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As filed with the Securities and Exchange Commission on January 8, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MEDICALCONTROL, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2297429
(State of incorporation) (I.R.S. employer identification no.)
8625 King George Drive, Suite 300 75235
Dallas, Texas (Zip code)
(Address of principal executive office)
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Qualified Employee Stock Purchase Plan
(Full title of the plan)
Stephanie McVay, General Counsel Susan Henderson
MedicalControl, Inc. Crouch & Hallett, L.L.P.
8625 King George Drive, Suite 300 717 N. Harwood Street
Dallas, Texas 75235 Suite 1400
(214) 630-6368 Dallas, Texas 75201
(214) 953-0053
(Names, addresses and telephone numbers, including area codes,
of agents for service)
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APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLANS: Sales
to the purchasers of securities proposed to be registered hereunder will occur
from time to time after the effective date of this Registration Statement.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price Per Share Offering Price Registration Fee*
------------------- ------------ ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, 60,000 $7.57 $454,200 $127.00
$0.01 par value
</TABLE>
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* Estimated solely for purposes of calculating the registration fee, which has
been computed in accordance with Rule 457(h).
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed (i) through (iii) below are hereby incorporated by
reference into this Registration Statement. All documents subsequently filed by
the registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act") prior to 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 herein and to be a part hereof from the date of filing
of such documents.
(i) The registrant's latest annual report filed pursuant to Section 13
or 15(d) of the 1934 Act or the latest prospectus filed pursuant to Rule 424(b)
or under the Securities Act of 1933, as amended, (the "1933 Act"), which
contains, either directly or by incorporation by reference, certified financial
statements for the registrant's latest fiscal year for which such statements
have been filed.
(ii) All other reports filed pursuant to Section 13(a) and 15(d) of the
1934 Act since the end of the fiscal year covered by the annual reports or the
prospectus referred to in (i) above.
(iii) The description of the registrant's Common Stock, $.01 par value
("Common Stock") which is contained in the Company's latest registration
statement filed under the 1934 Act, including any amendments or reports filed
for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Law ("Delaware GCL")
empowers a corporation, subject to certain limitations, to indemnify its
directors and officers against expenses (including attorney's fees, judgments,
fines and certain settlements) actually and reasonably incurred by them in
connection with any suit or proceeding to which they are a party so long as they
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 a criminal action
or proceeding, so long as they had no reasonable cause to believe their conduct
to have been unlawful. The Registrant's By-laws provide that the Registrant
shall indemnify its employees and agents as the Board of Directors may determine
from time to time, to the fullest extent permitted by Section 145 of the
Delaware GCL.
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Section 102 of the Delaware GCL permits a Delaware corporation to
include in its certificate of incorporation a provision eliminating or limiting
a director's liability to a corporation or its stockholders for monetary damages
for breaches of fiduciary duty. The enabling statute provides, however, that
liability for breaches of the duty of loyalty, acts or omissions not in good
faith or involving intentional misconduct, or knowing violations of the law, and
the unlawful purchase or redemption of stock or payment of unlawful dividends or
the receipt of improper personal benefits cannot be eliminated or limited in
this manner. The Registrant's Certificate of Incorporation includes a provision
that eliminates, to the fullest extent permitted, director liability for
monetary damages for breaches of fiduciary duty.
The Company has also agreed to indemnify its directors in their
capacity as directors of the Company against any and all liability and
reasonable expense that may be incurred by the director or directors in
connection with or resulting from (a) any threatened, pending or completed
action, claim, suit or proceeding, whether civil, criminal, administrative or
investigative (each, a "Proceeding"), (b) an appeal in such a Proceeding or (c)
any inquiry or investigation that could lead to such a Proceeding, all to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5 Opinion of Stephanie McVay, Esq. (filed herewith).
23(a) Consent of Arthur Andersen LLP (filed herewith).
23(b) Consent of Stephanie McVay, Esq. (included as part of
Exhibit 5).
24 Power of Attorney (see signature page of this Registration
Statement)
ITEM 9. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to:
(i) Include any prospectus required by Section 10(a)(3)
of the 1933 Act.;
(ii) Reflect in the prospectus any facts or events which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement;
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(iii) Include any material information on the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that (i) and (ii) do 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 1934 Act that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under
the 1933 Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be
deemed to be the initial bona fide offering thereof; and
(c) 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.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the certificate of incorporation or bylaws of the
registrant 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 Dallas and State of Texas on the 8th day of
January, 1999.
MEDICALCONTROL, INC.
By /s/ John Ward Hunt
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John Ward Hunt, President and
Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints John Ward Hunt as his or her
attorney and agent for the undersigned, with full power of substitution, for and
in the name, place and stead of the undersigned, to sign and file with the
Securities and Exchange Commission under the Securities Act of 1933 any and all
amendments and exhibits to this Registration Statement and any and all
applications, instruments and other documents to be filed with the Securities
and Exchange Commission pertaining to the registration of the securities covered
hereby, with full power and authority to do and perform any and all acts and
things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on January 8, 1999.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ John Ward Hunt President, Chief Executive Officer, Chief
- ------------------------------ Financial Officer and Chairman of the Board
John Ward Hunt of Directors
(Principal Executive Officer)
/s/ David A. Hanson Vice President, Finance and Accounting
- ------------------------------ (Principal Financial Officer and Accounting
David A. Hanson Officer)
- ------------------------------ Director
Robert W. Philip
</TABLE>
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/s/ William L. Amos, Jr. Director
- ------------------------------
William L. Amos, Jr., M.D.
/s/ D. Samuel Coats Director
- ------------------------------
D. Samuel Coats
-6-
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
5 Opinion of Stephanie McVay, Esq. (filed herewith).
23(a) Consent of Arthur Andersen LLP (filed herewith).
23(b) Consent of Stephanie McVay, Esq. (included as part of
Exhibit 5).
24 Power of Attorney (see signature page of this Registration
Statement)
</TABLE>
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Exhibit 5
ATTORNEY AT LAW
8625 King George Dr. Suite 300
TELEPHONE (214) 630-6368
FACSIMILE (214) 689-6949
January 8, 1999
MedicalControl, Inc.
8625 King George Dr., Suite 300
Dallas, Texas 75235
Re: MedicalControl, Inc.
Registration Statement on Form S-8
File No. 333-_________
Gentlemen:
I have acted as securities counsel to MedicalControl, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
above-referenced Registration Statement on Form S-8 (the "Registration
Statement"), filed by the Company with the Securities and Exchange Commission
(the "Commission") on or about January 8, 1999. The Registration Statement
relates to the registration under the Securities Act of 1933, as amended (the
"Act"), of 60,000 shares of Common Stock, $.01 par value (the "Shares"), to be
issued from time to time pursuant to the Company's Qualified Employee Stock
Purchase Plan.
In connection with this opinion, I have examined and am familiar with originals
or copies, certified or otherwise identified to my satisfaction, of (i) the
Restated Certificate of Incorporation and the Amended and Restated Bylaws of the
Company, (ii) certain resolutions of the Board of Directors of the Company
relating to the registration of the Shares, (iii) the Registration Statement,
and (iv) such other documents as I have deemed necessary or appropriate as bases
for the opinion set forth below. In such examination, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photocopies
and the authenticity of the originals of such latter documents. As to any facts
material to this opinion which I do not independently establish or verify, I
have relied upon statements and representations of officers and other
representatives of the Company and others.
I am admitted to the practice of law in the State of Texas, and I express no
opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, I am of the opinion that the Shares
when issued will be validly issued and fully paid and are nonassessable under
Delaware law.
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January 8, 1999
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This opinion is furnished to you solely for your benefit in connection with the
filing of the Registration Statement and is not to be used, circulated, quoted
or otherwise referred to for any other purpose without my prior written consent.
Notwithstanding the foregoing, I hereby consent to the filing of this opinion
with the Commission as Exhibit 5.1 to the Registration Statement. I also consent
to the reference to my name under the caption "Legal Matters" in the
Registration Statement. In giving this consent, we do not thereby admit that we
are included in the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Stephanie L. McVay
Stephanie L. McVay, Esq.
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Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 13, 1998
included in MedicalControl, Inc.'s Form 10-K for the year ended December 31,
1997 and to all references to our Firm included in this registration statement.
Dallas, Texas
January 5, 1999
