As filed with the Securities and Exchange Commission on October 2, 1996
REGISTRATION NO. 333-08499
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
ON
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
STAR MULTI CARE SERVICES, INC.
(Exact name of registrant as specified in its charter)
New York 11-1975534
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
99 Railroad Station Plaza, Hicksville, New York 11801
(Address of Principal Executive Offices) (Zip Code)
AMSERV, INC.
1991 Stock Option Plan
(Full title of the plan)
Mr. William Fellerman, Secretary
Star Multi Care Services, Inc.
99 Railroad Station Plaza
Hicksville, New York 11801
(Name and address of agent for service)
(516) 938-2016
(Telephone number, including area code, of agent for service)
with a copy to:
James Alterbaum, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS 1
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
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1. This information not required to be included in , and is not
incorporated by reference in this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 (the "1934 Act") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB (File No.
1-10751) for the fiscal year ended May 31, 1996, as amended on Form 10-KSB/A;
(b) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 0-21299) filed on
September 4, 1996, including any amendment or report filed for the purpose of
updating such descriptions.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 722 of the New York Business Corporation Law
("NYBCL") permits, in general, a New York corporation to indemnify any person
made, or threatened to be made, a party to an action or proceeding by reason of
the fact that he or she was a director or officer of the corporation, or served
another entity in any capacity at the request of the corporation, against any
judgment, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, if such person acted in good faith, for a
purpose he or she reasonably believed to be in, or, in the case of service for
another entity, not opposed to, the best interests of the corporation and, in
criminal actions or proceedings, in addition had no reasonable cause to believe
that his or her conduct was unlawful. Section 723 of the NYBCL permits the
corporation to pay in advance of a final disposition of such action or
proceeding the expenses incurred in defending such action or proceeding upon
receipt of an undertaking by or on behalf of the director or officer to repay
such amount as, and to the extent, required by statute. Section 721 of the NYBCL
provides that indemnification and advancement of expense provisions contained in
the NYBCL shall not be deemed exclusive of any rights to which a director or
officer seeking indemnification or advancement of expenses may be entitled,
whether contained in the certificate of incorporation or the by-laws of the
corporation or, when authorized by such certificate of incorporation or by-laws,
(i) a resolution of shareholders, (ii) a resolution of directors or (iii) an
agreement, provided no indemnification may be made on behalf of any director or
officer if a judgment or other final adjudication adverse to the director or
officer establishes that his or her acts were committed in bad faith or were the
result of active or deliberate dishonesty and were material to the cause of
action so adjudicated, or that he or she personally gained in fact a financial
profit or other advantage to which he or she was not legally entitled.
(b) The Company's Certificate of Incorporation provides in
Article Twelfth as follows:
TWELFTH: To the fullest extent now or hereafter provided for or
permitted by law, no director of the Company shall be personally
liable to the Company or its shareholders for damages for any breach
of duty in such capacity. Neither the amendment or repeal of this
Article Twelfth, nor the adoption of any provision of the Certificate
of Incorporation inconsistent with this Article Twelfth, shall
eliminate or reduce the protection by this Article Twelfth to a
director of the Company in respect to any matter which occurred, or
any cause of action, suit or claim which but for this Article Twelfth
would have accrued or arisen, prior to such amendment, repeal or
adoption.
(c) Article X of the Company's By-Laws provides, in general,
that the Company shall indemnify any officer or director (including officers and
directors serving another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity at the Company's
request) made, or threatened to be made, a party to an action or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he or she was serving in any
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of those capacities against judgments, fines, amounts paid in settlement and
reasonable expenses (including attorneys' fees) actually and necessarily
incurred in connection with the defense of or as a result of such action or
proceeding or in connection with any appeal thereof. Indemnification is not
available under Article X if a judgment or other final adjudication adverse to
such director or officer establishes that (i) his or her acts were committed in
bad faith or were the result of active and deliberate dishonesty and, in either
case, were material to the cause of action so adjudicated, or (ii) he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled.
(d) Pursuant to By-law Article X, the Company has entered into
indemnification agreements with certain of its directors and officers providing
for the indemnification of such directors and officers in derivative actions, as
well as with respect to third party actions. The NYBCL mandates indemnification
in derivative actions if the officer or director has been successful, on the
merits or otherwise, in the defense of the action. The indemnification
agreements, as well as Section 722 of the NYBCL, do not permit indemnification
in derivative actions for (a) proceedings which are settled or otherwise
disposed of or (b) claims to which a person has been adjudged to be liable,
unless court approved. However, in reliance on Section 721 of the NYBCL, which
provides that the statutory indemnification provisions are not exclusive of
other rights which may be provided to an officer or director seeking
indemnification, By-law Article X also extends the right of indemnification to
settlements and unsuccessful defenses of derivative actions without the
necessity of a court determination provided the person seeking indemnification
meets the standard described in the preceding paragraph. The Company is not
aware of any judicial determination as to whether indemnification provisions
such as those related to derivative actions in By-Law Article X (which, by their
terms, exceed the scope of NYBCL Section 722 but where the standard of conduct
set forth in NYBCL Section 721 has been met) are enforceable pursuant to such
nonexclusivity provision.
(e) By-law Article X, like the indemnification agreements,
provides that the expenses incurred in defending any action to which a director
or officer may be entitled to indemnification shall be advanced by the Company
prior to the final disposition of the action as long as the indemnitee
undertakes to repay such advances if required by law. The Company has been
advised that the NYBCL currently requires that an officer or director undertake
to repay such advances to the extent they exceed the amount to which the officer
or director ultimately is entitled. The period of time within which the Company
is to advance expenses is fifteen days after request; the time period within
which the Company is to provide indemnification after request is thirty days.
(f) By-law Article X, which by its terms is not the exclusive
basis for granting rights to indemnification or advancement of expenses,
establishes procedures for processing indemnification requests, confirms the
authority of the Company to maintain indemnification insurance and prohibits the
repeal of By-law Article X retroactively. By-law Article X also provides that it
applies, to the fullest extent permitted by law, to acts or omissions occurring
prior to its adoption. By-law Article X further stipulates that the rights
granted therein are contractual in nature, which is meant to prevent any
retroactive denial or reduction of indemnification if By-law Article X is later
amended.
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(g) Under By-law Article X, the Board of Directors is
permitted, to the fullest extent permitted by law, to establish an appropriate
scope of and procedure for the indemnification of, and advancement of expenses
to, employees and other persons to whom the Company is permitted to provide
indemnification or advancement of expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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4.01 Certificate of Incorporation filed April 25, 1961.*
4.02 Certificate of Amendment to Certificate of Incorporation filed
February 22, 1989.*
4.03 Certificate of Amendment to Certificate of Incorporation filed
December 4, 1990.*
4.04 Certificate of Amendment to Certificate of Incorporation filed
February 3, 1994. (Incorporated by reference to Exhibit 3 (d)
to the Company's Annual Report on Form 10-KSB for the fiscal
year ended May 31, 1994.)
4.05 Certificate of Change filed March 2, 1995. (Incorporated by
reference to Exhibit 3(e) to the Company's Annual Report on
Form 10-KSB for the fiscal year ended May 31, 1995.)
4.06 By-Laws, as amended on November 18, 1992 and September 13,
1993. (Incorporated by reference to Exhibit 3 (e) to the
Company's Annual Report on Form 10-KSB for the fiscal year
ended May 31, 1994.)
4.07 AMSERV, INC. 1991 Stock Option Plan. (Incorporated by
reference to Exhibit 4(b) to Post Effective Amendment No. 1 to
the Form S-8 Registration Statement (Registration No.
33-23703) of AMSERV, INC.)
5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP.**
23.01 Consent of Holtz Rubenstein & Co., LLP.***
23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in
Exhibit 5.01.)
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* Incorporated by reference to the Company's Registration Statement on
Form S-18 dated May 14, 1991. (Registration No. 33-39697-NY).
** Filed with original Form S-4 Registration Statement No. 333-08499.
*** Filed herewith.
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ITEM 9. UNDERTAKINGS.
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 the 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 the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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 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.
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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 provisions described under Item 6
above, 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
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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 the final adjudication of such
issue.
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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
Post-Effective Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Hicksville,
State of New York, on the 30th day of September, 1996.
STAR MULTI CARE SERVICES, INC.
By: /S/ STEPHEN STERNBACH
--------------------------
Stephen Sternbach
Chairman of the Board of Directors,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been signed below by
the following persons in the capacities and on the dates indicated.
Signature Title Date
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/S/ STEPHEN STERNBACH Chairman of the Board of September 30, 1996
- ----------------------------- Directors, President and
Stephen Sternbach Chief Executive Officer
(Principal Executive
Officer)
/S/ WILLIAM FELLERMAN Chief Financial Officer, September 30, 1996
- ----------------------------- Secretary, Treasurer, and
William Fellerman Director (Principal
Financial and Accounting
Officer)
JOHN P. INNES* Director September 30, 1996
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John P. Innes, II
MATTHEW SOLOF* Director September 30, 1996
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Matthew Solof
CHARLES BERDAN* Director September 30, 1996
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Charles Berdan
*By: /S/ STEPHEN STERNBACH
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Stephen Sternbach
Attorney-in-Fact
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Exhibit Index
Exhibit
Number Description
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4.01 Certificate of Incorporation filed April 25, 1961.*
4.02 Certificate of Amendment to Certificate of Incorporation filed
February 22, 1989.*
4.03 Certificate of Amendment to Certificate of Incorporation filed
December 4, 1990.*
4.04 Certificate of Amendment to Certificate of Incorporation filed
February 3, 1994. (Incorporated by reference to Exhibit 3 (d)
to the Company's Annual Report on Form 10-KSB for the fiscal
year ended May 31, 1994.)
4.05 Certificate of Change filed March 2, 1995. (Incorporated by
reference to Exhibit 3(e) to the Company's Annual Report on
Form 10-KSB for the fiscal year ended May 31, 1995.)
4.06 By-Laws, as amended on November 18, 1992 and September 13,
1993. (Incorporated by reference to Exhibit 3 (e) to the
Company's Annual Report on Form 10-KSB for the fiscal year
ended May 31, 1994.)
4.07 AMSERV, INC. 1991 Stock Option Plan. (Incorporated by
reference to Exhibit 4(b) to Post Effective Amendment No. 1 to
the Form S-8 Registration Statement (Registration No.
33-23703) of AMSERV, INC.)
5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP.**
23.01 Consent of Holtz Rubenstein & Co., LLP.***
23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in
Exhibit 5.01.)
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* Incorporated by reference to the Company's Registration Statement on
Form S-18 dated May 14, 1991. (Registration No. 33-39697-NY).
** Filed with original Form S-4 Registration Statement No. 333-08499.
*** Filed herewith.
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Post Effective
Amendment No. 1 to Form S-4 on Form S-8 of our report dated July 19, 1996
appearing in Star Multi Care Services, Inc.'s annual report on Form 10-KSB for
the fiscal year ended May 31, 1996.
/s/ Holtz Rubenstein & Co., LLP
HOLTZ RUBENSTEIN & CO., LLP
October 1, 1996
