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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 16, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CONTINUCARE CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 59-2716023
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(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
100 S.E. 2ND STREET, 36TH FLOOR, MIAMI, FLORIDA 33131
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
CONTINUCARE CORPORATION AMENDED AND RESTATED 1995 STOCK OPTION PLAN
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(FULL TITLE OF THE PLAN)
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CHARLES M. FERNANDEZ
CHIEF EXECUTIVE OFFICER AND PRESIDENT
CONTINUCARE CORPORATION
100 SOUTHEAST SECOND STREET, 36TH FLOOR
MIAMI, FLORIDA 33131
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(305) 350-7541
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
REBECCA R. ORAND, ESQ.
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0557
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK,
$.0001 PAR VALUE................. 1,750,000 SHARES $5.00 - $6.75 $9,059,775 $2,673
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of (i) the actual
price of 874,000 options granted under the Registrant's Amended and
Restated 1995 Stock Option Plan (100,000 shares at $5.00; 605,000 shares
at $5.125; 110,000 shares at $6.25; 15,000 shares at $6.31; 44,000 shares
at $6.75) and (ii) an assumed price of $5.00 per share (based on the
Registrant's average high and low stock price on the American Stock
Exchange on January 14, 1998) for 876,000 options, the remaining options
to be granted under said Amended and Restated 1995 Stock Option Plan.
<PAGE> 2
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-KSB for the fiscal
year ended June 30, 1997, as amended;
(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 descriptions of the Registrant's Common Stock and related
matters set forth under the captions "Description of Capital
Stock" and "Dividend Policy" in the Registrant's Registration
Statement on Form SB-2 (File No. 333-16803) filed under the
Securities Act of 1933, as amended (the "Act"), including any
amendments to such descriptions in such Registration
Statement.
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 has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided in such statute. The Registrant's Articles of Incorporation provide
that the Registrant may indemnify its executive officers and directors to the
fullest extent permitted by law either now or hereafter.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of criminal
laws, unless the director had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe his conduct was unlawful; (b) deriving an
improper personal benefit from a transaction; (c) voting for or assenting to an
unlawful distribution; and (d) willful misconduct or a conscious disregard for
the best interests of the Registrant in a proceeding by or in the right of the
Registrant to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the federal securities laws.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought, nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-4 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:
(i) To include any prospectus required by
Section 10(a)(3) of the 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 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 if
the information required to be included in a post-effective amendment by those
paragraphs is 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 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 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 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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<PAGE> 4
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
Miami, State of Florida on January 16, 1998.
CONTINUCARE CORPORATION
By: /s/ Charles M. Fernandez
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Charles M. Fernandez, Chairman of the Board,
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Charles M. Fernandez his true and
lawful attorney-in-fact, 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 attorney-in-fact or his substitute, acting alone, may lawfully do or cause
to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Charles M. Fernandez Chairman of the Board, Chief Executive January 16, 1998
- ------------------------ Officer and President (principal
Charles M. Fernandez executive officer)
Vice Chairman of the Board January __, 1998
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Phillip Frost, M.D.
/s/ Maria T. Sosa Principal Accounting Officer (principal January 16, 1998
- ------------------------ financial officer and principal
Maria T. Sosa accounting officer)
/s/ Arthur M. Goldberg Director January 16, 1998
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Arthur M. Goldberg
/s/ Richard B. Frost Director January 16, 1998
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Richard B. Frost
/s/ Mark J. Hanna Director January 16, 1998
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Mark J. Hanna
/s/ Elias F. Ghanem, M.D. Director January 16, 1998
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Elias F. Ghanem, M.D.
Director January __, 1998
- ------------------------
Robert Soros
</TABLE>
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<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
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<S> <C> <C>
4.1 Registrant's Amended and Restated 1995 Stock
Option Plan (1)
5.1 Opinion of Greenberg Traurig Hoffman Lipoff Rosen
& Quentel, P.A.
23.1 Consent of Deloitte & Touche 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
</TABLE>
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(1) Incorporated herein by reference to Exhibit A of the Registrant's Proxy
Statement dated December 30, 1997.
<PAGE> 1
EXHIBIT 5.1
January 16, 1998
Continucare Corporation
100 S.E. Second Street
36th Floor
Miami, Florida 33131
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
On the date hereof, Continucare Corporation a Florida 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 1,750,000 shares of the
Company's Common Stock, par value $.0001 per share (the "Common Stock"),
pursuant to stock options ("Options") granted or to be granted under the
Company's 1997 Stock Option Plan, as amended (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 Amended and Restated
Articles 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.
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Continucare Corporation
January 16, 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,
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Continucare Corporation on Form S-8 of our report dated September 23, 1997,
appearing in the Annual Report on Form 10-K of Continucare Corporation for the
year ended June 30, 1997.
Deloitte & Touche LLP
Miami, Florida
January 12, 1998
