<PAGE>
As filed with the Securities and Exchange Commission on November 2, 1995
Registration No. 33-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
Staff Builders, Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 11-2650500
--------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1983 Marcus Avenue, Lake Success, New York 11042
-----------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Staff Builders, Inc. 1986 Non-Qualified Stock Option Plan
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(Full title of the plan)
Stephen Savitsky
Chairman of the Board, President
and Chief Executive Officer
Staff Builders, Inc.
1983 Marcus Avenue
Lake Success, New York 11042
-------------------------------------------
(Name and address of agent for service)
(516) 358-1000
------------------------
(Telephone number, including area code, of agent for service)
Copy to:
Floyd I. Wittlin, Esq.
Richards & O'Neil,LLP
885 Third Avenue
New York, New York 10022-4873
(212) 207-1200
-------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registra-
registered registered(1) per share(2) price(2) tion fee(3)
- ---------- ------------- ------------ -------- ---------
<S> <C> <C> <C> <C>
Class A
Common Stock, 972,190 shares $4.75 $4,617,902.50 $1,592.38
par value
$.01 per share
</TABLE>
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement also covers such
additional indeterminate number of shares as may be issuable with
respect to such shares pursuant to the anti-dilution provisions of the
Staff Builders, Inc. 1986 Non-Qualified Stock Option Plan, as amended
(the "Plan").
(2) The proposed maximum aggregate offering price, estimated solely for
the purpose of calculating the registration fee, has been computed
pursuant to Rule 457(h) promulgated under the Securities Act and is
based on the offering price of $4.75 per share which is the average
of the high and low prices of Staff Builders, Inc.'s Common Stock, par
value $.01 per share (the "Common Stock"), on October 26, 1995, as
quoted on the National Association of Securities Dealers Automated
Quotation National Market System.
(3) Previously, Staff Builders, Inc. filed (i) a Registration Statement on
Form S-8 (Registration No. 33-48157) by which 1,000,000 shares of
Common Stock were registered pursuant to the Plan and (ii) a
Registration Statement on Form S-8 (Registration No. 33-25854) by
which an additional 1,500,000 shares of Common Stock were registered
pursuant to the Plan. Items (i) and (ii) collectively referred to as
the "Prior Registration Statements." Simultaneously with the filing
of this Registration Statement, Staff Builders, Inc. is withdrawing
the Prior Registration Statements. At the time of withdrawal of
such Registration Statements, options to purchase 972,190 shares of
Common Stock remained outstanding. The 972,190 underlying shares had
been registered on the Prior Registration Statements. Registration
fees in the amount of $2,823.50 were previously paid with respect to
the Prior Registration Statements. Pursuant to Rule 429 of the
Securities Act Staff Builders, Inc. has applied the applicable
percentage of the previously paid fee to the amount of this
registration fee. The applicable percentage of the previously paid
fee is $1,097.99. Therefore, the balance of the fee due is $494.39.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document or documents containing the information specified in Part
I are not required to be filed by Staff Builders, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") as part of this Form S-8
Registration Statement (the "Registration Statement").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been previously filed by the Company with
the Commission and are incorporated as of their respective dates in this
Registration Statement by reference:
a. The Company's annual report on Form 10-K, as amended, for the
fiscal year ended February 28, 1995.
b. The Company's quarterly reports on Form 10-Q for the quarters
ended May 31, 1995 and August 31, 1995.
c. The description of the Company's Class A Common Stock, par value
$.01 per share (the "Class A Common Stock"), contained in its Registration
Statement on Form 8-A, as amended by Amendment No. 1 to the Registration
Statement on Form 8-A of the Company, which was declared effective on
October 26, 1995.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") after the date of this Registration Statement and
prior to such time as the Company files a post-effective amendment to this
Registration Statement indicating that all securities offered hereby have been
sold, or which deregisters all such 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. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
<PAGE>
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 Restated Certificate of Incorporation of the Company, as amended,
provides that (i) the Company shall, to the fullest extent permitted by Section
145 of the Delaware General Corporation Law ("Section 145"), indemnify all
persons whom it may indemnify pursuant thereto and (ii) the personal liability
of the directors of the Company is eliminated to the fullest extent permitted by
Section 102(b)(7) of the Delaware General Corporation Law ("Section 102(b)(7)").
The Company has entered into separate indemnification agreements with certain of
its officers to the same effect.
Section 145 permits the Company to indemnify any person who was or is
a party or is threatened to be made party to a threatened, pending or completed
administrative, investigative, civil or criminal action, suit or proceeding
(other than an action by or in the right of the registrant in question) by
reason of the fact that he is or was a director, officer, employee or agent of
the registrant, or is or was serving at the request of the registrant as a
director, officer, employee or agent of another company, partnership, joint
venture, trust or "other enterprise", against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement he actually and
reasonably incurred in connection with such an action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of such registrant (and, in the case of a criminal
action or proceeding, had no reason to believe his conduct was unlawful). In
the case of an action by or in the right of the Company, he may not be
indemnified in respect of any claim, issue or matter as to which he was adjudged
liable to the Company unless and only to the extent that the court determines
that he is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper.
Payment may be made in advance of the final disposition of any civil,
criminal, administrative or investigative action, suit or proceeding if the
officer or director agrees to repay to the Company such amount in the event it
is determined that he was not entitled to it. Indemnification against expenses
(including attorneys' fees) actually and reasonably incurred must be given under
Section 145 to the extent an officer, director, employee or agent is successful
in an action described above.
In addition, Section 145 permits the Company to purchase and maintain
insurance on behalf of any officer, director, employee and agent of the Company
or any person serving at the request of the Company as an officer, director,
employee or agent of
<PAGE>
another corporation serving as described above whether or not the Company would
have the power to indemnify him under Section 145. The Company maintains
directors and officers liability insurance for all duly elected or appointed
officers and directors of the Company.
Section 102(b)(7) permits the Company to eliminate or limit the
personal liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company, pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the 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
The following exhibits are filed (except where otherwise indicated) as
part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
4.1 Restated Certificate of Incorporation of the Company,
filed July 11, 1988 (incorporated by reference to Exhibit
3.1 of the Company's Form 10-K for the fiscal year ended
February 28, 1995).
4.2 Certificate of Amendment to the Restated Certificate of
Incorporation of the Company, filed August 22, 1991
(incorporated by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1 (File No. 33-43728)
filed with the Commission on January 29, 1992.
4.3 Certificate of Amendment to the Restated Certificate of
Incorporation of the Company, filed September 3, 1992
(incorporated by reference to Exhibit 3.3 of the
<PAGE>
Company's Form 10-K for the fiscal year ended February
28, 1995).
4.4 Certificate of Retirement of Stock of the Company, filed
February 28, 1994 (incorporated by reference to Exhibit 3.4
of the Company's Form 10-K for the fiscal year ended
February 28, 1994).
4.5 Certificate of Retirement of Stock of the Company, filed
June 3, 1994 (incorporated by reference to Exhibit 3.5
of the Company's Form 10-K for the fiscal year ended
February 28, 1995).
4.6 Certificate of Designation, Rights and Preferences of the
Class A Preferred Stock of the Company, filed June 6, 1994
(incorporated by reference to Exhibit 3.6 of the Company's
Form 10-K for the fiscal year ended February 28, 1995).
4.7 Certificate of Amendment of Restated Certificate of
Incorporation of the Company, filed August 23, 1994
(incorporated by reference to Exhibit 3.7 of the Company's
Form 10-K for the fiscal year ended February 28, 1995).
4.8 Amended and Restated By-Laws of the Company (incorporated
by reference to Exhibit 3.8 of the Company's Form 10-K
for the fiscal year ended February 28, 1995).
4.9 1986 Non-Qualified Stock Option Plan of the Company
(incorporated by reference to the Company's Registration
Statement on Form S-4, as amended (File No. 33-4261) dated
April 9, 1987).
4.10 First Amendment to 1986 Non-Qualified Stock Option Plan,
effective as of May 11, 1990 (incorporated by reference
to Exhibit 10.8 of the Company's Form 10-K for the fiscal
year ended February 28, 1995).
4.11 Resolutions of the Company's Board of Directors amending
the 1983 Incentive Stock Option Plan and the 1986
Non-Qualified Stock Option Plan, dated as of June 3, 1991
(incorporated by reference to Exhibit 10.9 of the Company's
Form 10-K for the fiscal year ended February 28, 1995).
4.12 Amendment to the 1986 Non-Qualified Stock Option
Plan dated as of October 27, 1995.
5 Opinion of Richards & O'Neil, LLP as to the legality of the
securities being registered.
23.1 Consent of Deloitte & Touche to the incorporation by
reference in this Registration Statement of their report
on the financial statements included in the Company's
annual report on Form 10-K/A for the fiscal year ended
February 28, 1995.
23.2 Consent of Richards & O'Neil, LLP (included in the opinion
filed as Exhibit 5).
ITEM 9. UNDERTAKINGS
(a) 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, 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 value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and
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 20 percent change in the 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;
<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(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 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 registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) 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 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to 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.
(c) 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 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 and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 New York, State of New York, on this 26th day
of October, 1995.
STAFF BUILDERS, INC.
By:/S/ STEPHEN SAVITSKY
---------------------------------
Stephen Savitsky
Chairman of the Board,
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Stephen Savitsky Chairman of the Board, October 26, 1995
----------------------- President and Chief
Stephen Savitsky Executive Officer (principal
executive officer)
/s/ David Savitsky Executive Vice President, October 26, 1995
----------------------- Chief Operating Officer,
David Savitsky Secretary, Treasurer, and
Director
/s/ Gary Tighe Senior Vice President, October 26, 1995
----------------------- Finance and Chief Financial
Gary Tighe Officer (principal financial
officer and principal
accounting officer)
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Bernard J. Firestone Director October 26, 1995
---------------------------
Bernard J. Firestone, Ph.D.
/s/ Jonathan J. Halpert Director October 26, 1995
---------------------------
Jonathan J. Halpert, Ph.D.
/s/ Donald Meyers Director October 26, 1995
---------------------------
Donald Meyers
<PAGE>
EXHIBIT INDEX
Location of
Exhibit No. Description of Exhibit Exhibit
----------- ---------------------- ----------------
4.1 Restated Certificate of Incorporated by
Incorporation of the reference.
Company, filed July 11,
1988.
4.2 Certificate of Amendment Incorporated by
to the Restated reference.
Certificate of
Incorporation of the
Company, filed August 22,
1991.
4.3 Certificate of Amendment Incorporated by
to the Restated reference.
Certificate of
Incorporation of the
Company, filed September
3, 1992.
4.4 Certificate of Retirement Incorporated by
of Stock of the Company, reference.
filed February 28, 1994.
4.5 Certificate of Retirement Incorporated by
of Stock of the Company, reference.
filed June 3, 1994.
4.6 Certificate of Designation, Incorporated by
Rights and Preferences of the reference.
Class A Preferred Stock of
the Company, filed June 6,
1994.
4.7 Certificate of Amendment of Incorporated by
Restated Certificate of reference.
Incorporation of the Company,
filed August 23, 1994.
4.8 Amended and Restated By- Incorporated by
Laws of the Company. reference.
4.9 1986 Non-Qualified Stock Incorporated by
Option Plan of the Company. reference.
4.10 First Amendment to 1986 Non- Incorporated by
Qualified Stock Option reference.
Plan, effectove as of
May 11, 1990.
4.11 Resolutions of the Company's Incorporated by
Board of Directors reference.
amending the 1983 Incentive
Stock Option Plan and
the 1986 Non-Qualified Stock
Option Plan, dated as
of June 3, 1991.
4.12 Amendment to the 1986
Non-Qualified Stock Option
Plan dated as of October 27, 1995.
<PAGE>
Location of
Exhibit No. Description of Exhibit Exhibit
----------- ---------------------- ----------------
5 Opinion of Richards &
O'Neil, LLP as to the legality
of the securities being
registered.
23.1 Consent of Deloitte &
Touche to the
incorporation by reference
in this Registration
Statement of their report
on the financial
statements included in the
Company's annual report on
Form 10-K/A for the fiscal
year ended February 28,
1995.
23.2 Consent of Richards & Incorporated by
O'Neil, LLP (included in the reference.
opinion filed as Exhibit
5).
<PAGE>
AMENDMENT TO STAFF BUILDERS, INC.
1986 NON-QUALIFIED STOCK OPTION PLAN
The Staff Builders, Inc. (the "Corporation") 1986 Non-Qualified Stock
Option Plan (the "Plan") is hereby amended as follows:
All references to, and all terms and provisions of, the Plan relating to
the common stock of the Corporation shall be deemed to be references to and
relating to for all purposes and in all cases, the Class A Common Stock of
the Corporation.
This amendment shall be effective as of October 27, 1995.
STAFF BUILDERS, INC.
By:/s/ Stephen Savitsky
--------------------
Stephen Savitsky
Chairman of the Board,
President and
Chief Executive Officer
<PAGE>
EXHIBIT 5
[RICHARDS & O'NEIL, LLP LETTERHEAD]
(212) 207-1200
October 26, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Staff Builders, Inc.
--------------------
Dear Sir or Madam:
We have acted as special counsel to Staff Builders, Inc., a Delaware
corporation (the "Company"), in connection with the proposed issuance of up to
an aggregate of 972,190 shares (the "Shares") of the Company's Class A common
stock, par value $.01 per share ("Class A Common Stock"), pursuant to the
Company's 1986 Non-Qualified Stock Option Plan, as amended (the "Plan").
As such counsel, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purpose of rendering
this opinion. In our examinations, we have assumed the genuineness of all
documents submitted to us as originals and the conformity to originals and
certified documents of all copies submitted to us as conformed copies.
In rendering the opinion below, we have assumed that (a) upon exercise
of the options granted under the Plan (the "Options"), the Company will have a
sufficient number of authorized shares of Class A Common Stock not reserved for
other purposes to permit the issuance of the Shares; and (b) prior to the dates
of exercise of the Options, no change occurs in the applicable law or the
pertinent facts.
<PAGE>
Securities and Exchange Commission
October 26, 1995
Page 2
We do not purport to be experts in, or to express any opinion herein
concerning, the law of any jurisdiction other than the State of New York, the
United States of America and the State of Delaware (but only insofar as set
forth in the General Corporation Law of the State of Delaware).
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and reserved for issuance by the Company upon exercise of
the Options and, when issued and sold against payment therefor in accordance
with the terms of the Plan and the subscription agreements executed thereunder,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 being filed herewith by the Company with the
Securities and Exchange Commission. In giving such consent, we do not thereby
admit that we are within the category of persons whose consent is required by
Section 7 of the Securities Act of 1933, as amended, and the Rules and
Regulations promulgated thereunder.
Very truly yours,
/s/ Richards & O'Neil,LLP
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Staff Builders, Inc. on Form S-8 of our report dated April 13, 1995, appearing
in the Annual Report on Form 10-K/A of Staff Builders, Inc. for the year ended
February 28, 1995.
Deloitte & Touche LLP
Jericho, New York
October 25, 1995
