SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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NOVACARE EMPLOYEE SERVICES, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 23-2866146
(State or other jurisdiction (I.R.S. Employer
of incorporation Identification No.)
or organization)
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2621 Van Buren Avenue
Norristown, Pennsylvania 19403
(610) 650-4700
(Address of principal executive offices)
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NOVACARE EMPLOYEE SERVICES, INC.
1997 STOCK OPTION PLAN
(Full title of the plan)
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LOREN J. HULBER
President and Chief Executive Officer
NovaCare Employee Services, Inc.
2621 Van Buren Avenue
Norristown, Pennsylvania 19403
(610) 650-4700
(Name, address and telephone number,
including area code, of agent for service)
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Copy to:
MARIE L. MARTINO, Esq.
NovaCare, Inc.
1016 West Ninth Avenue
King of Prussia, Pennsylvania 19406
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the
Registration Statement becomes effective.
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CALCULATION OF REGISTRATION FEE
<TABLE>
===============================================================================
<CAPTION>
Proposed Proposed
Title of maximum maximum Amount of
securities to Amount to offering aggregate registration
be registered be registered price per share offering price fee
------------- ------------- --------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock 1,625,000 $9.12 $14,820,000.00 $4371.90
($.01 par value)
===============================================================================
</TABLE>
Page 1 of 10 pages
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby states that (i) the documents listed in (a), (b)
and (c) below are incorporated by reference in this Registration Statement and
(ii) all documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the 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 in this Registration
Statement and to be a part hereof from the date of filing of such documents.
(a) The Company's Prospectus dated November 11, 1997 filed on Form
S-1.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1997 and December 31, 1997.
(c) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A, filed on November 10, 1997.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities registered hereunder has been passed
upon by Marie L. Martino, Esq., an employee of the Company. Ms. Martino, as of
February 27, 1998 owned directly options to purchase 30,000 shares of the
Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Under the provisions of Article SIXTH of the Certificate of
Incorporation of the Company, the Company is required to indemnify a director or
officer of the Company from and against any and all expenses and liabilities
that may be imposed upon or incurred by him in connection with, or as a result
of, any proceeding in which he is or is threatened to be made a party, by reason
of the fact that he is or was such a director, officer, employee or agent of the
Company, whether or not he continues to be such at the time such expenses and
liabilities shall have been imposed or incurred, and to pay the expenses of such
officer or director in advance of the final disposition of such proceeding, to
the extent permitted by the laws of the State of Delaware, as they may be
amended from time to time.
Under the provisions of Article ELEVENTH of the Certificate of
Incorporation of the Company, a director of the Company shall not have personal
liability to the Company or to any of its stockholders for monetary damages for
a breach of his fiduciary duty as a director, except as otherwise provided by
the laws of the State of Delaware.
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<PAGE>
The Company maintains indemnity insurance for its officers and
directors, insuring them against (i) expenses incurred by them in any proceeding
and (ii) any liabilities asserted against them in their capacities as officers
and/or directors of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange Commission
promulgated under the Securities Act of 1933:
(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 this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To 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) 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 Securities Exchange Act of 1934 that are
incorporated by reference in this 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; and
(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.
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<PAGE>
The undersigned Registrant hereby undertakes 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 section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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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<PAGE>
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
appoints Loren J. Hulber and Marie L. Martino as attorneys-in-fact with full
power of substitution, severally, to execute in the name and on behalf of the
Registrant and each such person, individually and in each capacity stated below,
one or more amendments (including post-effective amendments) to this
Registration Statement as the attorney-in-fact acting in the premises deems
appropriate and to file any such amendment to this Registration Statement with
the Securities and Exchange Commission.
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 Norristown and Commonwealth of Pennsylvania on the
27th day of February, 1998.
NOVACARE EMPLOYEE SERVICES, INC.
By /s/ Loren J. Hulber
---------------------------------
Loren J. Hulber
President and Chief
Executive Officer
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 Title
By Director,
-------------------------------- Chairman of the Board __________, 1998
E. Martin Gibson
By /s/ Loren J. Hulber Director, President and February 27, 1998
-------------------------------- Chief Executive Officer
Loren J. Hulber
By /s/ Thomas D. Schubert Sr. Vice President, and February 27, 1998
-------------------------------- Chief Financial and
Thomas D. Schubert Accounting Officer
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<PAGE>
By /s/ Harvey V. Fineberg, MD, PhD Director February 27, 1998
-------------------------------
Harvey V. Fineberg, MD, PhD
By /s/ John H. Foster Director February 27, 1998
--------------------------------
John H. Foster
By /s/ Timothy E. Foster Director February 27, 1998
--------------------------------
Timothy E. Foster
By /s/ Stephen E. O'Neil Director February 27, 1998
--------------------------------
Stephen E. O'Neil
6
<PAGE>
INDEX TO EXHIBITS
Number Description of Exhibit Page
4(i) - Certificate of Incorporation of
the Company (Incorporated by
reference to Exhibit 3(a) to
Registration Statement on
Form S-1 No. 333-35071) --
4(ii) - By-Laws of the Company
(Incorporated by reference to
Exhibit 3(b) to Registration
Statement on Form S-1
No. 333-35071) --
4(iii) - 1997 Stock Option Plan (Incorporated
by reference to Exhibit 4(a) to
Registration Statement on Form S-1
No. 333-35071) --
4(iv) - Amendment No. 1 to the 1997
Stock Option Plan, dated as
of November 24, 1997
(Incorporated by reference to
Exhibit 4(a) to the Company's
Quarterly Report on Form 10-Q
for the quarter ended
December 31, 1997) --
5 - Opinion of Marie L. Martino, Esq. 8
23(i) - Consent of Price Waterhouse 9
23(ii) - Consent of Marie L. Martino, Esq. 10
24 - Power of Attorney (See "Power
of Attorney" in the Registration
Statement) --
7
Exhibit 5
February 24, 1998
NovaCare Employee Services, Inc.
2621 Van Buren Avenue
Norristown, PA 19403
Ladies and Gentlemen:
I am General Counsel of NovaCare Employee Services, Inc., a Delaware
corporation (the "Company"), and I have acted as counsel for the Company in
connection with the registration statement on Form S-8 being filed by the
Company under the Securities Act of 1933, as amended, with respect to 1,625,000
shares of Common Stock (the "Common Stock"), par value $0.01 per share, of the
Company to be issued pursuant to the NovaCare Employee Services, Inc. 1997 Stock
Option Plan (the "Plan").
I have reviewed the Company's Restated Certificate of Incorporation, its
By-Laws and such other corporate records of the Company and documents and
certificates of public officials and others as I have deemed necessary as a
basis for the opinion hereinafter expressed.
Based on the foregoing and having regard for such legal considerations as
I deem relevant, I am of the opinion that the shares of Common Stock, when
issued and delivered in accordance with the terms of the options issued under
the Plan, will be duly authorized, validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
aforesaid registration statement.
Sincerely,
By /s/ Marie L. Martino
---------------------------------
Marie L. Martino
Senior Vice President,
General Counsel and Secretary
8
Exhibit 23(i)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 31, 1997, except for notes 1 and
13 as to which the date is November 10, 1997, appearing on page F-3 of NovaCare
Employee Services, Inc.'s Registration Statement dated November 11, 1997
contained on Form S-1.
By /s/ PRICE WATERHOUSE LLP
------------------------
PRICE WATERHOUSE LLP
Philadelphia, PA
February 24, 1998
9
Exhibit 23(ii)
CONSENT OF COUNSEL
The consent of Marie L. Martino, Esq. is contained in her opinion
filed as Exhibit 5 to this Registration Statement.
10
