As filed with the Securities and Exchange Commission on June 30, 1999
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.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 02-0401674
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
2797 Ocean Parkway, Brooklyn, New York 11235
(Address of Registrant's principal executive offices and zip code)
Registrant's telephone number, including area code: (718) 769-6042
Henry Dubbin Stock Option Agreement and
Richards Healthcare, Inc. Agreement
(Full title of the plan)
Henry Dubbin, President
Oak Tree Medical Systems, Inc.
2797 Ocean Parkway, Brooklyn, New York 11235
(718) 769-6042
(Address, including zip code, and telephone number of agent for service)
Copy to:
Richard P. Greene, P.A.
2455 E. Sunrise Boulevard, Suite 905
Ft. Lauderdale, Florida 33304
(954) 564-6616
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
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>
DUBBIN
Common Stock,
$.01 par value 250,000(1) $2.00(2) $500,000 $139.00
RICHARDS HEALTHCARE
Common Stock,
$.01 par value 10,000(3) $4.00 $40,000 11.12
TOTAL $150.12(4)
- ------------------------------------------------------------------------------------------------------------------
<FN>
(1) Represents shares underlying the options issuable under certain
conditions to Henry Dubbin
(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) Represents shares issuable under certain conditions to Richards
Healthcare, Inc.
(4) 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 February 28, 1999;
(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 approximately 5,770,038 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 Stock Option Agreement between the Registrant and Henry
Dubbin, dated October 2, 1998
10.2 Agreement between the Registrant and Richards Healthcare,
Inc., dated March 15, 1999
23.1 Consent of Richard P. Greene, P.A.
23.2 Consent of Most Horowitz & Company, LLP, CPA
<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 14th day of June, 1999.
OAK TREE MEDICAL SYSTEMS, INC.
By: /s/ HENRY DUBBIN
------------------------------
Henry Dubbin, President
By: /s/ FRED SINGER
------------------------------
Fred Singer, Vice President
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
5.1 Opinion of Richard P. Greene, P.A.
10.1 Stock Option Agreement between the Registrant
and Henry Dubbin, dated October 2, 1998
10.2 Agreement between the Registrant and Richards
Healthcare, Inc., dated March 15, 1999
23.1 Consent of Richard P. Greene, P.A.
23.2 Consent of Most Horowitz & Company, LLP, CPA
EXHIBIT 5.1
LAW OFFICES
RICHARD P. GREENE, P.A.
INTERNATIONAL BUILDING
2455 EAST SUNRISE BOULEVARD
SUITE 905
FORT LAUDERDALE, FLORIDA 33304
------
TELEPHONE: (954) 562-6616
FAX: (954) 561-0997
June 29, 1999
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 260,000 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 260,000 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
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
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT, dated as of October 2, 1998 and effective
as of the 14th day of June, 1998 (the "Agreement"), amending that certain Stock
Option Agreement, dated as of the 15th day of June, 1993 by and between Oak Tree
Medical Systems, Inc., a Delaware corporation (the "Company"), and HENRY DUBBIN
(the "Optionee").
WHEREAS, Optionee was granted options to purchase shares of the Company
pursuant to that certain Employment Agreement dated as of the 15th day of June
1993 (the "Employment Agreement") and the terms of such grant was hereto
previously amended by a Board resolution;
WHEREAS, the Company amended, effective as of the date hereof, the
Employment Agreement, to extend the duration of the employment relationship with
the Company until June 14, 2002 and extend the duration of the option to
purchase common stock of the Company pursuant to the terms and conditions set
forth herein;
WHEREAS, the parties desire to document the terms of the options in
this Stock Option Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties intending to be legally
bound hereby agree as follows:
1. GRANT OF OPTIONS.
1.1 The Company hereby grants to the Optionee options (the "Options")
to purchase 250,000 shares of common stock, par value $0.01 per share, of the
Company ("Common Stock") at an exercise price (the "Exercise Price") of $2.00
per share. The number and kind of shares issuable upon exercise of the Options
and the Exercise Price shall be adjusted upon the occurrence of the events and
in the manner provided in Article 3 of this Agreement.
1.2 The Options are vested and immediately exercisable.
1.3 To the extent not theretofore exercised, the Options shall
terminate and expire at 5:00 p.m., New York time, December 31, 2002.
1.4 The Company shall promptly file with the Securities and Exchange
Commission a registration statement on Form S-8 registering the shares of Common
Stock issuable upon the exercise of the Options by the Optionee and shall keep
such registration statement effective for as long as any of the Options are
outstanding.
2. METHOD OF EXERCISE.
The Options or any part thereof may be exercised only by the giving of
written notice to the Company on such form and in such manner as the Board shall
prescribe. Such written notice of exercise shall be accompanied by payment of
the full purchase price of the number of shares being purchased. Such payment
may be made by cash, certified check or check acceptable to the Company. The
date of exercise (the "Exercise Date") of the Options shall be the date on which
written notice of exercise is received by the Company, during normal business
hours, at its address as provided in Article 5 of this Agreement. On the
Exercise Date, the Optionee shall be deemed to be the holder of record of the
shares of Common Stock issuable upon such exercise, notwithstanding that the
transfer books of the Company shall then be closed or certificates representing
such shares shall not then have been actually delivered to
<PAGE>
the Optionee. As soon as practicable after the Exercise Date, the Company shall
issue and deliver to the Optionee a certificate or certificates for the number
of shares issuable upon such exercise, registered in the name of the Optionee.
3. ADJUSTMENT OF SHARES.
(a) If at any time while unexercised Options are outstanding, there
shall be any increase or decrease in the number of issued and outstanding Shares
through the declaration of a stock dividend or through any recapitalization
resulting in a stock split-up, combination or exchange of Shares, then and in
such event:
(i) appropriate adjustment shall be made in the maximum number
of Shares available for grant under the Plan, or available for grant to any
person under the Plan, so that the same percentage of the Company's issued and
outstanding Shares shall continue to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the number of
Shares and the exercise price per Share thereof then subject to any outstanding
Option, so that the same percentage of the Company's issued and outstanding
Shares shall remain subject to purchase at the same aggregate exercise price.
(b) Unless otherwise provided in any Option, the Committee or the Board
may change the terms of Options outstanding under this Agreement, with respect
to the option price or the number of Shares subject to the Options, or both,
when, in the Committee's or Board's sole discretion, such adjustments become
appropriate so as to preserve but not increase benefits under this Agreement.
(c) In the event of a proposed sale of all or substantially all of the
Company's assets or any reorganization, merger, consolidation or other form of
corporate transaction in which the Company does not survive, where the
securities of the successor corporation, or its parent company, are issued to
the Company's shareholders, then the successor corporation or a parent of the
successor corporation may, with the consent of the Committee or the Board,
assume each outstanding Option or substitute an equivalent option or right. If
the successor corporation, or its parent, does not cause such an assumption or
substitution to occur, or the Committee or the Board does not consent to such an
assumption or substitution, then each Option shall terminate upon the
consummation of sale, merger, consolidation or other corporate transaction.
(d) Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with a direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made to, the number of or exercise price for Shares then subject to
outstanding Options granted under this Agreement.
(e) Without limiting the generality of the foregoing, the existence of
outstanding Options granted under this Agreement shall not affect in any manner
the right or power of the Company to make, authorize or consummate (I) any or
all adjust ments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
2
<PAGE>
4. NOTICES.
Any and all notices or other communications required or permitted to be
given under any of the provisions of this Agreement shall be in writing and
shall be deemed to have been duly given and received when delivered personally
or three (3) days after mailing, if mailed by registered or certified mail,
return receipt requested; as to the Optionee, at the address set forth beneath
his signature hereof, or at such other address as the Optionee may hereafter
designate to the Company by notice as provided herein, and as to the Company,
addressed to the Chief Executive Officer of the Company at Oak Tree Medical
Systems, Inc., 163-03 Horace Harding Expressway, Flushing, New York 11365 or at
such other address as the Company may hereafter designate to the Optionee by
notice as herein provided.
5. MISCELLANEOUS.
5.1 AUTHORITY. This Agreement has been duly authorized on behalf of the
Company by the Board. The Optionee represents that he is free to enter into this
Agreement and that his entering into this Agreement does not violate any
obligation that he has to any other person or legal entity.
5.2 SEVERABILITY. In the event that any provision of this Agreement
would be held to be invalid or unenforceable for any reason unless narrowed by
construction, this Agreement shall be construed as if such invalid or
unenforceable provision had been more narrowly drawn so as not to be invalid or
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall attach only to such provision and shall not
affect or render invalid or unenforceable any other provision of this Agreement.
5.3 ENTIRE AGREEMENT. This Agreement set forth the entire understanding
of the Company and the Optionee with respect to the subject matter hereof and
cannot be amended or modified except by a writing signed by both parties.
5.4 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and assigns, heirs and personal
representatives.
5.5 GOVERNING LAW. This Agreement shall be interpreted, construed and
administered in accordance with the laws of the State of Florida without regard
to choice of law provisions.
5.6 ARBITRATION. With respect to any suit, action or proceeding
initiated by a party to this Agreement arising out of, under or in connection
with this Agreement, the parties hereto each hereby submits to the exclusive,
final and binding arbitration of the American Arbitration Association of New
York, New York or Miami, Florida in accordance with their Commercial Arbitration
Rules. Whether such arbitration shall be maintained in New York or Florida shall
be the choice of the party instituting the arbitration proceeding. Judgment upon
the award rendered by the arbitrator may be entered in any court of record of
competent jurisdiction in any country, or application may be made to such court
for a judicial acceptance of the award and an order of enforcement, as the law
of such jurisdiction may require or allow. In the event the Optionee is
successful in pursuing any claim arising out of this Agreement, the Company
shall pay all of the Optionee's attorneys' fees and costs, including the
compensation and expense of the Arbitrator. In all other cases, the expenses of
arbitration will be borne among the parties as determined by the arbitrator.
5.7 COUNTERPARTS. This Agreement may be executed in counterparts which,
taken together, shall constitute a single original document.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written above.
OAK TREE MEDICAL SYSTEMS, INC.
By: /s/ SIMON BOLTUCH
------------------------------------
Simon Boltuch, Chief Financial Officer
OPTIONEE:
/s/ HENRY DUBBIN
---------------------------------------
HENRY DUBBIN
4
EXHIBIT 10.2
OAK TREE
MEDICAL SYSTEMS, INC.
- --------------------------------------------------------------------------------
P.O. Box 313, Woodmere, NY 11598
Tel: (718) 769-6042
Fax: (718) 769-6447
AGREEMENT
Agreement made this 15th day of March, 1999 by and between Rick Richards,
individually ("Richards"), Richards Healthcare, Inc., at 950 Echo Lane, Suite
355 Houston, TX 77024 ("Healthcare") and Oak Tree Medical Systems, Inc., at 2797
Ocean Parkway Brooklyn, NY 11235 ("Oak Tree"), such parties collectively
referred to as the "Parties":
WHEREAS, a conflict has arisen among the parties regarding one or more accounts
and debts which Richards and Healthcare are claiming Oak Tree currently owes
them; and
WHEREAS, the Parties have been unable to resolve their differences; and
WHEREAS, the parties are desirous of settling their dispute without resorting to
litigation or seeking other relief; and
NOW THEREFORE, the Parties agree to the following as terms and conditions of
such settlement:
1. Oak Tree will immediately issue to Richards or Healthcare, as
appropriately instructed in writing, Ten Thousand (10,000) shares of
Oak Tree unrestricted common stock, which is listed on the NASDAQ
exchange under the symbol "MOAK" (the "stock"); and
2. Richards and Healthcare will simultaneously execute, upon receiving the
stock, a General Release in such form as is suitable for filing with
the appropriate county Clerk of Courts, as to all sums due and owing
from or claims which may be asserted against Oak Tree by Richards or
Healthcare; and
3. Oak Tree agrees to meet and maintain all registration, listing and
other requirements necessary to enable recipient to freely sell the
stock, consistent with paragraphs 4 and 5.
4. The recipient of the Stock agrees not to sell or transfer to another
party, more than Five Hundred (500) shares of the Stock in any one day;
and
5. The recipient of the Stock agrees not to sell or transfer to another
party, more than Two Thousand Five Hundred (2500) shares of the Stock
in any calendar week (Monday through Friday); and
6. The parties may mutually extend or modify this Agreement in writing only.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals as of
the date first written above.
/s/ RICK RICHARDS /s/ S. BOLTUCH
- ----------------- ------------------------------------
Rick Richards Oak Tree Medical Systems, Inc., by
Name: Simon Boltuch
Title: CFO
/s/ RICK RICHARDS
- -----------------
Richards Healthcare, Inc., by
Name: Rick Richards
Title: President
EXHIBIT 23.1
LAW OFFICES
RICHARD P. GREENE, P.A.
INTERNATIONAL BUILDING
2455 EAST SUNRISE BOULEVARD
SUITE 905
FORT LAUDERDALE, FLORIDA 33304
------
TELEPHONE: (954) 562-6616
FAX: (954) 561-0997
June 29, 1999
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 June 30, 1999, 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
June 30, 1999, 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
June 30, 1999
