As filed with the Securities and Exchange Commission on November 19, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
OAK TREE MEDICAL SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 02-0401674
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
163-03 Horace Harding Expressway, Flushing, New York 11365
(Address of Registrant's principal executive offices and zip code)
Registrant's telephone number, including area code: (718) 961-5224
Consulting Agreement between Oak Tree Medical Systems, Inc.
and William Kedersha
(Full title of the plan)
Richard P. Greene, P.A.
2455 E Sunrise Blvd. Suite 905, Ft Lauderdale, Florida 33304
(954) 564-6616
(Address, including zip code, and telephone number, including area code, of
agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
Title of Each Class Proposed Maximum Proposed Maximum Amount
of Securities Amount Offering Aggregate of
to be to be Price per Offering Registration
Registered Registered Share/Option Price Fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
KEDERSHA:
Common Stock(1) 28,708 $2.00(2) $57,416 $15.96
TOTAL $15.96(3)
- ----------------------------------------------------------------------------------------------------------------
<FN>
(1) Represents shares issuable under certain conditions to William Kedersha.
(2) The prices hereof may change prior to the effective date of the
Registration Statement; therefore, such prices are estimated solely for
the purposes of computing the registration fee pursuant to Rule 457(a).
(3) Reflects the required filing fee.
</FN>
</TABLE>
<PAGE>
PART I
Item 1. Plan Information.
Not applicable.
Item 2. Registrant Information and Employee Plan Annual Information.
Not applicable.
PART II
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates the following documents by reference in
this Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended May 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended August 31, 1998;
(c) The Registrant's Articles of Incorporation and Amendments thereto,
and the Registrant's Bylaws;
(d) All other documents filed by Registrant after the date of this
Registration Statement under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment to this Registration Statement that registers securities covered
hereunder that remain unsold.
Item 4. Description of Securities.
The class of securities to be offered hereby is subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended. The
Company's authorized capitalization is 25,000,000 shares of common stock, $.01
par value, of which 5,302,859 shares of common stock are issued and outstanding.
Holders of the Company's Common Stock are entitled to one vote per
share on each matter submitted to vote at any meeting of shareholders. Shares of
Common Stock do not carry cumulative voting rights and therefore, holders of a
majority of the outstanding shares of Common Stock will be able to elect the
entire board of directors and, if they do so, minority shareholders would not be
able to elect any members to the board of directors. The Company's board of
directors has authority, without action by the Company's shareholders, to issue
all or any portion of the authorized but unissued shares of Common Stock, which
would reduce the percentage ownership of the Company of its shareholders and
which would dilute the book value of the Common Stock.
<PAGE>
Shareholders of the Company have no preemptive rights to acquire
additional shares of Common Stock. The Common Stock is not subject to redemption
and carries no subscription or conversion rights. In the event of liquidation of
the Company, the shares of Common Stock are entitled to share equally in
corporate assets after the satisfaction of all liabilities. Holders of Common
Stock are entitled to receive such dividends as the board of directors may from
time to time declare out of funds legally available for the payment of
dividends. During the last two fiscal years the Company has not paid cash
dividends on its Common Stock and does not anticipate that it will pay cash
dividends in the foreseeable future.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
The Registrant is a Delaware corporation. The General Corporation Law
of Delaware provides authority for broad indemnification of directors, officers,
employees and agents. The Registrant's Articles of Incorporation, as Amended,
incorporate the indemnification provisions of the General Corporation Law of
Delaware to the fullest extent provided.
The Registrant has entered into indemnification agreements with its
Directors indemnifying them against liability and reasonable costs and expenses
incurred in litigation arising by reason of the fact that he or she is or was a
director, officer, stockholder, employee, or agent of the Registrant, provided
that the director acted in good faith and in a manner reasonably intended to be
in or not opposed to the best interests of the Registrant, and with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
EXHIBIT DESCRIPTION
- ------- -----------
5.1 Opinion of Richard P. Greene, P.A.
10.1 Agreement between the Registrant and William Kedersha, dated
April 24, 1998
23.1 Consent of Richard P. Greene, P.A.
23.2 Consent of Most Horowitz & Company, LLP
<PAGE>
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 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.
(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 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.
B. 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 15(d) 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.
C. 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 final adjudication of such issue.
<PAGE>
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 the Registration Statement 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 Miami, State of Florida,
on this 13th day of November, 1998.
OAK TREE MEDICAL SYSTEMS, INC.
By: /s/ HENRY DUBBIN
----------------------------------
Henry Dubbin, President
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
5.1 Opinion of Richard P. Greene, P.A.
10.1 Agreement between the Registrant and William
Kedersha, dated April 24, 1998
23.1 Consent of Richard P. Greene, P.A.
23.2 Consent of Most Horowitz & Company, LLP
EXHIBIT 5.1
LAW OFFICES
RICHARD P. GREENE, P.A.
INTERNATIONAL BUILDING
2455 EAST SUNRISE BOULEVARD
SUITE 905
FORT LAUDERDALE, FLORIDA 33304
------
TELEPHONE: (954) 564-6616
FAX: (954) 561-0997
November 17, 1998
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Oak Tree Medical Systems, Inc.
Gentlemen:
This opinion is given in connection with the registration with the
Securities and Exchange Commission of an aggregate of 28,708 shares of Common
Stock granted by Oak Tree Medical Systems, Inc. (the "Company"). The Shares are
being registered pursuant to a requirement of Section 5 of the Securities Act of
1933, as amended (the "Act") pursuant to a Registration Statement filed with the
Washington, D.C. Office of the United States Securities and Exchange Commission
(the "Registration Statement").
We have acted as counsel to the Company only in connection with the
preparation of the Form S-8 Registration Statement pursuant to which the Shares
were registered, in so acting, have examined the originals and copies of
corporate instruments, certificates and other documents of the Company and
interviewed representatives of the Company to the extent we deemed it necessary,
in order to form the basis for the opinion hereinafter set forth.
In such examination we have assumed the genuineness of all signatures
and authenticity of all documents submitted to me as certified or photostatic
copies. As to all questions of fact material to this opinion which have not been
independently established, we have relied upon statements or certificates of
officers or representatives of the Company.
The 28,708 shares of Common Stock are being registered and distributed
pursuant to the Company's Registration Statement. The shares of Common Stock are
now authorized but unissued.
Based upon the foregoing, we are of the opinion that:
1. The Shares of the Company registered with the Securities and
Exchange Commission, having been issued and sold pursuant to the Registration
Statement, are fully paid and non-assessable and there will be no personal
liability to the owners thereof.
<PAGE>
U.S. Securities and Exchange Commission
November 17, 1998
Page Two
This law firm hereby consents to the use of this opinion in connection
with the Company's Registration Statement and the inclusion of this opinion as
an Exhibit thereto.
Very truly yours,
RICHARD P. GREENE, P.A.
/s/ RICHARD P. GREENE
---------------------------
Richard P. Greene
For the Firm
RPG\evb
EXHIBIT 10.1
AGREEMENT, dated April 24, 1998 between Oak Tree Medical Systems, Inc. and all
its Subsidiaries, and William Kedersha
This letter sets forth the terms and conditions upon which William Kedersha, his
successors and/or assigns (including and limited to any partnership, joint
venture, corporation or other entity of which he is or may be associated with)
(hereinafter referred to as the "Consultant") will act as an advisor to Oak Tree
Medical Systems, Inc. and/or all of its Subsidiaries (hereinafter referred to as
"OAK" or the "Company") in an effort to:
A. Transfer by way of sale or otherwise one or more of OAK's present
facilities to any entity or individual, (hereinafter referred to as
"PURCHASER:) that William Kedersha enters into negotiations with on
behalf of Oak Tree and which results in a sale or other comparable
transaction. It is agreed that any individual or entity which Kedersha
introduces to Oak Tree or which he enters into negotiations with or on
behalf of Oak Tree shall be deemed to be Kedersha's sole contact
entitling him to all compensation as noted herein. This provision shall
apply to all individuals and entities which may or may not have
previously contacted Oak Tree or any of its officers, directors or
representatives regarding any transaction relating to but not limited
to a sale or purchase of any of Oak Tree's facilities. In all cases,
Oak Tree must pre-approve potential Kedersha contacts.
I. SCOPE OF ENGAGEMENT. The Consultant will act as advisor and consultant
to the Company and, in such capacity, will advise the Company with respect to
structuring and/or financing a sale of any of Oak Tree's facilities and such
other matters within Kedersha's areas of expertise.
II. RESPONSIBILITY AND SERVICE PROVIDED. With respect to the scope of
assignment and at all times subject to Paragraph 8 hereof, the Consultant will:
a. Familiarize itself with the business, operations, management,
financial condition, and future prospects of the Company and new
business acquisitions and/facility sales opportunities;
b. Evaluate potential acquisitions and various capital structures
that address the Company's sale of one or more of their
facilities;
c. Determine potential sources of capital, investment terms and
related strategy issues as may be possible to consummate a
transaction on behalf of Oak;
d. Meet and communicate with any purchaser, their advisor, or other
member of a potential purchaser as is necessary to perform within
the scope and guidelines of this Agreement
III. COMPENSATION TO THE CONSULTANT. As compensation for the Consultant's
services hereunder, the Consultant shall be paid if any purchase,
transfer of interest or control, or other comparable business
transaction takes place between Oak & an individual or entity as
described within this agreement. The Consultant's compensation shall
become due and payable immediately at closing. If cash is part of the
closing payment, Oak may first allow closing funds to clear its bank
before paying consultant. Consultant shall be paid the day such funds
clear Oak's bank. If Oak agrees and accepts a transaction where no cash
is received as part of the transaction, Consultant must still paid at
closing. If Oak agrees to a sale or comparable conclusion resulting in
either a sale or comparable transaction between Oak & an individual or
entity as described within this agreement, Kedersha shall be paid at
closing. Compensation to the Consultant for services shall be as
follows:
A. IN THE EVENT PURCHASER ACQUIRES (OR IS ACQUIRED) ONE OR MORE OAK
FACILITIES OR OAK TREE ACQUIRES ONE OR MORE OF PURCHASER'S FACILITIES:
1. A payment of 10%* of the cumulative value of the total sales
price or comparable valuation of a comparable transaction.
Payment shall be paid in full at or before the closing.
Kedersha shall not be paid until Oak Tree's funds received
have been deposited and have cleared, or beneficial change of
control of the subject OAK facility(ies) to PURCHASER or a new
entity or individual that is introduced to OAK by Kedersha and
also,
* Kedersha agrees to accept Oak Tree stock as payment of Oak Tree's option.
Share price agreed is $2.00.
Page 1 of 3
<PAGE>
2. It is agreed between the parties that time is of the essence
regarding the provisions of this subparagraph. If Kedersha
does not receive his cash payment and authorized expense
reimbursement at closing. Kedersha shall not be paid until Oak
Tree's funds received have been deposited and have cleared, or
beneficial change of control of the subject OAK facility(ies)
to PURCHASER or a new entity or individual that is introduced
to OAK by Kedersha, he shall be entitled to a $5,000 cash late
penalty and thereafter $1,000 per day for each day he does not
receive the cash payment (including any outstanding expenses)
and penalty payment. All forms of payments must be received
simultaneously or the daily penalty will continue to accrue
until such time as all payments are received
IV. TERM OF ENGAGEMENT. The engagement of the Consultant pursuant to the
terms of this Letter Agreement shall be effective commencing on the day hereof
and shall continue until July 31st, 1998; provided, however, that the Company
may terminate this Agreement at any time, for any reason, by giving 45 days
prior written notice of such termination to the Consultant.
a. Notwithstanding the expiration or termination of this Agreement, the
Consultant shall receive all compensation due hereunder should any
agreement be entered into between OAK and an individual or entity as
described within this agreement within eighteen (18) months of the
expiration or termination of this Agreement, regardless of whether it
is asserted that the efforts of the Consultant were a material
contribution to the formation of the agreement.
V. CONFIDENTIALITY. Each of the parties agrees to keep any information
with respect to each other and this Agreement confidential and not to make use
thereof except as may be required by applicable law or judicial process. Each
party will not be identified or referred to in any public release or
communication prepared by either party or any of their affiliates or associates
without the other party's prior written consent.
VI. COMPANY'S OBLIGATIONS. The Company will continuously and timely apprize
the Consultant of any and all material matters relevant to the Company's
business as relates to Purchaser and OAK. The Company recognizes, agrees and
confirms that Consultant (i) will be using and relying on information available
from the Company and generally recognized public sources (the "information"),
without having independently verified the same, and; (ii) does not assume
responsibility for the accuracy of completeness of the information. The Company
will, in addition to any other duties of indemnification set forth in this
Letter Agreement, indemnify and hold Consultant harmless for any claim suit or
judgment arising out of Consultant's use of any information concerning the
Company furnished by the Company to the Consultant or which the Company provided
to any public source.
VII. LIMITATION OF LIABILITY AND INDEMNIFICATION. In performing its services
under this Agreement, neither Consultant nor any officer, director, employee,
shareholder, attorney, or agent of the Consultant will be liable to the Company
or its creditors for errors or judgment or for any other acts, except for acts
of gross negligence by the Consultant. Notwithstanding anything contained in
this Agreement, in the event that Consultant incurs any liability or obligations
in connection with the performance of its services under this Agreement, the
Company shall indemnify the Consultant for all of such liabilities, obligations,
expenses, or costs arising therefrom, including reasonable legal fees incurred
by Consultant, except for (i) actions of the Consultant which have not been
authorized by the Company and (ii) acts of gross negligence by the Consultant.
VIII. RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall be
construed to place the Consultant and the Company in the relationship of
partners or joint venturers. Neither the Consultant nor the Company shall
represent itself as the agent or legal representative of the other for any
purpose whatsoever. The Consultant, in performing its service hereunder, shall
at all times be an independent contractor.
Page 2 of 3
<PAGE>
IX. MISCELLANEOUS. Notwithstanding anything to the contrary contained
herein, the provisions concerning confidentiality, indemnification and
contribution, and the Company's obligations to pay fees and reimburse expenses,
contained herein shall survive any expiration or termination of this Agreement.
This Agreement may not be amended or modified except in writing signed by both
parties and shall be governed by, and construed in accordance with, the laws of
the State of New York without reference to principles of conflicts of law
thereof.
If the foregoing conforms to your understanding, please sign, and date and
return to us the enclosed copy of this letter.
IN WITNESS WHEREOF, the parties have executed this agreement the date first
above written.
WILLIAM KEDERSHA
ATTEST:
By: /s/ WILLIAM KEDERSHA
--------------------------
William Kedersha
OAK TREE MEDICAL SYSTEMS, INC.
Henry Dubbin
ATTEST:
By: /s/ HENRY DUBBIN
--------------------------
President and Board Member
Board of Directors
ATTEST:
/s/ FRED SINGER
- -------------------
Fred Singer
Board Member
Page 3 of 3
EXHIBIT 23.1
LAW OFFICES
RICHARD P. GREENE, P.A.
INTERNATIONAL BUILDING
2455 EAST SUNRISE BOULEVARD
SUITE 905
FORT LAUDERDALE, FLORIDA 33304
------
TELEPHONE: (954) 564-6616
FAX: (954) 561-0997
November 17, 1998
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Oak Tree Medical Systems, Inc.
Dear Sir or Madam:
This Firm hereby consents to the use of its name in the Registration
Statement on Form S-8 as filed via EDGAR with the Washington, D.C. Office of the
U.S. Securities and Exchange Commission on November 18, 1998, or as soon
thereafter as is reasonably practicable.
Very truly yours,
RICHARD P. GREENE, P.A.
/s/ RICHARD P. GREENE
------------------------------------
Richard P. Greene
For the Firm
RPG/evb
EXHIBIT 23.2
Most Horowitz & Company, LLP
Certified Public Accountants
1133 Avenue of the Americas
New York, NY 10036
Tel: (212) 764-4910
Fax: (212) 575-2017
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-8, dated
November 11, 1998, of our report dated August 7, 1998, relating to the
consolidated financial statements of Oak Tree Medical Systems, Inc. and
Subsidiaries, as of May 31, 1998 and 1997.
/s/ MOST HOROWITZ & COMPANY, LLP
New York, New York
August 13, 1998
