant part that a corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such person's conduct
was unlawful.
In addition, Section 145 provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving
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at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper. Delaware law further provides that nothing in the
above-described provisions shall be deemed exclusive of any other rights to
indemnification or advancement of expenses to which any person may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
Registrant's Certificate of Incorporation also provides that a director of
the Registrant shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director.
Section 102(b)(7) of the Delaware General Corporation Law provides that a
provision so limiting the personal liability of a director shall not eliminate
or limit the liability of a director for, among other things: breach of the
duty of loyalty; acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law; unlawful payment of
dividends; and transactions from which the director derived an improper
personal benefit.
The Registrant has entered into separate but identical indemnity
agreements (the "Indemnity Agreements") with each director of the Registrant
and certain of its officers (the "Indemnitees"). Pursuant to the terms and
conditions of the Indemnity Agreements, the Registrant has agreed to indemnify
each Indemnitee against any amounts which he or she becomes legally obligated
to pay in connection with any claim against him or her based upon any action or
inaction which he or she may commit, omit or suffer while acting in his or her
capacity as a director and/or officer of the Registrant or its subsidiaries;
provided, however, that Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Registrant and, with respect to any criminal action, had no reasonable
cause to believe Indemnitee's conduct was unlawful. In addition, the
Registrant has obtained insurance policies on behalf of its directors and
officers, as permitted by its Certificate of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC. 1997 STOCK
INCENTIVE PLAN.
5.1 Opinion of Troop Meisinger Steuber & Pasich, LLP regarding validity
of securities.
23.1 Consent of Troop Meisinger Steuber & Pasich, LLP (included in Exhibit
5.1).
23.2 Consent of Coopers & Lybrand LLP.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
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(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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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,
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 the 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, Registrant will, unless in the
opinion of the counsel the matter has been settled by controlling precedent,
submit to the appropriate jurisdiction the question of 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on this 19 day of
December, 1997.
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC.
(Registrant)
By:/s/ Robert H. Gurevitch
--------------------------------------------
ROBERT H. GUREVITCH, CHIEF EXECUTIVE OFFICER
(Principal Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Robert H. Gurevitch and Ronald E. Wittman, and each of them, as his or her true
and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-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 foregoing, 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 either of them, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert H. Gurevitch Chairman of the Board, Chief December 19, 1997
- ----------------------- Executive Officer, President
Robert H. Gurevitch and Secretary
/s/ Jack D. Preston Director December 19, 1997
- -----------------------
Jack D. Preston
/s/ Marvin H. Kleinberg Director December 19, 1997
- -----------------------
Marvin H. Kleinberg
/s/ Ronald E. Wittman Chief Financial Officer, December 19, 1997
- ----------------------- Controller and Vice
Ronald E. Wittman President
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EXHIBIT INDEX
Sequentially
Exhibit No. Exhibit Description Numbered Page
- ----------- ------------------- -------------
4.1 DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC.
1997 Stock Incentive Plan.
5.1 Opinion of Troop Meisinger Steuber & Pasich
LLP regarding validity of securities.
23.1 Consent of Troop Meisinger Steuber & Pasich
(included in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand, LLP
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[LETTERHEAD OF TROOP MEISINGER STEUBER & PASICH]
December 19, 1997
DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC.
200 North Westlake Boulevard, Suite 202
Westlake Village, CA 91362
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") to which this letter is attached as Exhibit
5.1 filed by DENTAL/MEDICAL DIAGNOSTIC SYSTEMS, INC., a Delaware corporation
(the "Company"), in order to register under the Securities Act of 1933, as
amended (the "Act"), 350,000 shares of Common Stock, par value $0.01 per share
(the "Shares"), of the Company issuable pursuant to the Company's 1997 Stock
Incentive Plan (the "Plan").
We are of the opinion that the Shares have been duly authorized and
upon issuance and sale in conformity with and pursuant to the Plan, the Shares
will be validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Prospectus
constituting a part thereof.
Respectfully submitted,
/s/ TROOP MEISINGER STEUBER & PASICH, LLP
TROOP MEISINGER STEUBER & PASICH, LLP
