As filed with the Securities and Exchange Commission on __________, 2003
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DCAP GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
36-2476480
(I.R.S. Employer Identification No.)
1158 Broadway, Hewlett, New York 11557
(Address of Principal Executive Offices)
1998 STOCK OPTION PLAN
(Full Title of Plan)
Barry Goldstein
Chief Executive Officer
DCAP Group, Inc.
1158 Broadway
Hewlett, New York 11557
Telephone: (516) 374-7600
Telecopier: (516) 295-7216
(Name, Address and Telephone Number of Agent For Service)
Copies of all communications and notices to:
Fred Skolnik, Esq.
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Telephone: (516) 296-7000
Telecopier: (516) 296-7111
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
of Securities Amount Offering Aggregate Amount of
To Be To Be Price Offering Registration
Registered Registered Per Share Price Fee
Common Shares
(par value $.01
per share) 1,000,000(1) $.25(1) $250,000 $20.23
--------------------------- --------------------- --------------------- ---------------------- ------------------------
Common Shares
(par value $.01
per share) 1,450,000(1) $.30(1) $435,000 $35.19
--------------------------- --------------------- --------------------- ---------------------- ------------------------
Common Shares
(par value $.01
per share) 450,000(1) $2.69(1) $1,210,500 $97.93
--------------------------- --------------------- --------------------- ---------------------- ------------------------
Common Shares
(par value $.01
per share) 850,000(2) $.45(3) $382,500 $30.94
--------------------------- --------------------- --------------------- ---------------------- ------------------------
Total $184.29
=========================== ===================== ===================== ====================== ========================
(1) Represents Common Shares reserved for issuance under the Registrant's
1998 Stock Option Plan (the "Plan") pursuant to outstanding options at
the exercise prices noted.
(2) Represents Common Shares reserved for issuance under the Plan otherwise
than pursuant to outstanding options.
(3) Represents the average of the high and low prices of the Registrant's
Common Shares on March 21, 2003.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated herein by reference are the following documents filed by the
Registrant with the Securities and Exchange Commission (the "Commission") under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(a) Annual Report on Form 10-KSB for the year ended December 31, 2002.
(b) The description of the Registrant's Common Shares contained in the
Registrant's Registration Statement on Form 8-A (File No. 0-15362).
All documents 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 this Registration Statement which indicates that all securities offered
hereby have been sold or which deregisters all such securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from their respective dates of filing.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters in connection with the offering of securities
registered hereunder are being passed upon for the Registrant by Certilman Balin
Adler & Hyman, LLP, 90 Merrick Avenue, East Meadow, New York 11554.
Item 6. Indemnification of Directors and Officers
Article TWELFTH of the Registrant's Restated Certificate of Incorporation
eliminates, absent fraud, the personal liability of directors to the Registrant,
stockholders or creditors thereof, or any other persons, in connection with
losses incurred by the Registrant under or by reason of any contract or business
transaction between a director and the Registrant, nor shall a director be
accountable for any gains or profits realized thereon.
Article THIRTEENTH of the Registrant's Restated Certificate of
Incorporation provides that each director and each officer now or hereafter
serving the Registrant or, at the request of the Registrant, any other
corporation in which the Registrant has an interest as stockholder or creditor,
and his heirs, executors and administrators, shall be indemnified and held
harmless by the
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Registrant from and against all costs, expenses and liabilities, including but
not limited to counsel fees and amounts of judgments and amounts paid in
settlement, which may be imposed upon or incurred by him in connection with or
resulting from any claim made against him or any action, suit or proceeding in
which he may be involved, by reason of his being or having been a director or
officer of the Registrant or any of such other corporation, whether or not he
continues to be a director or officer at the time such costs, expenses and
liabilities are imposed or incurred; provided, however, that no such director or
officer shall be so indemnified (a) with respect to any matter as to which he
shall, in any such action, suit or proceeding, be finally adjudged to be liable
for misconduct in the performance of his duties as a director or officer, or (b)
in the event of a settlement of any such claim, action, suit or proceeding
unless (i) such settlement shall, with knowledge of the indemnification provided
for hereby, be approved by the court having jurisdiction of such claim, action,
suit or proceeding or (ii) such settlement shall have been made upon the written
opinion of independent legal counsel, selected by or in a manner determined by
the board of directors of the corporation, to the effect that there is no
reasonable ground of liability for misconduct on the part of such director or
officer and that the entire cost of such settlement will not substantially
exceed the estimated cost of defending such claim, action, suit or proceeding to
a final conclusion. The Registrant's Restated Certificate of Incorporation also
states that the foregoing rights of indemnification shall be in addition to any
other rights to which such director or officer may otherwise be entitled as a
matter of law.
Article FIFTEENTH of the Registrant's Restated Certificate of Incorporation
eliminates the personal liability of directors to the Registrant and its
stockholders for monetary damages for breach of fiduciary duty as a director
except for liability of a director (i) for breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) arising under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper personal
benefit.
Additionally, the Registrant has included in its by-laws provisions to
indemnify its directors, officers, employees and agents and to purchase
insurance with respect to liability arising out of the performance of their
duties as directors, officers, employees and agents as permitted by Section 145
of the Delaware General Corporation law. The Delaware General Corporation law
provides further that the indemnification permitted thereunder shall not be
deemed exclusive of any other rights to which the directors, officers, employees
and agents may be entitled under the Registrant's by-laws, any agreement, vote
of stockholders or otherwise.
The effect of the foregoing is to require the Registrant, to the extent
permitted by law, to indemnify the officers, directors, employees and agents of
the Registrant for any claim arising against such persons in their official
capacities if such person acted in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Registrant, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
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Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed 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.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
5 Opinion of Certilman Balin Adler & Hyman LLP as to
the legality of the Common Shares reserved for
issuance under the Registrant's 1998 Stock Option
Plan
23.1 Consent of Holtz Rubenstein & Co., LLP.
23.2 Consent of Certilman Balin Adler & Hyman, LLP
(included in the opinion filed as Exhibit 5 hereto)
24 Powers of Attorney (included in signature page
forming a part hereof)
99 1998 Stock Option Plan(1)
--------------------------
(1) Denotes document filed as an exhibit to the Registrant's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 2002 and
incorporated herein by reference.
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 of 1933;
(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 Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
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maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, 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 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 of 1933, 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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 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
of 1933 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 Hewlett, State of New York, on the 25th day of March,
2003.
DCAP GROUP, INC.
By: /s/ Barry B. Goldstein
----------------------
Barry B. Goldstein
Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below
constitutes and appoints Barry B. Goldstein with full power to act as his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, and each of his
substitutes, full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
Signature Capacity Date
/s/ Barry B. Goldstein President, Chairman of the Board, March 25, 2003
------------------------- Chief Executive Officer, Chief
Barry B. Goldstein Financial Officer and Director
(Principal Executive, Financial
and Accounting Officer)
/s/ Morton L. Certilman Secretary and Director March 25, 2003
-----------------------
Morton L. Certilman
/s/ Jay M. Haft Director March 25, 2003
---------------
Jay M. Haft
Director
---------------------
Robert M. Wallach