As filed with the Securities and Exchange Commission on June 4, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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, Hicksville, New York 11801
(Address of Principal Executive Offices) (Zip Code)
1991 INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
Mr. William Fellerman, Secretary
Star Multi Care Services, Inc.
99 Railroad Station
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 10036-8735
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
each class Amount offering aggregate Amount of
of securities to be price per offering registration
to be registered registered(1) share price fee
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Common Stock, par
value $.001 per
share 13,652 shares $ 3.1921 (2) $ 43,578.55 (2) $ 15.03
2,949 shares $ 4.1533 (2) $ 12,248.08 (2) $ 4.23
33,961 shares $ 7.00 (3) $237,727.00 (3) $ 81.98
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Total 50,562 shares $293,553.630 $ 101.24
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(1) The number of shares of Common Stock that were originally authorized for
issuance under the 1991 Incentive Stock Option Plan was 30,000. This
amount has been adjusted to reflect a three-for-two stock split in April
1994 and two 6% stock dividends in April 1995 and December 1995,
respectively. Pursuant to Rule 416(b), there shall also be
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deemed covered hereby all additional securities resulting from
anti-dilution adjustments under the 1991 Incentive Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(h), the exercise price of presently
outstanding options. Adjusted to reflect a three-for-two stock split in
April 1994 and two 6% stock dividends in April 1995 and December 1995,
respectively.
(3) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rule 457(c), the average of the high and low
sales prices per share of the registrant's Common Stock on the National
Association of Securities Dealers Automated Quotation System on May 31,
1996.
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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 (File No. 1-10751) pursuant to Section
13(a) of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-KSB for the fiscal
year ended May 31, 1995;
(b) The Company's Quarterly Reports on Form 10-QSB for the
fiscal quarters ended August 31, 1995, November 30, 1995 and February 29, 1995;
and
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed on April 15, 1991,
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.)
5.01 Opinion of Parker Chapin Flattau & Klimpl, LLP, counsel to the
registrant, as to the legality of the Common Stock being
offered.*
23.01 Consent of Holtz Rubenstein & Co., LLP.*
23.02 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in
Exhibit 5.01).
99.01 1991 Incentive Stock Option Plan.**
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* Filed herewith.
** Incorporated by reference to the Company's Registration Statement on Form
S-18 dated May 14, 1991. (Registration No. 33-39697-NY)
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:
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(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, Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed 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 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
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 the 31st day of
May, 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 Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Stephen Sternbach Chairman of the Board of May 31, 1996
- ------------------------- Directors, President and Chief
Stephen Sternbach Executive Officer
(Principal Executive Officer)
/s/ William Fellerman Chief Financial Officer, May 31, 1996
- ------------------------- Secretary, Treasurer, and
William Fellerman Director (Principal Financial
and Accounting Officer)
/s/ John P. Innes Director May 31, 1996
- ------------------------
John P. Innes, II
/s/ Matthew Solof Director May 31, 1996
- ------------------------
Matthew Solof
/s/ Charles Berdan Director May 31, 1996
- ------------------------
Charles Berdan
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Exhibit 5.01
PARKER CHAPIN FLATTAU & KLIMPL, LLP
COUNSELLORS AT LAW
1211 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-8735
(212) 704-6000
CABLE LAWPARK 175 GREAT NECK ROAD
FAX (212) 704-6288 GREAT NECK, NY 11021
TELEX 640347 (516) 482-4422
FAX (516) 482-4469
WRITER'S DIRECT DIAL NUMBER
May 28, 1996
Star Multi Care Services, Inc.
99 Railroad Station
Hicksville, New York 11801
Gentlemen:
We have acted as counsel to Star Multi Care Services, Inc. (the
"Registrant") in connection with its Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission relating to 50,562 shares of Common Stock, par value $.001 per share,
of the Registrant (the "Shares"), subject to the Registrant's 1991 Incentive
Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined, among other things,
the Plan, the Registration Statement and originals or copies, satisfactory to
us, of all such corporate records and of all such agreements, certificates and
other documents as we have deemed relevant and necessary as a basis for the
opinion hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the original documents of documents
submitted to us as copies. As to any facts material to such opinion, we have, to
the extent that relevant facts were not independently established by us, relied
on certificates of public officials and certificates, oaths and declarations of
officers or other representatives of the Registrant.
Based upon and subject to the foregoing, we are of the opinion that the
Shares to be issued pursuant to the exercise of options granted or to be granted
under the Plan will be, when issued pursuant to the provisions of the Plan,
validly issued, fully paid and non-assessable.
We hereby consent to the filing of a copy of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Parker Chapin Flattau & Klimpl, LLP
----------------------------------------
Parker Chapin Flattau & Klimpl, LLP
Exhibit 23.01
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
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We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 19, 1995 (except for Note 4, as
to which the date is August 16, 1995), appearing in Star Multi Care Services,
Inc.'s annual report on Form 10-KSB for the fiscal year ended May 31, 1995.
/s/ Holtz Rubenstein & Co., LLP
Holtz Rubenstein & Co., LLP
Melville, New York
June 3, 1996
