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As filed with the Securities and Exchange Commission on April 22, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DVI, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-2722773
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
500 HYDE PARK 18901
DOYLESTOWN, PENNSYLVANIA (Zip code)
(Address of principal executive offices)
1996 STOCK OPTION PLAN
(Full title of the plan)
MICHAEL A. O'HANLON
500 HYDE PARK
DOYLESTOWN, PENNSYLVANIA 18901
(215) 345-6600
(Name, address and telephone number,
including area code, of agent for service)
With a copy to:
JOHN A. HEALY, ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8281
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Offering Amount of
Title of Securities to be Registered Registered (1) Per Share (2) Price (2) Registration Fee (2)
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<S> <C> <C> <C> <C>
Common Stock, par value $.005 per share 1,500,000 shares $24.75 $37,125,000 $10,951.88
==================================================================================================================================
</TABLE>
(1) Represents the maximum number of shares that may be acquired under the
Registrant's 1996 Stock Option Plan (the "Plan")
(2) Calculated for purposes of computing the registration fee only. Pursuant to
Rule 457(h) under the Securities Act of 1933, the Proposed Maximum Offering
Price Per Share is based upon $24.75, which is the average of the high and
low prices of the Registrant's Common Stock reported in the consolidated
reporting system of the New York Stock Exchange on April 17, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933, as amended, and the introductory Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission by DVI, Inc. (the "Company") are incorporated as of their respective
dates in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for its fiscal year ended
June 30, 1997, as amended by Form 10-K/A-1 dated October 28, 1997 (the "1997
10-K").
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997 and December 31, 1997.
(c) The Company's Current Report(s) on Form 8-K dated October 29, 1997.
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the 1997 10-K.
(e) The description of the Common Stock, $.005 par value, of the Company
contained in the Company's Registration Statement on Form 8-A filed March 27,
1992, and incorporating by reference the information contained in the Company's
Prospectus dated May 14, 1992, contained in the Company's Registration Statement
on Form S-2 (File No. 33-46664), together with all reports and other documents
filed with the Commission for the purpose of updating or otherwise amending that
description after the date of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware
(the "General Corporation Law") provides, in general, that a corporation shall
have power to 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 he is or was
a director or officer of the corporation. Such indemnity may be against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding, if the indemnitee acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action or proceeding, the indemnitee must not have
had reasonable cause to believe his conduct was unlawful.
Section 145(b) of the General Corporation Law provides, in general, that
a corporation shall have power to 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 he is or was a director or officer of the corporation
against expenses (including attorney's fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation.
Section 145(g) of the General Corporation Law provides in general that a
corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director or officer of the corporation against any
liability asserted against and incurred by him in any such capacity, or arising
out of his status as such, whether or not the corporation would have the power
to indemnify him against such liability under the provisions of the law.
The Company's By-Laws require the Company to indemnify each of its
directors, officers and employees to the fullest extent permitted by law in
connection with any actual or threatened action or proceeding arising out of his
service to the Company or to other organizations at the Company's request.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<S> <C>
3.1* -- Certificate of Incorporation of the Company
3.2* -- By-Laws of the Company
4.1* -- Specimen of stock certificate for DVI's Common Stock, par value $.005 per share
5.1 -- Opinion of counsel regarding legality of the Common Stock being registered
23.1 -- Consent of counsel (included in Exhibit 5.1)
23.2 -- Consent of Deloitte & Touche LLP
24 -- Power of Attorney (see p. 5)
</TABLE>
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* Filed as an Exhibit to the Company's Registration Statement on Form S-3
(Registration No. 33-84604) and incorporated herein by reference.
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall
not apply to information contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 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
of 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 Act, each filing of the registrant's annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of the employee benefit plan's annual report
pursuant to section 15(d) or the Exchange Act) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, 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 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.
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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 Doylestown, Commonwealth of Pennsylvania on April 16,
1998.
DVI, INC.
By: /s/ Michael A. O'Hanlon
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Name: Michael A. O'Hanlon
Title: Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of DVI, Inc. hereby severally constitute Michael A. O'Hanlon and
Steven R. Garfinkel and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement filed herewith and
any and all amendments to said Registration Statement (including without
limitation any amendments filed pursuant to Section 462(b) of the Securities Act
of 1933), and generally to do all such things in our names and in our capacities
as officers and directors to enable DVI, Inc. to comply with the provisions of
the Securities Act of 1933, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signature as they may be signed
by our said attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
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 DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Michael A. O'Hanlon Chief Executive Officer, April 16, 1998
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MICHAEL A. O'HANLON President and Director
/s/ Steven R. Garfinkel Senior Vice President and April 16, 1998
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STEVEN R. GARFINKEL Chief Financial Officer
(Principal Financial Officer)
/s/ John P. Boyle Vice President and Chief April 16, 1998
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JOHN P. BOYLE Accounting Officer
(Principal Accounting
Officer)
/s/ Gerald L. Cohn Director April 16, 1998
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GERALD L. COHN
/s/ William S. Goldberg Director April 16, 1998
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WILLIAM S. GOLDBERG
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ John E. McHugh Director April 16, 1998
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JOHN E. McHUGH
/s/ Nathan Shapiro Director April 16, 1998
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NATHAN SHAPIRO
/s/ Harry T.J. Roberts Director April 16, 1998
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HARRY T.J. ROBERTS
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page
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No.
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<S> <C> <C>
3.1* Certificate of Incorporation of the Company
3.2* By-Laws of the Company
4.1* Specimen of stock certificate for DVI's Common
Stock, par value $.005 per share
5.1 Opinion of counsel regarding the legality of the
Common Stock being registered
23.1 Consent of counsel (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24 Power of attorney (see p. 5)
</TABLE>
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* Filed as an Exhibit to the Company's Registration Statement on Form S-3
(Registration No. 33-84604) and incorporated herein by reference.
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Exhibit 5.1
[LETTERHEAD OF ROGERS & WELLS LLP]
April 22, 1998
DVI, Inc.
500 Hyde Park
Doylestown, Pennsylvania
Ladies and Gentlemen:
We have acted as special counsel to DVI, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of
the Company's Registration Statement on Form S-8 (as the same may be amended or
supplemented from time to time, the "Registration Statement") with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, covering 1,500,000 shares (the "Shares") of common stock,
par value $.005 per share, which have been reserved by the Company for issuance
upon exercise of stock options previously granted or that may be granted in the
future under the Company's 1996 Stock Option Plan (the "Plan").
In rendering the opinion expressed herein, we have examined
the Registration Statement in the form to be filed with the Commission on or
about the date hereof. In addition, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary, including
the Certificate of Incorporation and By-laws of the Company, and the corporate
proceedings of the Company relating to the authorization and issuance of the
Shares. As to the factual matters relevant to the opinion set forth below we
have, with your permission, relied upon certificates of officers of the Company
and public officials.
Based upon the foregoing, and such examination of law as we
have deemed necessary, we are of the opinion that the Shares have been duly
authorized and, upon issuance and delivery of the Shares by the Company
upon the exercise of the stock options and payment of the exercise price
thereof in accordance with the terms and provisions of the Plan, will be
validly issued, fully paid and nonassessable.
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We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this consent,
we do not admit that we are within the category of persons whose consent is
required under Section 7 of the 1933 Act, or the Rules and Regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ Rogers & Wells LLP
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 dated April 21, 1998, of DVI, Inc. relating to the 1996 Stock Option
Plan, of our report dated July 31, 1997, appearing in and incorporated by
reference in the Annual Report on Form 10-K of DVI, Inc. for the year ended
June 30, 1997, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
April 21, 1998
