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As filed with the Securities and Exchange Commission on July 31, 1998
Registration No. ___
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIRNER DENTAL MANAGEMENT SERVICES, INC.
(Exact name of issuer as specified in its charter)
Colorado 84-1307044
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3801 East Florida Avenue, Suite 508, Denver, CO 80210
(Address of Principal Executive Offices and Zip Code)
BIRNER DENTAL MANAGEMENT SERVICES, INC.
1995 EMPLOYEE STOCK OPTION PLAN
BIRNER DENTAL MANAGEMENT SERVICES, INC.
1995 STOCK OPTION PLAN FOR MANAGED DENTAL CENTERS
(Full titles of plans)
Frederic W. J. Birner
Chairman of the Board and Chief Executive Officer
Birner Dental Management Services, Inc.
3801 East Florida Avenue, Suite 508
Denver, Colorado 80210
(Name and address of agent for service)
(303) 691-0680
(Telephone number, including area code, of agent for service)
Copy to: Holland & Hart LLP
Attn: Dennis M. Jackson, Esq.
555 Seventeenth Street, Suite 3200
Denver, Colorado 80202
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
Proposed Proposed
Title of Securities to Amount to be maximum offering maximum aggregate Amount of
be registered registered (1) price per share offering price registration fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,558,900 $5.78125 (2) $9,012,390 $2,658.66
(no par value)
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such indeterminate number of shares as may be issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of
1933.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee and based on
the average of the high and low sales prices for the Registrant's
common stock as reported on the Nasdaq National Market on July 27,
1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This registration statement relates to the registration of 1,558,900
shares of Common Stock, no par value, of Birner Dental Management Services, Inc.
(the "Company"), of which 917,000 shares are issuable pursuant to options
granted pursuant to the Birner Dental Management Services, Inc. 1995 Employee
Stock Option Plan (the "Employee Plan") and 641,900 shares are issuable pursuant
to options granted pursuant to the Birner Dental Management Services, Inc. 1995
Stock Option Plan for Managed Dental Centers (the "Dental Center Plan"). The
documents containing the information required by Part I of Form S-8 will be sent
or given to participants in the Employee Plan and the Dental Center Plan as
specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the
"Securities Act"). In reliance on Rule 428, such documents (i) are not being
filed with the Securities and Exchange Commission (the "Commission") either as
part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 and (ii) along with the documents incorporated by reference
into this registration statement pursuant to Item 3 of Part II hereof,
constitute prospectuses (the "Prospectuses") that meet the requirements of
Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference in this
registration statement:
(1) The Company's Annual Report on Form 10-K, filed pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), for the year ended December 31, 1997.
(2) The Company's Quarterly Report on Form 10-Q, filed pursuant to
Section 13 or 15(d) of the Exchange Act for the quarter ended March 31,
1998.
(3) All other reports, if any, filed by the Company pursuant to
Section 13 or 15(d) of the Exchange Act since December 31, 1997.
(4) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (SEC File No. 333-36391)
filed with the Commission on September 25, 1997, as amended.
All documents filed by the Company pursuant to Sections 13, 14 or 15(d)
of the Exchange Act subsequent to the date of this registration statement, and
prior to the filing of a post-effective amendment which indicates that all
shares offered hereby have been sold or which deregisters all shares then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing such
documents. Any statement contained in the Prospectuses, this registration
statement or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
the Prospectuses and this registration statement to the extent that a statement
contained in any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Prospectus or this registration
statement.
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 Company's Amended and Restated Articles of Incorporation provide
that, to the fullest extent permitted by Colorado law, the Company's directors
shall not be personally liable for monetary damages for breach of fiduciary duty
to the Company and its shareholders. This provision in the Amended and Restated
Articles of Incorporation does not eliminate or limit the liability of a
director to the Company or to its shareholders for monetary damages otherwise
existing for: (i) any breach of the director's duty of loyalty to the Company or
to its shareholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) acts specified in
Section 7-108-403 of the Colorado Business Corporation Act relating to any
unlawful distribution; or (iv) any transaction from which the director directly
or indirectly derived any improper personal benefit.
In addition, the Company's Amended and Restated Bylaws provide that the
Company will indemnify its directors and executive officers and may indemnify
its other officers, employees and
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agents to the fullest extent permitted by Colorado law. In addition, the Company
must advance or reimburse directors and executive officers for expenses incurred
by them in connection with certain claims. The Company is also empowered under
its Amended and Restated Bylaws to enter into indemnification contracts with its
directors and officers and to purchase insurance on behalf of any person it is
required or permitted to indemnify. Pursuant to this provision, the Company has
entered into indemnification agreements with each of its directors and executive
officers.
There is no pending litigation or proceeding involving a director or
officer of the Company as to which indemnification is being sought, nor is the
Company aware of any pending or threatened litigation that may result in claims
for indemnification by any director or officer.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description.
4.1 Amended and Restated Articles of Incorporation,
incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (SEC File
No. 333-36391), as filed with the Commission on
September 25, 1997.
4.2 Amended and Restated Bylaws, incorporated by reference
to Exhibit 3.3 of the Company's Registration Statement
on Form S-1 (SEC File No. 333-36391), as filed with
the Commission on September 25, 1997.
4.3 Birner Dental Management Services, Inc. 1995 Employee
Stock Option Plan, including forms of Incentive Stock
Option Agreement and Non-statutory Stock Option
Agreement under the Employee Plan, incorporated herein
by reference to Exhibit 10.23 to the Company's
Registration Statement on Form S-1 (SEC File No.
333-36391), as filed with the Commission on September
25, 1997.
4.4 Birner Dental Management Services, Inc. 1995 Stock
Option Plan for Managed Dental Centers, including form
of Non-statutory Stock Option Agreement under the
Dental Center Plan, incorporated herein by reference
to Exhibit 10.24 to the Company's Registration
Statement on Form S-1 (SEC File No.333-36391), as
filed with the Commission on September 25, 1997.
5.1 Opinion of Holland & Hart LLP, counsel for the
Company.
23.1 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.2 Consent of Holland & Hart LLP (contained in their
opinion filed as Exhibit 5.1).
24.1 Power of Attorney.
Item 9. Undertakings.
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,
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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) 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 Commission by the registrant
pursuant to section 13 or section 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 offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities 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.
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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the 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 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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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
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 Denver, State of Colorado, on July 30, 1998.
BIRNER DENTAL MANAGEMENT SERVICES, INC.
By: /s/ Frederic W.J. Birner
------------------------
Frederic W.J. Birner, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Date Name and Title
- ---- -------------------------------
<S> <C> <C>
July 30, 1998 Frederic W.J. Birner, )
Director, Chairman of the Board, )
Chief Executive Officer )
)
July 30, 1998 Mark A. Birner, )
Director, President, )
)
July 30, 1998 Dennis N. Genty, )
Director, Chief Financial Officer, Treasurer ) By: /s/ Frederic W.J. Birner
and Secretary (Principal Financial Officer ) ----------------------------
and Principal Accounting Officer) ) Frederic W.J. Birner, in the
) capacity indicated and as
) Attorney-In-Fact for the
July 30, 1998 James M. Ciccarelli, ) named Officers and named
Director ) Directors, who constitute all
) of the Directors of the
July 30, 1998 Steven M. Bathgate, ) Company.
Director )
)
</TABLE>
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EXHIBITS INDEX
<TABLE>
<CAPTION>
Exhibit No. Description.
- ----------- ------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation,
incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (SEC File
No. 333-36391), as filed with the Commission on
September 25, 1997.
4.2 Amended and Restated Bylaws, incorporated by reference
to Exhibit 3.3 of the Company's Registration Statement
on Form S-1 (SEC File No. 333-36391), as filed with
the Commission on September 25, 1997.
4.3 Birner Dental Management Services, Inc. 1995 Employee
Stock Option Plan, including forms of Incentive Stock
Option Agreement and Non-statutory Stock Option
Agreement under the Employee Plan, incorporated herein
by reference to Exhibit 10.23 to the Company's
Registration Statement on Form S-1 (SEC File No.
333-36391), as filed with the Commission on September
25, 1997.
4.4 Birner Dental Management Services, Inc. 1995 Stock
Option Plan for Managed Dental Centers, including form
of Non-statutory Stock Option Agreement under the
Dental Center Plan, incorporated herein by reference
to Exhibit 10.24 to the Company's Registration
Statement on Form S-1 (SEC File No. 333-36391), as
filed with the Commission on September 25, 1997.
5.1 Opinion of Holland & Hart LLP, counsel for the
Company.
23.1 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.2 Consent of Holland & Hart LLP (contained in their
opinion filed as Exhibit 5.1).
24.1 Power of Attorney.
</TABLE>
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EXHIBIT 5.1
[HOLLAND & HART LLP LETTERHEAD]
July 30, 1998
Board of Directors
Birner Dental Management Services, Inc.
3801 East Florida Avenue, Ste. 508
Denver, Colorado 80210
To the Board of Directors:
As counsel for Birner Dental Management Services, Inc. (the "Company"),
a Colorado corporation, we have examined and are familiar with its Amended and
Restated Articles of Incorporation, its Amended and Restated Bylaws and its
various corporate records and procedures relating to the Company's
incorporation. We are also familiar with the procedures taken by the Board of
Directors of the Company to authorize and approve (i) the Birner Dental
Management Services, Inc. 1995 Employee Stock Option Plan, and (ii) the Birner
Dental Management Services, Inc. 1995 Stock Option Plan for Managed Dental
Centers (the "Plans"). Pursuant to the terms and conditions set forth in the
Plans, the Company may issue and sell up to 1,558,900 shares of its Common Stock
(no par value), subject to adjustment, to eligible participants in the Plans. We
also have examined such other matters and have made such other inquiries as we
deem relevant to our opinion expressed below.
We are of the opinion that the total 1,558,900 shares of Common Stock
of the Company described above when issued in accordance with the Plans, will be
legally issued and validly outstanding shares of the Common Stock of the
Company, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an Exhibit to the Company's Registration Statement on
Form S-8 in connection with the Plans, and any amendments thereto.
Very truly yours,
/s/ Holland & Hart LLP
Holland & Hart LLP
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EXHIBIT 23.1
[ARTHUR ANDERSEN LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
March 18, 1998 included in Birner Dental Management Services, Inc.'s Form
10-K for the year ended December 31, 1997 and to all references to our Firm
included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Denver, Colorado,
July 31, 1998.
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EXHIBIT 24.1
POWER OF ATTORNEY
Each of the undersigned directors and officers of Birner Dental
Management Services, Inc. (the "Company") hereby authorizes Frederic W.J. Birner
as their true and lawful attorney-in-fact and agents: (1) to sign in the name of
each such person and file with the Securities and Exchange Commission a
Registration Statement on Form S-8, and any and all amendments (including
post-effective amendments) to such Registration Statement, for the registration
under the Securities Act of 1933, as amended, of shares of Common Stock issuable
pursuant to the exercise of options granted pursuant to the Birner Dental
Management Services, Inc. 1995 Employee Stock Option Plan and the Birner Dental
Management Services, Inc. 1995 Stock Option Plan for Managed Dental Centers, and
any other securities of the Company which the Company's Board of Directors
authorizes to be included in such Registration Statement; and (2) to take any
and all actions necessary or required in connection with such Registration
Statement and amendments to comply with the Securities Act of 1933, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Frederic W. J. Birner Director, Chairman of the Board, July 30, 1998
- ------------------------- Chief Executive Officer
Frederic W.J. Birner
/s/ Mark A. Birner Director, President July 30, 1998
- ------------------
Mark A. Birner
/s/ Dennis N. Genty Director, Chief Financial Officer, July 30, 1998
- ------------------- Treasurer and Secretary
Dennis N. Genty
/s/ James M. Ciccarelli Director July 30, 1998
- -----------------------
James M. Ciccarelli
/s/ Steven M. Bathgate Director July 30, 1998
- ----------------------
Steven M. Bathgate
</TABLE>
