As filed with the Securities and Exchange Commission on March 2, 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.
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(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
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(Address of Registrant's principal executive offices and zip code)
Registrant's telephone number, including area code: (718) 961-5224
Settlement Agreement between Oak Tree Medical Systems, Inc.
and Westcap Corp., Jerome Roth, President
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(Full title of the plan)
Richard P. Greene, P.A.
2455 E Sunrise Blvd. Suite 905, Ft Lauderdale, Florida 33304 (954) 564-6616
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(Address, including zip code, and telephone number, including area code, of
agent for service)
CALCULATION OF REGISTRATION FEE
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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
- --------------------------------------------------------------------------------
WESTCAP CORP.:
Common Stock(1)(2) 23,000 $2.00 $46,000 $13.57
TOTAL $13.57(3)
- --------------------------------------------------------------------------------
(1) Represents shares issuable under certain conditions to Westcap Corp.
(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.
<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, 1997;
(b) The Registrant's Quarterly Report on Form 10-QSB for the quarter ended
November 30, 1997;
(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 4,569,025 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.
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.
<PAGE>
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 Financial Advisory Agreement between the Registrant and
Westcap Corp., dated July 15, 1996
10.2 Stipulation and Order between the Registrant and Westcap
Corp., dated December 30, 1998
23.1 Consent of Richard P. Greene, P.A.
23.2 Consent of Most Horowitz & Company, LLP, CPA
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.
<PAGE>
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 Ft. Lauderdale, State of
Florida, on this 25th day of February, 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 Financial Advisory Agreement between the Registrant and
Westcap Corp., dated July 15, 1996
10.2 Stipulation and Order between the Registrant and
Westcap Corp., dated December 30, 1997
23.1 Consent of Richard P. Greene, P.A.
23.2 Consent of Most Horowitz & Company, LLP, CPA
EXHIBIT 5.1
February 25, 1998
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
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 23,000 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 23,000 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
February 25, 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, P.A.
-----------------------
Richard P. Greene
For the Firm
RPG/evb
EXHIBIT 10.1
WESTCAP CORP.
P.O. Box 458
Bedford Hills, New York 10507
July 15, 1996
Oak Tree Medical Systems, Inc.
Parkcenter Boulevard
Miami, Florida 33169
Attention: Mr. Irwin Bosh Stack
Re: FINANCIAL ADVISORY AGREEMENT
Dear Mr. Stack:
This letter sets forth the terms and conditions upon which Westcap Corp.
("Westcap") will act as financial advisor to Oak Tree Medical Systems, Inc. (the
"Company").
1. SCOPE OF ENGAGEMENT. Westcap will act as financial advisor and
consultant to the Company and, in such capacity, will advise the Company with
respect to structuring, financing, acquisitions and such other matters within
its areas of expertise as the Company may request.
2. RESPONSIBILITIES AND SERVICES PROVIDED. With respect to the scope of
assignment and at all times subject to Section 7 hereof, Westcap anticipates
that it will be necessary to complete at least the following specific services:
a. Familiarize itself with the business, operations, management,
financial condition, and future prospects of the Company and new
business opportunities;
b. Evaluate potential acquisitions and various capital structures that
incorporate the Company's funding requirements and determine the
costs and benefits associated with each;
c. Determine potential sources of capital, investment terms and related
strategy issues; and
d. Suggest, if possible, a program to meet the Company's needs and
requirements.
3. COMPENSATION TO WESTCAP. (a) As compensation for Westcap's services
hereunder, the Company shall pay to Westcap a monthly fee of $5,000 during the
term of this Letter Agreement. The first monthly fee shall be payable upon the
execution of this Letter Agreement by the Company, and each successive monthly
fee shall be paid on the 15th day of each successive month during the term of
this Letter Agreement.
(b) As additional compensation for Westcap's services hereunder, not
later than ten (10) days following the date of execution of this Letter
Agreement by the Company, the Company will issue 250,000 warrants (the
"Warrants") to Westcap or Westcap's designee exercisable for the purchase of up
to 250,000 shares of the Company's Common Stock ("Common Stock"), upon the
following terms:
<PAGE>
i. 100,000 of the Warrants shall be immediately exercisable for
one share of Common Stock at an exercise price per share equal
to $5.00; these Warrants shall be exercisable until January
15, 1998;
ii. 75,000 of the Warrants shall be immediately exercisable for
one share of Common Stock at an exercise price per share equal
to $6.00; these Warrants shall be exercisable until July 15,
1998; and
iii. 75,000 of the Warrants shall be immediately exercisable for
one share of Common Stock at an exercise price per share equal
to $7.00; these Warrants shall be exercisable until July 15,
1998;
Subject to the foregoing, the Warrants shall be in a form acceptable to
Westcap, including provisions for antidilution (which antidilution provisions
shall not be effective until such time as there are issued and outstanding an
aggregate of 3,250,000 shares of Common Stock and which antidilution provisions,
in any event, shall not be activated by issuances of Common Stock in connection
with the exercise of stock options granted prior to the date hereof) and
obligating the Company to file within 30 days following the date of issuance of
the Warrants an appropriate registration statement with the U.S. Securities and
Exchange Commission covering the Warrants and the shares of Common Stock
underlying the Warrants.
4. REIMBURSEMENT OF EXPENSES. The Company agrees to reimburse Westcap
on a monthly basis for all reasonable out-of-pocket expenses which have been
pre-approved.
5. TERMS OF ENGAGEMENT. The engagement of Westcap pursuant to the terms
of this Letter Agreement shall be effective commencing on the date hereof and
shall continue until July 15, 1998; provided, however, that the Company may
terminate this Letter Agreement (i) at any time prior to January 15, 1997 by
giving 90 days' prior written notice of such termination to Westcap and (ii) at
anytime after January 15, 1997 and prior to July 15, 1998 by giving 30 days'
prior written notice of such termination to Westcap.
6. OBLIGATIONS AND FEES. The obligation of the Company to pay any fees
or expenses set forth herein shall not be assigned, delegated or transferred to
any other person or entity without the prior written consent of Westcap. The
provisions below for indemnification of Westcap shall apply to this paragraph.
7. CONFIDENTIALITY. Each of the parties agrees to keep any information
with respect to each other and this agreement confidential and not 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.
-2-
<PAGE>
8. COMPANY'S OBLIGATIONS. The Company will continuously and timely
apprise Westcap of material matters relevant to the Company's business and
financial condition and prospect for such.
The Company recognizes, agrees and confirms that Westcap (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 Westcap
harmless for any claim, suit or judgement arising out of Westcap's use of any
information acquired from the Company and used by Westcap in carrying out its
duties pursuant to this Letter Agreement.
9. LIMITATION OF LIABILITY; INDEMNIFICATION. In performing its services
under this Agreement, neither Westcap nor any officer, director, employee,
shareholder, attorney, or agent of Westcap will be liable to the Company or its
creditors for errors or judgement or for any other acts, except for acts of
negligence of Westcap. Westcap will not be accountable for any loss suffered by
the Company by reason of the Company's actions or non-action on the basis of any
advice, recommendation, or approval of Westcap.
Notwithstanding anything contained in this Letter Agreement, in the event
that Westcap incurs any liability or obligations in connection with this Letter
Agreement, the Company shall indemnify Westcap for all of such liabilities,
obligations, expenses, or costs arising therefrom, including reasonable legal
fees incurred by Westcap, except for (i) actions of Westcap which have not been
authorized by the Company and (ii) acts of gross negligence of Westcap.
10. RELATIONSHIP OF THE PARTIES. Nothing in this Letter Agreement shall
be construed to place Westcap and the Company in the relationship of partners of
joint venturers. Neither Westcap nor the Company shall represent itself as the
agent or legal representative of the other for any purpose whatsoever. Westcap,
in performing its service hereunder, shall at all times be an independent
contractor.
11. MISCELLANEOUS. Notwithstanding anything to the contrary contained
herein, the provisions concerning confidentiality, indemnification, contribution
and the Company's obligations to pay fees and reimburse expenses contained
herein shall survive any expiration or termination of this Letter Agreement. The
Letter Agreement may not be amended or modified except in writing 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.
Westcap is delighted at the prospect of working with you.
-3-
<PAGE>
If the foregoing conforms to your understanding, please sign, and date and
return to us the enclosed copy of this letter.
Very truly yours,
WESTCAP CORP.
By: /s/ JEROME ROTH
---------------
Jerome Roth
President
The foregoing is in conformity with out understanding:
OAK TREE MEDICAL SYSTEMS, INC.
By: /s/ IRWIN BOSH STACK
---------------------
Irwin Bosh Stack
Chairman of the Board
-4-
EXHIBIT 10.2
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- ---------------------------------------X
WESTCAP CORPORATION, :
Index No.: 604059/97
Plaintiff, :
STIPULATION
AND ORDER
-against- :
OAK TREE MEDICAL SYSTEMS, INC. :
Defendant. :
- ---------------------------------------:
X
IT IS HEREBY STIPULATED AND AGREED, by and between the parties
herein, as follows:
1. In settlement of the claims asserted by Plaintiff and Defendant,
Defendant shall on or before 5:00 P.M. on January 5, 1998, wire transfer, or
hand deliver a bank check to Parker Chapin Flattau & Klimpl, LLP as attorneys
for Plaintiff in the sum of $5,000.
2. Defendant shall file a Form S-8 Registration Statement under the
Securities Act of 1933 registering with the Securities and Exchange Commission
22,000 shares of Defendant's common stock registered in the name of Westcap
Corporation, and shall cause such registration to become effective by no later
than February 23, 1998. Defendant shall deliver to Parker Chapin Flattau &
Klimpl, LLP the 22,00 shares of Defendant's common stock by no later than March
2, 1998. The parties agree that as of the date of this Stipulation and Order,
Defendant's common stock is trading at $2.093 per share. If, the closing bid
price for
<PAGE>
shares of Defendant's common stock on the date the registration statement is
filed is below $2.093 per share, Defendant shall issue such additional shares to
Plaintiff so that the average price of the shares of stock issued to Plaintiff
is at least $2.093 per share. In no event shall Defendant be required to issue
to plaintiff more than 2,500 additional shares.
3. Plaintiff shall not sell more than 5,000 shares of such common stock
per week.
4. In the event that: (a) the foregoing payment is not made to Plaintiff
as required by paragraph 1 of this Stipulation and Order, or Defendant has
failed to have the S-8 registration statement pursuant to paragraph 2 of this
Stipulation and Order become effective for any reason by February 23, 1998, or
has failed to deliver to Parker Chapin Flattau & Klimpl, LLP the 22,000 shares
of Defendant's common stock by March 2, 1998; (b) Plaintiff has given
Defendant's counsel written notice (by hand delivery or nationally recognized
overnight courier) of such default at the address of Higgins & Tippett, LLP, 330
Madison Avenue, New York, New York 10017 Attn: Lewis Trippett; and (c) the
default is not cured on or before 5:00 p.m. on the fifth business day after the
date of delivery of such notice, then Plaintiff shall, in any of such event,
have the right pursuant to CPLR 3215(i)(1), upon filing an affidavit as to
Defendant's failure to comply with the terms hereof, to have a judgment entered
in the amount of $50,000. Plaintiff shall also be entitled to an award of its
costs of enforcement of, and collection of all amounts due under, this
Stipulation and Order and any judgment entered, including reasonable attorney's
fees. Plaintiff may seek an award of those costs by special proceeding or
otherwise.
-2-
<PAGE>
5. Simultaneously with the execution of this Stipulation and Order,
Plaintiff and Defendant and Jerome A. Roth and Defendant shall each execute a
general release in the form annexed hereto as Exhibit A. The releases executed
by Defendant shall be delivered to Plaintiff's counsel and shall be held in
escrow by Plaintiff's counsel until Defendant has satisfied all of its
obligations hereunder. The releases executed by Plaintiff and Jerome A. Roth
shall be delivered to Defendant's counsel and shall be held in escrow by
Defendant's counsel until Defendant has satisfied all of its obligations
hereunder.
6. The above entitled action is discontinued with prejudice and without
costs to any party.
7. Any party to this Stipulation and Order may make application to the
Court in the event such party does not receive the financial or other benefits
due its pursuant to this Stipulation and order and the Court shall retain
jurisdiction for the purpose of enforcing this Stipulation and Order.
8. It is acknowledged and agreed that neither Plaintiff nor Defendant
admit any fault or liability with respect to, or in connection with, or in any
matters growing out of this Action or any matters alleged in the papers filed in
connection therewith.
9. This Stipulation and Order may be executed in facsimile counterparts
and when party has signed, dated and delivered at least one such facsimile
counterpart, each facsimile counterpart shall be deemed an original and all
facsimile counterparts taken together
-3-
<PAGE>
shall constitute one and the same Stipulation and Order, which shall be binding
and effective as to all parties.
Dated: New York, New York
December 30, 1997
/s/ PARKER CHAPIN FLATTAU /s/ HIGGINS & TRIPPETT
--------------------- ----------------------
PARKER CHAPIN FLATTAU HIGGINS & TRIPPETT LLP
KLIMPL, LLP Attorneys for Defendant
Attorneys for Plaintiff 330 Madison Avenue
1211 Avenue of the Americas New York, New York 10017
New York, New York 10036
Westcap Corporation Oak Tree Medical Systems, Inc.
By: /s/ JEROME A. ROTH By: /s/ FRED L. SINGER
-------------- --------------
Jerome A. Roth Fred L. Singer
SO ORDERED
- ---------------------
Ira Gammerman, J.S.C.
Dated: New York, New York
January__, 1998
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
February 25, 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 February 26, 1998, or as soon
thereafter as is reasonably practicable.
Very truly yours,
/s/ RICHARD P. GREENE, P.A.
-----------------------
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 the use in this Registration Statement on Form S-8 of our
report dated November 21, 1997, and December 31, 1997 as to Notes 13 and 14,
relating to the financial statements of Oak Tree Medical Systems, Inc. and
Subsidiaries, as of May 31, 1997.
/s/ Most Horowitz & Company, LLP
----------------------------
Most Horowitz & Company, LLP
New York, New York
February 26, 1998
