<PAGE> 1
As Filed with the Securities and Exchange Commission on August 13, 1998
Registration No. 333-
===============================================================================
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 Principal Executive Offices)
Irwin Bosh Stack Stock Option Agreement
-------------------------------------------------------------------------------
(Full title of the Plan)
-------------------
Henry Dubbin
President
Oak Tree Medical Systems, Inc.
163-03 Horace Harding Expressway
Flushing, New York 11365
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(Name and address of agent for service)
(718) 460-8400
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(Telephone number, including area code, of agent for service)
Copy to:
Rebecca R. Orand, Esq.
Greenberg, Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0557
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Proposed maximum Proposed
Title of securities Amount to be offering price maximum aggregate Amount of
to be registered registered per share (1) offering price(1) registration fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value................... 60,000 shares $2.55 $153,000 $45.00
==================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
and computed in accordance with Rule 457(h) of the Securities Act of
1933, as amended, on the basis of the average of the high and low sale
price of the Common Stock on August 12, 1998.
Page 1 of 4 Pages
Exhibit Index at Page II-5
================================================================================
<PAGE> 2
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed and to be filed with the Securities and
Exchange Commission (the "Commission") by the Registrant are hereby incorporated
by reference in this Registration Statement:
(a) the Registrant's Annual Report on Form 10-KSB, as amended, for the
fiscal year ended May 31, 1997;
(b) the Registrant's quarterly report on Form 10-Q (i) for the
quarterly period ended August 31, 1997, (ii) for the quarterly period ended
November 30, 1997, (iii) for the quarterly period ended February 28, 1998;
(c) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the document referred to in
(a) above;
(d) the Registrant's Proxy Statement dated February 25, 1998, relating
to the 1998 Annual Meeting of Stockholders; and
(e) the Registrant's Registration Statement on Form 8-A, filed pursuant
to Section 12(g) of the Securities Exchange Act, which contains a description of
the Common Stock, including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
Any statements contained in this Registration Statement, or 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 statement contained herein or in any other subsequently filed
document which 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's fiduciary 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)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions), or
(iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's Certificate of Incorporation contains provisions
permitted by Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceedings, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify directors and/or officers in an
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<PAGE> 3
action or suit by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
director or officer is adjudged to be liable to the corporation. Where a
director or officer is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him or her against
the expenses which such director or officer actually and reasonably incurred.
The Registrant's Certificate of Incorporation and By-laws provide for
the indemnification of directors and officers of the Registrant to the fullest
extent permitted by the DGCL.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See "Exhibit Index" on page II-6.
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 of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
this Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in this 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 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; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i)
and (a)(1)(ii) shall 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 Securities Exchange Act of 1934
that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(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 Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(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 Securities Act of 1933 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
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<PAGE> 4
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on August 13, 1998.
OAK TREE MEDICAL SYSTEMS, INC.
By: /s/ Henry Dubbin
-------------------------------
Name: Henry Dubbin
Title: President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Henry Dubbin his true and lawful
attorney-in-fact, acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto, and other documents to be filed in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact or his substitute, acting alone, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Henry Dubbin President and Director August 13, 1998
- ------------------------------------ (Principal Executive, Financial and
Henry Dubbin Accounting Officer)
/s/ Fred Singer
- ------------------------------------ Director August 13, 1998
Fred Singer
</TABLE>
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<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page No
------- ----------- ----------
<S> <C> <C>
3.1 Registrant's Amended and Restated Certificate of
Incorporation (1)
3.2 Amendments to Registrant's Certificate of Incorporation (2)
3.3 Bylaws of the Registrant (3)
4.1 Irwin Bosh Stack Amended Consulting Agreement, as
amended
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Independent Auditors.
23.2 Consent of Greenberg Traurig, P.A. (contained in its opinion
filed as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures section of
this Registration Statement
</TABLE>
- ----------------------
(1) Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-18 (Dated August 20, 1986,
Registration No. 33-8166B).
(2) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Annual Report on Form 10-KSB dated May 31, 1995.
(3) Incorporated by reference to Exhibit 3.3 filed with the Registrant's
Registration Statement on Form S-18 (Dated August 20, 1986,
Registration No. 33-8166B).
II-5
<PAGE> 1
EXHIBIT 4.1
AMENDED
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT dated as of the 15th day of July, 1998, is
entered into by and between Irwin Bosh Stack, a Florida resident ("Stack"), and
Oak Tree Medical Systems, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Oak Tree and Stack are parties to a Stipulation and Agreement
of Compromise, Settlement and Release filed with the Court of Chancery of the
State of Delaware on May 22, 1998 (the "Settlement Agreement"), pursuant to
which Stack will serve as an consultant to the Company and be granted options
(the "Options") to purchase 60,000 shares of common stock of the Company (the
"Option Shares"), as more fully described herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. APPOINTMENT OF CONSULTANT. The Company engages Stack ("Consultant")
and Consultant hereby agrees to render services to the Company as a management
consultant at the request of the Company as set forth below.
(a) During the term of this Agreement, Consultant shall, at
the request of management, provide advice relating to general corporate and
business matters in connection with the operation of the business of the
Company. Utilization of the Consultant's services pursuant to this Agreement
shall be at the sole discretion of the Company.
(b) As consideration for its consulting services hereunder,
the Company agrees to compensate Consultant as described in Section 2.
(c) The term shall be that period commencing on the date
hereof and ending either December 31, 1998 or the date of change of control of
management, whichever occurs earlier.
<PAGE> 2
(d) Consultant and the Company hereby acknowledge that
Consultant is an independent contractor. Consultant shall not hold himself out
as, nor shall he take any action from which others might infer, that he is a
partner of, agent of or a joint venturer of the Company. Consultant shall have
no authority to bind the Company to any third party. Similarly, the Company
shall not in written or oral communications indicate that the Consultant is a
part of the Company or working in any capacity other than consultant or that he
has any other duties or responsibilities other than as consultant as outlined in
1(a).
(e) Consultant's services under this Section 1 shall terminate
upon the occurrence of any of the following events: (i) the death of Stack; or
(ii) the disability of Stack, which, for purposes hereof shall mean Consultant's
inability, due to the physical or mental impairment of Stack, to perform the
consulting services required hereunder for a period of thirty (30) consecutive
days during any consecutive ninety (90) day period. Notwithstanding the
preceding the total compensation shall be deemed earned in full after thirty
days from the date of this Agreement and shall inure to the benefit of Stack's
heirs if Stack predeceases the termination date of this Agreement.
2. COMPENSATION TO CONSULTANT. As consideration for Consultant's
consulting services, the Company shall issue to Consultant the Options.
(a) The Options will (i) vest immediately, and (ii) will
expire two years from the date the registration statement becomes effective
(whether or not this Agreement is terminated prior to the expiration of such two
year period). The exercise price for each Option Share will be $1.49 per share.
(b) Promptly following the execution of this Agreement, but
in no event later than thirty (30) days following the date hereof, the Company
shall prepare and file a registration statement on Form S-8 (or successor or
other applicable form) under the Securities Act of 1933, as amended (the "Act").
(c) Stack acknowledges that the sale of the Option Shares
are subject to the volume limitations and exceptions thereto set forth in the
Settlement Agreement, and that any transferee of the Option or Option Shares
(unless pursuant to a sale by a broker in the open market) shall be bound by
such volume limitations.
(d) The obligation for payment of the consideration and all
parts of sections 2(a), (b), and (c) listed above are to be deemed irrevocable.
3. CONFIDENTIALITY. Stack will not disclose to any other person, firm
or corporation, nor use for its own benefit, during or after the term of this
Agreement, any trade secrets or other information designated as confidential by
the Company which is or has been acquired by Stack in the course of its
performing services to the Company. (A trade secret is information not generally
known to the trade which gives the Company an advantage over its competitors.
Trade secrets can include, by way of example, products or services under
development, production methods and processes, sources of supply, customer
lists, marketing plans and information concerning the filing or pendency of
patent applications). Any management advice rendered by Stack pursuant to this
Agreement may not be disclosed publicly in any manner without the prior written
approval of the Company. The provisions of this Section 3 shall survive the
termination and expiration of this Agreement.
4. ASSIGNMENT. Because of the personal nature of the services to be
rendered, without the prior written consent of the Company, the Consultant may
not assign, transfer or covey any of his rights or duties under this Agreement,
nor shall he delegate any of the obligations or duties required to be kept or
performed by it under this Agreement.
2
<PAGE> 3
5. SEVERABILITY. In the event that any term, provision or condition
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of this Agreement shall remain in full
force and effect and shall not be affected, impaired or invalidated thereby.
6. MISCELLANEOUS. This Agreement sets forth the entire understanding
of the parties relating to the subject matter hereof, and supersedes and cancels
any prior communications, understandings and agreements between the parties.
This Agreement cannot be modified or changed, nor can any of its provisions be
waived, except by written agreement signed by all parties. This Agreement shall
be governed by the laws of the State of Florida. In the event of any dispute as
to the terms of this Agreement, the prevailing party in any litigation shall be
entitled to reasonable attorneys' fees.
IN WITNESS WHEREOF, the undersigned have executed this Consulting
Agreement as of the day and year first above written.
OAK TREE MEDICAL SYSTEMS, INC.
By: /s/ Henry Dubbin
-----------------------------
Name: Henry Dubbin
Title: President
/s/ Irwin Bosh Stack
---------------------------------
Irwin Bosh Stack
3
<PAGE> 1
EXHIBIT 5.1
August 13, 1998
Oak Tree Medical Systems, Inc.
163-03 Horace Harding Expressway
Flushing, New York 11365
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
On the date hereof, Oak Tree Medical Systems, Inc., a Delaware
corporation (the "Company"), sent for filing with the Securities and Exchange
Commission a Registration Statement on Form S-8 (the "Registration Statement"),
under the Securities Act of 1933, as amended (the "Act"). The Registration
Statement relates to the issuance from time to time by the Company of up to
60,000 shares of the Company's Common Stock, par value $.01 per share (the
"Shares"), upon the exercise of stock options ("Options") granted to Irwin Bosh
Stack pursuant to that certain Amended Consulting Agreement, dated July 15, 1998
(the "Agreement"). We have acted as special counsel to the Company in connection
with the preparation and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Amended and Restated
Articles of Incorporation and Bylaws of the Company; (ii) records of corporate
proceedings of the Company, authorizing the Agreement , any amendments thereto,
and the preparation of the Registration Statement and related matters; (iii) the
Registration Statement and exhibits thereto; and (iv) such other documents and
instruments as we have deemed necessary for the expression of the opinions
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Shares issuable upon exercise of the Options have been duly authorized by the
Company, and when issued upon exercise of and in accordance with the terms of
the Options as set forth in the Agreement will be duly and validly issued and
will be fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
GREENBERG TRAURIG, P.A.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form
S-8, dated August 13, 1998, of our report dated November 21, 1997, and December
31, 1997 as to Notes 13 and 14, relating to the consolidated financial
statements of Oak Tree Medical Systems, Inc. and Subsidiaries, as of May 31,
1997.
MOST, HOROWITZ & COMPANY, LLP
New York, New York
August 13, 1998
