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As filed with the Securities and Exchange Commission on October 26, 1998
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.
(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. 1994 Performance-Based Stock Option Plan
(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
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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
<S> <C> <C> <C> <C>
Class A
Common Stock, 3,400,000(3) shares $0.55 $1,870,000 $519.86
par value
$.01 per share
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Staff Builders, Inc. 1994 Performance-Based Stock Option Plan (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
average of the high and low prices of Staff Builders, Inc.'s Class A
Common Stock, par value $.01 per share (the "COMMON STOCK"), on October
19, 1998, as quoted on the NASDAQ Stock Market's National Market.
(3) Represents shares issuable under the Plan.
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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") pursuant to Rule 424
under the Securities Act.
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 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, 1998.
b. The Company's quarterly reports on Form 10-Q for the quarters
ended May 31, 1998 and August 31, 1998.
c. The Company's current report on Form 8-K dated October 22, 1998.
d. The description of the Company's 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.
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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 hi 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
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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 director so 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 Staff Builder's Inc. 1994 Performance-Based Stock Option Plan
(incorporated by reference to Exhibit B to the Company's Proxy
Statement, dated July 18, 1994, filed with the Commission on July
27, 1994.
5.1 Opinion of Richards & O'Neil, LLP.
23.1 Consent of Deloitte & Touche, LLP 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 for the fiscal year ended February 28, 1998.
23.2 Consent of Richards & O'Neil, LLP (included in the opinion filed
as Exhibit 5.1).
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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, represents 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 aggregated, the changes in volume and price
represent no more than 20 percent 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this item 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.
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(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.
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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 Village of Lake Success, State of New York, on this
26th day of October, 1998.
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,
Stephen Savitsky President and Chief Executive 1998
Officer (Principal Executive
Officer) and Director
/s/ David Savitsky Executive Vice President, October 26,
David Savitsky Chief Operating Officer, 1998
Secretary, Treasurer and
Director
/s/ Dale R. Clift Executive Vice President, October 26,
Dale R. Clift Finance and Chief Financial 1998
Officer (Principal Financial
Officer)
/s/ Willard T. Derr Sr. Vice President -- Controller October 26,
Willard T. Derr (Principal Accounting Officer) 1998
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Signature Title Date
- --------- ----- ----
/s/ Bernard J. Firestone Director October 26,
Bernard J. Firestone, Ph.D. 1998
/s/ Jonathan J. Halpert Director October 26,
Jonathan J. Halpert Ph.D. 1998
/s/ Donald Meyers Director October 26,
Donald Meyers 1998
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Staff Builder's Inc. 1994 Performance-Based Stock Option Plan
(incorporated by reference to Exhibit B to the Company's Proxy
Statement, dated July 18, 1994, filed with the Commission on July
27, 1994).
5.1 Opinion of Richards & O'Neil, LLP.
23.1 Consent of Deloitte & Touche, LLP 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 for
the fiscal year ended February 28, 1998.
23.2 Consent of Richards & O'Neil, LLP (included in the opinion filed as
Exhibit 5.1).
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EXHIBIT 5.1
FORM OF RICHARDS & O'NEIL, LLP
S-8 OPINION
October 23, 1998
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 counsel to Staff Builders, Inc., a Delaware
corporation (the "COMPANY"), in connection with the proposed issuance of up to
an aggregate of 3,400,000 shares (the "SHARES") of the Company's Class A Common
Stock, par value $.01 per share ("COMMON STOCK"), pursuant to the Company's 1994
Performance-Based Stock Option Plan (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 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 Common Stock reserved for 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.
Our opinions expressed below are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the federal
law of the United States of America.
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 agreements executed thereunder, will be
validly issued, fully-paid and nonassessable.
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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
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EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement of Staff Builders, Inc. (the "COMPANY") on Form S-8 of our report
dated April 20, 1998, included in the Company's annual report on Form 10-K for
the fiscal year ended February 28, 1998.
/s/ Deloitte & Touche, LLP
Jericho, New York
October 23, 1998
