UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8/A
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
DIABETIC
TREATMENT CENTERS
OF AMERICA, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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59-3733133
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(State
or other jurisdiction of
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(IRS
Employer
|
|
incorporation
or organization)
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Identification
No.)
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5401
S. Kirkman Road, Suite
310, Orlando, Florida 32819
(Address
of Principal Executive Offices)
2007
Amended Stock Option
Plan
(Full
title of the plan)
Corporation
Service Company
2711
Centerville Road, Suite 400
Wilmington,
Delaware
19808
(Name
and
address of agent for service)
(302)
636-5401
(Telephone
number, including area code, of agent for service)
CALCULATION
OF REGISTRATION FEE
|
Title
of plan to be registered (1)
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Amount
to be
Registered
(2)
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Proposed
maximum offering price
per
share (3)
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Proposed
maximum aggregate offering price (3)
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Amount
of registration fee
|
|
2007
Amended Stock Option Plan
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8,000,000(4)
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$0.01
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$80,000.00
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$3.15
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Totals
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8,000,000
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$0.01
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$80,000.00
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$3.15
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(1)
This
registration statement covers the common stock issuable upon the exercise of
options issued under the 2007 Amended Stock Option Plan of the
registrant.
(2)
This
registration statement shall also cover an indeterminable number of additional
shares of common stock which may become issued under the 2007 Amended Stock
Option Plan by reason of any stock dividend, stock split, re-capitalization
or
any other similar transaction effected without the receipt of consideration
which results in an increase in the number of the registrant's outstanding
shares of common stock.
(3)
This calculation is made solely for the purposes of determining the registration
fee pursuant to the provisions of Rule 457(c) under the Securities Act of 1933,
as amended, and is calculated on the basis of the last sale of the common stock
reported on the OTC Bulletin Board as of February 6, 2008, a date within five
business days prior to the filing of this registration statement.
(4)
This Form S-8/A amends the Form S-8 filed by the Company on March 21, 2007.
This
amendment: (a) increases the shares registered from 4,500,000 to 8,000,000;
(b)
makes other technical changes to the plan; and (c) updates otherwise dated
material in the filing through the date of this filing.
PROSPECTUS
DIABETIC
TREATMENT CENTERS OF AMERICA, INC.
8,000,000
Shares Of Common Stock
This
prospectus relates to the offer and sale of 8,000,000 shares of DIABETIC
TREATMENT CENTERS OF AMERICA, INC., a Delaware corporation ("Company"), issuable
upon the exercise of options issued to employees, advisors and consultants
(collectively the "Consultants") pursuant to the 2007 Amended Stock Option
Plan
(the "Stock Option Plan") that has been approved by the board of directors
of
the Company.
The
common stock is not subject to any restriction on transferability, except with
respect to resale restrictions applicable to shares of our common stock that
are
delivered to Consultants that are deemed to be our
affiliates. Recipients of shares other than persons who are
"affiliates" of Company within the meaning of the Securities Act of 1933 (the
"Act") may sell all or part of
the
shares in any way permitted by law, including sales in the over-the-counter
market at prices prevailing at the time of such sale. An affiliate is summarily,
any director, executive officer or controlling shareholder of the Company or
any
one of its subsidiaries. An "affiliate" of Company is subject to Section 16(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If
a
Consultant who is not now an "affiliate" becomes an "affiliate" in the future,
he/she would then be subject to Section 16(b) of the Exchange Act. The common
stock is traded on the OTC Bulletin Board under the symbol "DBTC.OB".
THESE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The
date
of this prospectus is February 8, 2008
This
prospectus is part of a registration statement which was filed and became
effective under the Securities Act of 1933, as amended (the "Securities Act"),
and does not contain all of the information set forth in the registration
statement, certain portions of which have been omitted pursuant to the rules
and
regulations promulgated by the U.S. Securities and Exchange Commission (the
"Commission") under the Securities Act. The statements in this prospectus as
to
the contents of any contracts or other documents filed as an exhibit to either
the registration statement or other filings by the Company with the Commission
are qualified in their entirety by the reference thereto.
A
copy of
any document or part thereof incorporated by reference in this prospectus but
not delivered herewith will be furnished without charge upon written or oral
request. Requests should be addressed to: Steven Weldon, chief financial
officer, 5401 S. Kirkman Road, Suite 310, Orlando, Florida 32819. The
Company's telephone number is (407) 926-6180.
Company
is subject to the reporting requirements of the Exchange Act and in accordance
therewith files reports and other information with the Commission. These
reports, as well as the proxy statements, information statements and other
information filed by the Company under the Exchange Act may be inspected and
copied at the public reference facilities maintained by the
Commission
at 450 Fifth Street, N.W. Washington D.C. 20549.
No
person
has been authorized to give any information or to make any representation,
other
than those contained in this prospectus, and, if given or made, such other
information or representation must not be relied upon as having been authorized
by the Company. This prospectus does not constitute an offer or a solicitation
by anyone in any state in which such is not authorized or in
which
the
person making such is not qualified or to any person to whom it is unlawful
to
make an offer or solicitation.
Neither
the delivery of this prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has not been a change in the
affairs of the Company since the date hereof.
TABLE
OF CONTENTS
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INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
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5
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Item
1. Stock Option Plan information
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5
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Item
2. Registrant Information and Employee Plan Annual
Information
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6
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INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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6
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Item
3. Incorporation of Documents by Reference
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6
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Item
4. Description of Securities
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7
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Item
5. Interests of Named Experts and Counsel
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7
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Item
6. Indemnification of Officers, Directors, Employees and
Agents; Insurance
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7
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Item
7. Exemption from Registration Claimed
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8
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Item
8. Exhibits
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8
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Item
9. Undertakings
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9
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SIGNATURES
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10
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PART
1
INFORMATION
REQUIRED IN THE SECTION 10(a)
PROSPECTUS
ITEM
1. STOCK OPTION PLAN INFORMATION.
THE
COMPANY
The
Company has its principal executive offices at 5401 S. Kirkman Road, Suite
310,
Orlando, Florida 32819. The Company's telephone number is (407)
926-6180.
PURPOSE
The
Company will issue common stock to certain Consultants upon the exercise of
options held by those Consultants, which options were received pursuant to
the
Stock Option Plan, which has been approved by the Board of Directors of the
Company. The Stock Option Plan is intended to provide a method whereby the
Company may be stimulated by the personal involvement of the Consultants in
our
future prosperity, thereby advancing the interests of the Company, and all
of
our shareholders. A copy of the Stock Option Plan has been filed as an exhibit
to this registration statement.
COMMON
STOCK
The
Board
has authorized the issuance of up to 8,000,000 shares of the common stock to
the
persons holding options covered by the Stock Option Plan upon effectiveness
of
this registration statement.
THE
CONSULTANTS
The
Company relies on employees and a variety of outside or independent consultants
for a variety of services from time to time. In exchange for consulting services
that benefit us, we intend to compensate them for their services under the
terms
of the Stock Option Plan by delivering options for the purchase of our common
stock to them in lieu of cash compensation.
NO
RESTRICTIONS ON TRANSFER
The
Consultants will become the record and beneficial owners of the shares of common
stock upon the exercise of options and will be entitled to all of the rights
of
ownership, including the right to vote any shares awarded and to receive
ordinary cash dividends on the common stock.
ITEM
2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not
Applicable.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The
following documents filed with the Securities and Exchange Commission (the
"Commission") by DIABETIC TREATMENT CENTERS OF AMERICA, INC., a Delaware
corporation, are incorporated herein by reference:
(a)
The Company's latest Annual Report on Form 10-KSB for the year ended March
31,
2007, filed with the Securities and Exchange Commission; as well as the
Company's quarterly reports filed on Form 10-QSB for the periods ended June
30,
2007, and September 30, 2007.
(b)
The reports of the Company filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the
fiscal year ended March 31, 2007;
(c)
All other documents filed by the Company after the date of this Registration
Statement 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 de-registers all securities 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.
ITEM
4. DESCRIPTION OF SECURITIES.
Not
applicable.
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Gary
R.
Henrie, Esq., of the law office of Gary R. Henrie, Attorney at Law, has provided
legal services and advice to the Company in connection with a variety of
corporate and securities matters, including the preparation and filing of this
Registration Statement, the registrant's compliance with the periodic reporting
requirements of the Securities Exchange Act of 1934, and advice on a variety
of
matters. Neither Mr. Henrie, nor his law firm, has been employed on a
contingent basis at anytime.
ITEM
6. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE.
Section
145 of the Delaware Corporation Law provides, in effect, that we may, and in
certain cases must, indemnify any person made a party to any action by reason
of
the fact that he is or was one of our directors, officers, employees, or agents
against, in the case of a non-derivative action, judgments, fines, amounts
paid
in settlement and reasonable expenses (including attorneys' fees) incurred
by
him as a result of such action, and in the case of a derivative action, against
expenses (including attorney's fees), if in either type of action he acted
in
good faith and in a manner he reasonably believed to be in or not opposed to
our
best interests. This indemnification does not apply, in a derivative action,
to
matters as to which it is adjudged that the director, officer, employee or
agent
is liable to us, unless upon court order it is determined that, despite such
adjudication of liability, but in view of all the circumstances of the case,
he
is fairly and reasonably entitled to indemnity for expenses, and, in a
non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
Our
Certificate of Incorporation provides that no director shall be liable to us
or
our stockholders for monetary damages for breach of fiduciary duty as a director
to the fullest extent permitted by Delaware law.
Our
bylaws provide that we shall indemnify, to the fullest extent permitted by
Delaware law, any and all of our directors and officers, or former directors
and
officers, or any person who may have served at our request as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise.
The
foregoing indemnification provisions are broad enough to encompass certain
liabilities of directors and officers of Company under the Securities and
Exchange Act of 1933.
INSOFAR
AS INDEMNIFICATION FOR LIABILITIES OCCURRING PURSUANT TO THE
PROVISIONS
OF THE SECURITIES ACT OF 1933 MAY BE PERMITTED AS TO DIRECTORS,
OFFICERS, OR PERSONS CONTROLLING THE COMPANY PURSUANT TO THE FOREGOING
PROVISIONS, THE COMPANY HAS BEEN INFORMED THAT IN THE OPINION OF THE SECURITIES
AND EXCHANGE COMMISSION, SUCH INDEMNIFICATION IS AGAINST PUBLIC POLICY AS
EXPRESSED IN THAT ACT AND, THEREFORE, IS 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 of 1933 and will be governed by the final adjudication of such
issue.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8. EXHIBITS.
(a)
The following exhibits are filed as part of this registration statement pursuant
to Item 601 of the Regulation SB and are specifically incorporated herein by
this reference:
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Exhibit
No.
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Title
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4.1
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2007
Amended Stock Option Plan
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5.1
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Legal
opinion of Gary R. Henrie, Esq.
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23.1
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Consent
of Gary R. Henrie, Esq. (Exhibit 5.1)
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23.2
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Consent
of Independent Certified Public Accountant
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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 to:
(i)
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii)
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, represents a fundamental
change in the information set forth in the registration statement;
(iii)
include any material information with respect to 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 paragraphs (1)(i) and (1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
incorporated by reference from periodic reports filed by the registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are
incorporated by reference in the registration statement.
(2)
That, for the purpose of determining any liability pursuant to 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 offered 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)
To deliver or cause to be delivered with the prospectus, to each person to
whom
the prospectus is sent or given, the latest annual report to security holders
that is incorporated by reference in the prospectus and furnished pursuant
to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to
be
presented by Article 3 of Regulation S-X is not set forth in the prospectus,
to
deliver, or cause to be delivered to each person to whom the prospectus is
sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(5)
Insofar as indemnification for liabilities arising under the Securities Act
may
be permitted to directors, officers and controlling persons of registrant
pursuant to the foregoing provisions, or otherwise, 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 registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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 is against public policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
The
undersigned hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of registrant's annual report
pursuant to Section 13(a) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to
section 15(d) of the Securities Exchange Act of 1934) 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
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 Orlando, Florida
on this 7th
day
of February, 2008.
DIABETIC
TREATMENT CENTERS OF
AMERICA, INC.
(Registrant)
/s/
Scott Allen
Scott
Allen
Chief
Executive Officer
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
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SIGNATURES
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TITLE
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DATE
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/s/
Scott Allen
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Principal
Executive Officer
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February
7, 2008
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Scott
Allen
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Director
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/s/
Steven Weldon
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Principal
Financial Officer
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February
7, 2008
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Steven
Weldon
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Principal
Accounting Officer
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Director
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DIABETIC
TREATMENT CENTERS OF AMERICA, INC.
2007
AMENDED STOCK OPTION PLAN
ADOPTED
FEBRUARY 6, 2008
1.
Purposes of the
Plan
. The purposes of this Stock Option Plan are to attract and retain
the best available personnel for positions of substantial responsibility, to
provide additional incentive to the Employees and Consultants of the Company
and
to promote the success of the Company's business.
Options
granted hereunder may be
either "incentive stock options,"as defined in Section 422 of the Internal
Revenue Code of 1986, as amended, or "nonstatutory stock options," at the
discretion of the Board and as reflected in the terms of the written Option
Agreement.
2.
Definitions
. As
used herein, the following definitions shall apply
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(a)
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"Board"
shall mean the Board of Directors of the Company.
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(b)
"Code" shall mean the Internal Revenue Code of 1986, as amended.
(c)
"Common Stock" shall mean the Common Stock of the Company.
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(d)
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"Company"
shall mean
DIABETIC
TREATMENT CENTERS OF AMERICA, INC.
, a Delaware corporation.
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(e)
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"CFO"
shall mean the Chief Financial Officer of the Company.
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(f)
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"Consultant"
shall mean any person who is engaged by the Company or any subsidiary
to
render consulting services and is compensated for such consulting
services, and any director of the Company whether compensated for
such
services or not.
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(g)
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"Continuous
Status as an Employee or Consultant" shall mean the absence of any
interruption or termination of service as an Employee or Consultant.
Continuous Status as an Employee or Consultant shall not be considered
interrupted in the case of sick leave, military leave, or any other
leave
of absence approved by the Board; provided that such leave is for
a period
of not more than 90 days or reemployment upon the expiration of such
leave
is guaranteed by contract or statute.
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(h)
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"Employee"
shall mean any person, including officers and directors, employed
by the
Company or any Parent or Subsidiary of the Company. The payment of
a
director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
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(i)
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"Incentive
Stock Option" shall mean an Option intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
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(j)
"Option" shall mean a Stock Option granted pursuant to the
Plan.
(k)
"Option Stock" shall mean the Common Stock subject to an
Option.
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(l)
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"Optionee"
shall mean an Employee or Consultant who receives an Option.
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(m)
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"Parent"
shall mean a "parent corporation," whether now or hereafter existing,
as
defined in Section 425(e) of the Code.
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(n)
"Plan" shall mean this 2007 Amended Stock Option Plan.
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(o)
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"Share"
shall mean a share of the Common Stock, as adjusted in accordance
with
Section 11 of the Plan.
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(p)
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"Subsidiary"
shall mean a subsidiary corporation, whether now or hereafter existing,
as
defined in Section 425(f) of the Code.
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(q)
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"Unvested
Portion" shall mean any Option with respect to the number of shares
of
Common Stock for that Option that are not exercisable as of the date
of
the closing of a Transaction resulting in a Change in Control. In
the case
of a Change in Control which occurs as the results of a series of
transactions, the closing date shall be deemed to be the closing
date of
the final Transaction affecting the Change in Control.
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3.
Stock Subject to
the
Plan
. The maximum aggregate number of shares which may be
optioned and sold under the Plan is eight million (8,000,000) shares of Common
Stock, which may be authorized, but unissued, Common Stock.
If
an Option should expire or become
unexercisable for any reason without having been exercised in full, the
unpurchased Shares which were subject thereto shall, unless the Plan shall
have
been terminated, become available for future grant under the Plan.
4.
Administration of
the
Plan
.
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(a)
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Procedure
.
The
Plan shall be administered by the CFO of the Company.
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(b)
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Powers
of the
CFO
. Subject to the provisions of the Plan, the CFO shall have
the
authority, in his discretion: (i) to grant Incentive Stock Options,
in
accordance with Section 422 of the Code, or "nonstatutory stock options;"
(ii) to determine, upon review of relevant information and in accordance
with Section 8(b) of the Plan, the fair market value of the Common
Stock;
(iii) to determine the exercise price per share of Options to be
granted,
which exercise price shall be determined in accordance with Section
8(a)
of the Plan; (iv) to determine the Employees or Consultants to whom,
and
the time or times at which, Options shall be granted and the number
of
shares to be represented by each Option; (v) to interpret the Plan;
(vi)
to prescribe, amend and rescind rules and regulations relating to
the
Plan; (vii) to determine the terms and provisions of each Option
granted
(which need not be identical) and, with the consent of the holder
thereof,
modify or amend each Option; (viii) to accelerate or defer (with
the
consent of the Optionee as to any deferral) the exercise date of
any
Option consistent with the provisions of Section 5 of the Plan; (ix)
to
make all other determinations deemed necessary or advisable for the
administration of the Plan.
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(c)
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Effect
of CFO's
Decision
. All decisions, determinations and interpretations of the
CFO shall be final and binding on all Optionees and any other holders
of
any Options granted under the Plan.
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5.
Eligibility
.
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(a)
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Options
may be granted only to Employees and Consultants. Incentive Stock
Options
may be granted only to Employees. An Employee or Consultant who has
been
granted an Option may, if he is otherwise eligible, be granted an
additional Option or Options.
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(b)
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No
Incentive Stock Option may be granted to an Employee which, when
aggregated with all other incentive stock Options granted to such
Employee
by the Company or any Parent or Subsidiary, would result in Shares
having
an aggregate fair market value (determined for each Share as of the
date
of grant of the Option covering such Share) in excess of $100,000
becoming
first available for purchase upon exercise of one or more Incentive
Stock
Options during any calendar year.
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(c)
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Section
5(b) of the Plan shall apply only to an Incentive Stock Option evidenced
by a written Option agreement which shall expressly identify the
Option as
an Incentive Stock Option. Section 5(b) of the Plan shall not apply
to any
Option evidenced by an Option agreement which sets forth the intention
of
the Company and the Optionee that such Option shall be a nonstatutory
Stock Option.
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(d)
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The
Plan shall not confer upon any Optionee any right with respect to
continuation of employment or consulting relationship with the Company,
nor shall it interfere in any way with his right or the Company's
right to
terminate his employment or consulting relationship at any time.
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6.
Term of Plan
.
The Plan shall become effective upon the earlier to occur of its adoption by
the
Board of Directors or its approval by the Stockholders of the Company as
described in Section 17 of the Plan. It shall continue in effect for a term
of
ten (10) years unless sooner terminated under Section 13 of the Plan.
7.
Term of Option
.
The term of each Incentive Stock Option shall be ten (10) years from the date
of
grant thereof or such shorter term as may be provided in the Stock Option
agreement. The term of each Option that is not an Incentive Stock Option shall
be (10) years and one (1) day from the date of grant thereof or such shorter
term as may be provided in the Stock Option agreement. However, in the case
of
an Option granted to an Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, (a) if the Option
is an Incentive Stock Option, the term of the Option shall be five (5) years
from the date of grant thereof or such shorter time as may be provided in the
Stock Option agreement, or (b) if the Option is not an Incentive Stock Option,
the term of the Option shall be five (5) years and one (1) day from the date
of
grant thereof or such shorter term as may be provided in the Stock Option
agreement.
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8.
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Exercise
Price and
Consideration
.
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(a)
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The
per Share exercise price for the Shares to be issued pursuant to
exercise
of an Option shall be such price as is determined by the CFO, but
shall be
subject to the following: (i) In the case of an Incentive Stock Option:
(A) granted to an Employee who, at the time of the grant of such
Incentive
Stock Option, owns stock representing more than ten percent (10%)
of the
voting power of all classes of stock of the Company or any Parent
or
Subsidiary, the per Share exercise price shall be no less than 110%
of the
fair market value per Share on the date of grant, (B) granted to
an
Employee, the per Share exercise price shall be no less than 100%
of the
fair market value per Share on the date of grant; (ii) In the case
of a
nonstatutory Stock Option, the per Share exercise price shall be
no less
than the price per Share set by the CFO on the date of grant.
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(b)
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The
fair market value shall be determined in the following manner. If
the
stock is unlisted, the fair market value shall be determined by the
CFO,
in his discretion. If listed, the value shall be the Closing Sales
Price
of the Company's Common Stock as reported on the NASDAQ National
Market
System on the business day immediately preceding the date of grant.
In the
event the Common Stock is listed on a stock exchange, the fair market
value per share shall be the closing price on such exchange on the
business day immediately preceding the date of grant, as reported
in the
Wall Street Journal.
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(c)
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The
consideration to be paid for the Shares to be issued upon exercise
of an
Option, including the method of payment shall be determined by the
CFO and
may consist entirely of cash, check, promissory note, surrender of
shares
of Common Stock of the Company acquired pursuant to the exercise
of the
Option, other Shares of Common Stock having a fair market value on
the
date of surrender equal to the aggregate exercise price of the Shares
as
to which said Option shall be exercised, or any combination of such
methods of payment, or such other consideration and method of payment
for
the issuance of Shares to the extent permitted under Nevada Corporation
Law. In making its determination as to the type of consideration
to
accept, the CFO shall consider if acceptance of such consideration
may be
reasonably expected to benefit the Company.
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9.
Exercise of
Option
.
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(a)
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Procedure
for
Exercise; Rights as a Stockholder
. Any Option granted hereunder
shall be exercisable at such times and under such conditions as determined
by the CFO, including performance criteria with respect to the Company
and/or the Optionee, and as shall be permissible under the terms
of the
Plan. An Option may not be exercised for a fraction of a
Share. An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Company in accordance
with
the terms of the Option by the person entitled to exercise the Option
and
full payment for the Shares with respect to which the Option is exercised
has been received by the Company. Full payment may, as authorized
by the
CFO, consist of any consideration and method of payment allowable
under
Section 8(c) of the Plan. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the Stock Certificate evidencing
such
shares, no right to vote or receive dividends or any other rights
as a
stockholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. No adjustment will be
made for
a dividend or other right for which the record date is prior to the
date
the Stock Certificate is issued, except as provided in Section 11
of the
Plan. Exercise of an Option in any manner shall result in a decrease
in
the number of Shares which thereafter may be available, both for
purposes
of the Plan and for sale under the Option, by the number of Shares
as to
which the Option is exercised.
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(b)
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Termination
of Status
as an Employee or Consultant
. If an Employee or Consultant ceases
to serve as an Employee or Consultant (as the case may be), he may,
but
only within three (3) months (or such other period of time not exceeding
three (3) months as is determined by the CFO at the time of grant
of the
Option) after the date he ceases to be an Employee or Consultant
(as the
case may be) of the Company, exercise his Option to the extent that
he was
entitled to exercise it at the date of such termination. To the extent
that he was not entitled to exercise the Option at the date of such
termination, or if he does not exercise such Option (which he was
entitled
to exercise) within the time specified herein, the Option shall terminate.
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(c)
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Disability
of
Optionee
. Notwithstanding the provisions of Section 9(b) above, in
the event an Employee or Consultant is unable to continue his employment
or consulting relationship (as the case may be) with the Company
as a
result of his total and permanent disability (as defined in Section
22(e)
(3) of the Internal Revenue Code), he may, but only within six (6)
months
(or such other period of time not less then six (6) months nor more
than
twelve (12) months as is determined by the Board at the time of grant
of
the Option) from the date of termination, exercise his Option to
the
extent he was entitled to exercise it at the date of such termination
(or
to such greater extent as the CFO may provide). To the extent that
he was
not entitled to exercise the Option at the date of termination, or
if he
does not exercise such Option (which he was entitled to exercise)
within
the time specified herein, the Option shall terminate.
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(d)
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Death
of
Optionee
. In the event of the death of an Optionee: (i)
during the term of the Optionee who is at the time of his death an
Employee or Consultant of the Company and who shall have been in
Continuous Status as an Employee or Consultant since the date of
grant of
the Option, the Option may be exercised, at any time within twelve
(12)
months following the date of death, by the Optionee's estate or by
a
person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent of the right to exercise that
has
accrued as of the date of death (or to such greater extent as the
CFO may
provide); or (ii) after the termination of Continuous Status as an
Employee or Consultant, the Option may be exercised, at any time
within
six (6) months following the date of death, by the Optionee's estate
or by
a person who acquired the right to exercise the Option by bequest
or
inheritance, but only to the extent of the right to exercise that
had
accrued at the date of termination (or to such greater extent as
the CFO
may provide).
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10.
Nontransferability
of
Options
. The Option may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws
of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
11.
Adjustments Upon
Certain Changes
.
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(a)
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Stock
Split or
Reclassification
. The number of Shares of Common Stock
covered by each outstanding Option as well as the price per Share
of
Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number
of
shares of Common Stock resulting from a stock split, reverse stock
split,
stock dividend, combination or reclassification of the Common Stock,
recapitalization, reorganization, or any other increase or decrease
in the
number of issued shares of Common Stock effected without receipt
of
consideration by the Company; provided, however, that conversion
of any
convertible securities of the Company shall not be deemed to have
been
"effected without receipt of consideration." Such adjustment shall
be made
by the CFO, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into Shares of stock of any class, shall affect, and
no
adjustment by reason thereof shall be made with respect to, the number
or
price of Shares of Common Stock subject to an Option. The Company
shall
provide to the optionee notice of any adjustment pursuant to this
section
11(a) immediately. No event described in this Section 11(a) or
elsewhere in this document shall have the effect of changing the
number of
options and/or common shares subject to the Plan as set forth in
Section 3
herein.
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(b)
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Change
in
Control
. In the event of a Change of Control, then to
the extent permitted by applicable law, with respect to half (50%)
of the
unvested Options (the "Primary Accelerated Amount") held by persons
then
performing services as Employees, Directors, or Consultants, then
immediately prior to the consummation of such Change of Control such
Primary Accelerated Amount shall be fully vested and exercisable
and such
Options shall be terminated if not exercised prior to the consummation
of
the Change of Control. With respect to the remaining portion of
such unvested Options (the "Remaining Amount"), any surviving corporation
or an Affiliate of such surviving corporation shall assume or continue
the
Remaining Amount, or substitute similar Options for the Remaining
Amount. If the surviving corporation or an Affiliate of such
surviving corporation refuses to assume or continue the Remaining
Amount,
or substitute similar Options for the Remaining Amount, then with
respect
to any person who was providing services as an Employee, Director
or
Consultant immediately prior to the consummation of the Change of
Control,
then immediately prior to the consummation of the Change of Control
such
Remaining Amount shall be fully vested and exercisable and such Options
shall be terminated if not exercised prior to the consummation of
the
Change of Control. If, following a Change of Control, the
surviving corporation or its Affiliates choose to assume or continue
the
Remaining Amount, or substitute similar Options for the remaining
amount
and any person then performing services as an Employee, Director,
or
Consultant is involuntarily terminated for reason other than Cause
or
voluntarily terminates for Good Reason within one (1) year of such
Change
of Control, then upon such termination any Options still outstanding
shall
be fully vested and exercisable and such Options shall be terminated
if
not exercised within thirty (30) days of such termination (or to
such
greater extent as the CFO may provide).
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For
the purposes of this
plan: (i) "Change in Control" means: (1) a dissolution, liquidation
or sale of substantially all of the assets of the Company; (2) a merger or
consolidation in which the Company is not the surviving corporation (other
than
a merger solely for the purpose of changing the state of incorporation); or
(3)
a reverse merger in which the Company is the surviving corporation but the
shares of the Company's common stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property, whether in
the
form of securities, cash or otherwise; (ii) "Cause" means: (1) an optionee's
willful dishonesty towards, fraud upon, crime against, deliberate or attempted
injury or bad faith action with respect to the Company; or (2) Optionee's
conviction for any felony crime; (iii) "Good Reason" means: (1) a material
reduction in compensation; (2) a relocation of the Optionee's principal worksite
to a location more than sixty (60) miles from Optionee's pre-Change of Control
worksite; or (3) for an executive officer, a material reduction in
responsibilities or authority as in effect before the Change in Control.
12.
Time of Granting
Options
. The date of grant of an Option shall, for all purposes, be the
date on which the CFO makes the determination granting such Option. Notice
of
the determination shall be given to each Employee or Consultant to whom an
Option is so granted within a reasonable time after the date of such
grant.
13.
Conditions Upon
Issuance of Shares
. Shares shall not be issued pursuant to the exercise
of an Option unless the exercise of such Option and the issuance and delivery
of
such Shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended, the
Securities and Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, state securities laws, and the requirements of any
stock
exchange upon which the Shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such
compliance.
As
a condition to the exercise of an
Option, the Company may require the person exercising such Option to render
to
the Company a written statement containing such representations and warranties
as, in the opinion of counsel for the Company, may be required to ensure
compliance with any of the aforementioned relevant provisions of law, including
a representation that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares, if, in the
opinion of counsel for the Company, such representation is required.
14.
Reservation of
Shares
. The Company, during the term of this Plan, will at all times
reserve and keep available such number of Shares as shall be sufficient to
satisfy the requirements of the Plan.
15.
Option
Agreement
. Options shall be evidenced by written option agreements or
option certificates in such form as the CFO shall approve.
16.
Stockholder
Approval
. If Incentive Stock Options are to be issued under
the Plan, continuance of the Plan shall be subject to approval by the
stockholders of the Company within twelve (12) months before or after the date
the Plan is adopted. If such Stockholder approval is obtained at a duly held
Stockholders' Meeting, it may be obtained by the affirmative vote of the holders
of a majority of the Share of the Company present or represented and entitled
to
vote thereon. In the case of approval by written consent, it must be
obtained by the written consent of all stockholders of the Company, or by
written consent of a smaller percentage of stockholders but only if the Board
determines, on the basis of advice of the Company's legal counsel, that the
written consent of such a smaller percentage of stockholders will comply with
all applicable laws and will not adversely affect the qualifications of the
Plan
under Section 422 of the Code.
Failure
to obtain shareholder
approval of the Plan as set forth in the preceding paragraph shall not
invalidate the Plan but will rather serve to automatically amend the Plan so
that no Incentive Stock Options may be issued under the Plan.
17.
Information to
Optionees
. The Company shall provide to each Optionee, during the period
for which such Optionee has one or more Options outstanding, copies of all
annual reports and other information which are provided to all stockholders
of
the Company. The Company shall not be required to provide such information
if
the issuance of Options under the Plan is limited to key employees whose duties
in connection with the Company assure their access to equivalent
information.
IN
WITNESS THEREOF, the Company hereto has executed this 2007 Amended Stock Option
Plan as of the date first above written.
Diabetic
Treatment Centers of America, Inc.
By:
/S/ Steven Weldon
Steven
Weldon,
CFO
Gary
R.
Henrie
Attorney
at Law
8275
S.
Eastern Ave., Suite
200 Telephone:
702-616-3093
Las
Vegas, NV
891213
Facsimile: (801) 796-0842
E-mail:
grhlaw@hotmail.com
February
1, 2008
Board
of
Directors
DIABETIC
TREATMENT CENTERS OF AMERICA, INC.
5401
S.
Kirkman Road, Suite 310
Orlando,
Florida 32819
Re:
DIABETIC TREATMENT CENTERS OF AMERICA, INC. (the “Company”)
Form
S-8
Registration Statement
Ladies
and Gentlemen:
As
special securities counsel for the Company, you have requested my opinion in
connection with the preparation and filing with the United States Securities
and
Exchange Commission of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the registration under the Securities Act of 1933,
as
amended, of certain shares of the Company’s common stock to be issued through
its 2007 Amended Stock Option Plan (the “Plan”).
I
have
examined such records and documents and made such examination of law as I have
deemed relevant in connection with this opinion. Based on the
foregoing, and subject to the limitations and exceptions set forth below, I
am
of the opinion that the common stock to be issued under the Plan will be validly
issued, fully paid and non-assessable when paid for following the exercise
of
any properly issued options.
This
opinion speaks as of its date and I undertake no, and hereby disclaim any,
duty
to advise as to changes in fact or law coming to my attention after delivery
hereof on such date. This opinion is rendered solely for your benefit
in connection with the above matter and may not be relied upon in any manner
by
any other persons or entity without my express written
consent. Moreover, my opinion is limited to the due issuance of such
shares covered by the Registration Statement and the Plan that are issued for
services deemed to be permissible pursuant to SEC Release No. 33-7647 (February
25, 1999).
I
hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/
Gary
R. Henrie
Gary
R.
Henrie