As filed with the Securities and Exchange Commission on May 16, 2000.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-8
Registration Statement
Under the Securities Act of 1933
CYBER-CARE, INC.
(Exact name of Registrant as specified in its charter)
Florida 65-0158479
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
1903 S. Congress Avenue, Suite 400 Linda Moore
Boynton Beach, Florida 33426 1903 S. Congress Avenue, Suite 400
(561) 737-2227 Boynton Beach, Florida 33426
(Address, including zip code, and (561) 737-2227
telephone number, including (Name, address, including zip code,
area code, of registrant's and telephone number, including
principal executive offices) area code, of agent for service)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
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COPY TO:
Thomas C. Pritchard
Brewer & Pritchard, P.C.
Three Riverway, Suite 1800
Houston, Texas 77056
Phone (713) 209-2950
Fax (713) 659-2430
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================== ============ ================= ================ ============
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- ---------------------------------- ------------ ----------------- ---------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.0025 per share 50,000 $15.19 $759,500 $221
- ---------------------------------------------------------------------------------- ------------
TOTAL $221
================================================================================== ============
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will
be adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h), on the basis of the average
high and low prices as reported by the Nasdaq National Market on April
28, 2000.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the company with the SEC are
incorporated herein by reference:
1. The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act of 1934, or, either (1) the Company's latest
prospectus filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Company's latest fiscal year for which such
statements have been filed, or (2) the Company's effective registration
statement on Form 10-SB filed under the Exchange Act containing audited
financial statements for the Company's latest fiscal year;
2. 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 document referred
to in (1) above; and
3. The description of the common stock that is contained in a
registration statement or amendment thereto filed under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
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 to the registration statement which indicates that
all shares of common stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part thereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 607.0850(1) of the Florida Business Corporation Act, as amended
(the "Florida Act"), provides that, in general, a Florida corporation may
indemnify any person who was or is a party to any proceeding (other than an
action by, or in the right of, the corporation), by reason of the fact that he
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 liability incurred in connection with such proceeding,
including any appeal thereof, 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 and, with respect to any criminal action or proceeding, he had no
reasonable cause to believe his conduct was unlawful.
In the case of proceedings by or in the right of the corporation,
Section 607.0850(2) of the Florida Act provides that, in general, a corporation
may indemnify any person who was or is a party to any such proceeding by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation against expenses and amounts paid in settlement actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof, provided that such person acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the corporation, except that no indemnification shall be
made in respect of any claims as to which such person is adjudged liable unless
a court of competent jurisdiction determines upon application that such person
is fairly and reasonably entitled to indemnity.
Section 607.0850 further provides that to the extent a director,
officer, employee or agent of a corporation is successful on the merits or in
the defense of any proceeding referred to in subsections (1) or (2) of Section
607.0850 or in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses actually and reasonably incurred by him in
connection therewith; that the corporation may advance such expenses; that
indemnification provided for by Section 607.0850 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of such person against
any liability asserted against him or 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 liabilities under such Section 607.0850.
Section 607.0850 of the Florida Act further provides that, in general,
indemnification or advancement of expenses shall not be made to or on behalf of
any director, officer, employee or
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<PAGE>
agent if a judgment or other final adjudication establishes that such person's
actions, or omissions to act, were material to the cause of action so
adjudicated and constitute: (i) a violation of the criminal law, unless such
person had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful; (ii) a transaction from
which such person derived an improper personal benefit; (iii) in the case of a
director, a circumstance under which the director has voted for or assented to a
distribution made in violation of the Florida Act or the corporation's articles
of incorporation; or (iv) willful misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in favor of or in a proceeding by or in the
right of a shareholder.
The Company's Articles of Incorporation and Bylaws provide that the
Company shall indemnify its directors and officers to the fullest extent
permitted by Florida law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Any restricted securities to be offered or resold pursuant to this
registration statement were issued pursuant to an exemption under Section 4(2)
of the Securities Act, as a non-public offering of securities.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration statement:
EXHIBIT NO. IDENTIFICATION OF EXHIBIT
4.1(1) Common Stock Specimen
4.2(2) 1999 Employee Stock Purchase Plan
5.1(3) Opinion Regarding Legality
23.1(3) Consent of Counsel (included in Exhibit 5.1)
23.2(3) Consent of Ernst & Young LLP, independent public accountants
23.3(3) Consent of Grant Thornton LLP, independent public accounts
- ---------------------
(1) Incorporated by reference from the Exhibit with the same reference number
in the Company's Registration Statement.
(2) Previously filed as an exhibit to the Company's definitive proxy statement,
filed with the commission on July 30, 1999, and incorporated herein by
reference.
(3) Filed herewith.
ITEM 9. UNDERTAKINGS
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(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;
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. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee"
table in the effective 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.
Provided, however, that paragraphs (a)(1)(i) and (ii)
do not apply if the registration statement is on Form
S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with
or furnished to the SEC by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the
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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 liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
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
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6 above, 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 Securities 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
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities 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 Boynton Beach, State of Florida, on the 16th day of
May 2000.
CYBER-CARE, INC.
By ______________________________
Michael F. Morrell,
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
SIGNATURE TITLE DATE
/s/ MICHAEL F. MORRELL Chief Executive Officer, May 16, 2000
Michael F. Morrell Director and Chairman of
the Board
/s/ PAUL C. PERSHES President and Director May 16, 2000
Paul C. Pershes
/s/ ARTHUR KOBRIN Chief Accounting Officer and May 16, 2000
Arthur Kobrin Senior Vice President
/s/ LINDA MOORE Senior Vice President May 16, 2000
Linda Moore
/s/ GLEN BARBER Director May 16, 2000
Glen Barber
/s/ THEODORE J. ORLANDO Director May 16, 2000
Theodore J. Orlando
/s/ TERRY LAZAR Director May 16, 2000
Terry Lazar
/s/ LOUIS R. CAPECE, JR. Director May 16, 2000
Louis R. Capece, Jr.
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Exhibit 5.1
May 16, 2000
Cyber-Care, Inc.
1903 S. Congress Ave., Suite 400
Boynton Beach, FL 33426
Re: Cyber-Care, Inc.
Registration Statement on Form S-8
Gentlemen:
We have represented Cyber-Care, Inc., a Florida corporation ("Company"),
in connection with the preparation of a registration statement filed with the
Securities and Exchange Commission on Form S-8 ("Registration Statement")
relating to the resale of 50,000 shares ("Shares") of the Company's common
stock, par value $.0025 per share ("Common Stock") issued pursuant to the 1999
Employee Stock Purchase Plan (the "Plan"), which is attached as an exhibit to
the Registration Statement. In this connection, we have examined originals or
copies identified to our satisfaction of such documents, corporate and other
records, certificates, and other papers as we deemed necessary to examine for
purposes of this opinion, including but not limited to the Plan, the Certificate
of Incorporation of the Company, the Bylaws of the Company, and resolutions of
the Board of Directors of the Company.
We are of the opinion that the Shares are legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement.
Very truly yours,
BREWER & PRITCHARD, P.C.
/s/ Brewer & Pritchard, P.C.
EXHIBIT 23.2
AUDITOR'S CONSENT
We consent to the reference to our firm in the Registration Statement (Form S-8)
pertaining to the 1999 Employee Stock Purchase Plan of Cyber-Care, Inc. and to
the incorporation by reference therein of our report dated February 24, 2000,
with respect to the consolidated financial statements and schedules of
Cyber-Care, Inc included in its Annual Report (Form 10-KSB) for the year ended
December 31, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
May 15, 2000
EXHIBIT 23.3
We consent to the reference to our firm in the Registration Statement (Form S-8)
pertaining to the 1999 Employee Stock Purchase Plan of Cyber Care, Inc. and to
the incorporation by reference therein of our report dated March 26, 1999, with
respect to the consolidated financial statements and schedules of Cyber Care,
Inc. included in its Annual Report (Form 10-KSB) for the year ended December 31,
1998, filed with the Securities and Exchange Commission.
/s/ Grant Thornton LLP
Fort Lauderdale, Florida
May 16, 2000
