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)
STAR MULTI CARE SERVICES, INC.
1997 NON-EMPLOYEE DIRECTOR 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 11801
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
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE PER OFFERING REGISTRATION
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TO BE REGISTERED REGISTERED(1) SHARE PRICE FEE
Common Stock, par 100,000 shares $5.75 (2) $575,000 (2) $174.24
value $.001 per
share
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(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under the
1997 Non-Employee Director Stock Option Plan.
(2) 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 December
17, 1997.
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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. 0-21299) 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-K for the fiscal year
ended May 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended August 31, 1997; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A 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.
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
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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 the 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 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.
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(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.
(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.
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ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
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 1997 Non-Employee Director Stock Option Plan effective as of March
26, 1997.*
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).* 24.01 Powers of Attorney of certain officers and directors
of the registrant (included in signature page).*
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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:
(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;
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(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 Hicksville, State of New York, on the 18th day of
December, 1997.
STAR MULTI CARE SERVICES, INC.
By: /S/ STEPHEN STERNBACH
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Stephen Sternbach
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Stephen Sternbach and William Fellerman his true and
lawful attorneys-in-fact and agents, for him and in his name, place and stead,
in any and all capacities, with full power to act alone, to sign any and all
amendments to this Registration Statement, and to file each such amendment to
this Registration Statement with all exhibits thereto, and any and all documents
in connection therewith, with the Securities and Exchange Commission, hereby
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform any and all acts and things required and
necessary to be done, as fully and to all intents and purposes as, he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, 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.
SIGNATURE TITLE DATE
/s/ Stephen Sternbach Director, President and Chief December 18, 1997
- ------------------------ Executive Officer
Stephen Sternbach
/s/ William Fellerman Director, Secretary, December 18, 1997
- ------------------------ Treasurer, and Chief
William Fellerman Financial Officer
/s/ John P. Innes II Director December 18, 1997
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John P. Innes II
/s/ Matthew Solof Director December 18, 1997
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Matthew Solof
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/s/ Charles Berdan Director December 18, 1997
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Charles Berdan
/S/ Melvin L. Katten Director December 18, 1997
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Melvin L. Katten
/s/ Gary L. Weinberger Director December 18, 1997
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Gary L. Weinberger
/s/ Ivan Kaufman Director December 18, 1997
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Ivan Kaufman
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EXHIBIT 4.07
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
OF
STAR MULTI CARE SERVICES, INC.
1. PURPOSE OF THE PLAN. This stock option plan (the "Plan")
is designed to provide an incentive to directors of STAR MULTI CARE SERVICES,
INC. (the "Company"), who are not common law employees of the Company or any
subsidiary of the Company ("Non-Employee Directors"), and thus to attract and
retain the services of experienced and knowledgeable Non-Employee Directors for
the benefit of the Company and its shareholders, and to provide additional
incentive for such Non-Employee Directors to continue to work for and in the
best interests of the Company and its shareholders.
2. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Paragraph 11, the aggregate number of shares of Common Stock, par value $.001
per share, of the Company ("Common Stock") for which options may be granted
under the Plan shall not exceed 100,000. Such shares of Common Stock may, in the
discretion of the Board of Directors of the Company (the "Board of Directors"),
consist either in whole or in part of authorized but unissued shares of Common
Stock or shares of Common Stock held in the treasury of the Company. Subject to
the provisions of Paragraph 12, any shares of Common Stock subject to an option
which for any reason expires, is cancelled or is terminated unexercised or which
ceases for any reason to be exercisable shall again become available for the
granting of options under the Plan. The Company shall at all times during the
term of the Plan reserve and keep available such number of shares of Common
Stock as will be sufficient to satisfy the requirements of the Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be
administered by the Board of Directors or a committee of the Board of Directors
(the "Committee") consisting of not less than three directors, each of whom
shall be a "non-employee director" within the meaning of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended (as the same may be in
effect and interpreted from time to time, "Rule 16b-3"). Unless otherwise
provided in the By-Laws of the Company or by resolution of the Board of
Directors, a majority of the members of the Committee shall constitute a quorum,
and the acts of a majority of the members present at any meeting at which a
quorum is present, and any acts approved in writing by all members without a
meeting, shall be the acts of the Committee.
Subject to the express provisions of the Plan, the Committee shall
have the authority to determine: (a) those Non-Employee Directors who shall
receive options; (b) the times when they shall receive options; (c) the number
of shares of Common Stock subject to each option; (d) the term of each option;
(e) the date that each option shall become exercisable; (f) whether an option
shall be exercisable in whole or in installments, and, if in installments (i)
the number of shares of Common Stock subject to each installment, (ii) whether
the installments shall be cumulative, (iii)
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the date each installment shall become exercisable and (iv) the term of each
installment and whether to accelerate the date of exercise of any option or
installment; (g) whether shares of Common Stock may be issued upon the exercise
of an option as partly paid, and, if so, the dates when future installments of
the exercise price shall become due and the amounts of such installments; (h)
the exercise price of each option; (i) the form of payment of the exercise
price; (j) whether to restrict the sale or other disposition of the shares of
Common Stock acquired upon the exercise of an option and, if so, whether and
under what conditions to waive any such restriction; (k) whether and under what
conditions to subject the exercise of all or any portion of an option to the
fulfillment of certain restrictions or contingencies as specified in the option
contract referred to in Paragraph 7 (the "Option Contract"), including without
limitation, financial objectives for the Company, and to determine whether such
restrictions or contingencies have been met; (l) the amount, if any, necessary
to satisfy the obligation of the Company to withhold taxes or other amounts; (m)
with the consent of the optionee, to cancel or modify an option; (n) to construe
the Plan and the respective Option Contracts; (o) to prescribe, amend and
rescind rules and regulations relating to the Plan; (p) to approve any provision
of the Plan or any option granted under the Plan or any amendment to either
which, under Rule 16b-3, requires the approval of the Board of Directors, a
committee of non-employee directors or the shareholders to be exempt (unless
otherwise specifically provided herein); and (q) to make all other
determinations necessary or advisable for administering the Plan. Any
controversy or claim arising out of or relating to the Plan, any option granted
under the Plan or any Option Contract shall be determined unilaterally by the
Committee. The determinations of the Committee on the matters referred to in
this Paragraph 3 shall be conclusive and binding on the parties.
No member or former member of the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
option granted hereunder. In addition, each member and former member of the
Committee shall be indemnified and held harmless by the Company from and against
any liability, claim for damages and expenses in connection therewith by reason
of any action or failure to act under or in connection with the Plan, any option
granted hereunder or any Option Contract to the fullest extent permitted with
respect to directors under the Company's certificate of incorporation, By-Laws
and applicable law.
4. ELIGIBILITY. The Committee may, consistent with the
purposes of the Plan, grant options from time to time to such Non-Employee
Directors as the Committee may determine. Options granted pursuant to the Plan
shall cover such number of shares of Common Stock as the Committee may
determine.
5. EXERCISE PRICE. The exercise price per share at which
shares of Common Stock may be purchased pursuant to options granted under the
Plan shall be determined by the Committee. The fair market value of a share of
Common Stock on any date shall be (a) if the principal market for the Common
Stock is a national securities exchange, the average of the highest and lowest
sales prices of a share of Common Stock on such day as reported by such exchange
or on a consolidated tape reflecting transactions on such exchange, (b) if the
principal market for the Common Stock is not a national securities exchange and
the Common Stock is quoted on the Nasdaq Stock Market ("Nasdaq"), and (i) if
actual sales price information is available with respect to the Common Stock,
the average of the highest and lowest sales prices of a share of Common Stock on
such day on Nasdaq, or (ii) if such information is not available, the average of
the highest bid and the
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lowest asked prices for a share of Common Stock on such day on Nasdaq or (c) if
the principal market for the Common Stock is not a national securities exchange
and the Common Stock is not quoted on Nasdaq, the average of the highest bid and
lowest asked prices for a share of Common Stock on such day as reported on the
Nasdaq OTC Bulletin Board Service, or by National Quotation Bureau, Incorporated
or a comparable service; provided that if clauses (a), (b) and (c) of this
Paragraph 5 are all inapplicable, or if no trades have been made or no quotes
are available for such day, the fair market value of a share of Common Stock
shall be determined by the Committee by any method consistent with applicable
regulations adopted by the Treasury Department relating to stock options.
6. TERM. Each option granted under the Plan shall be for
such term as is determined by the Committee, subject to earlier termination as
provided herein.
7. OPTION CONTRACTS. Each option shall be evidenced by an
appropriate option contract (the "Option Contract"), which shall be executed by
the Company and the optionee, and shall contain such terms and conditions not
inconsistent herewith as may be determined by the Committee. The terms of each
option and Option Contract need not be identical.
8. EXERCISE. An option (or any installment thereof), to the
extent then exercisable, shall be exercised by giving written notice to the
Company at its principal office, stating which option is being exercised,
specifying the number of shares of Common Stock as to which such option is being
exercised and accompanied by payment in full of the aggregate exercise price
therefor (or the amount due on exercise if the Option Contract permits
installment payments) (a) in cash and/or a certified check, (b) with the
authorization of the Committee, with cash, a certified check and/or previously
acquired shares of Common Stock, having an aggregate fair market value on the
date of exercise (determined in accordance with Paragraph 5), on the date of
exercise, equal to the aggregate exercise price of all options being exercised;
provided, however, that in no case may shares be tendered if such tender would
require the Company to incur a charge against its earnings for financial
accounting purposes.
An optionee shall not have the rights of a shareholder with respect
to the shares of Common Stock to be received upon the exercise of an option
until the date of issuance of a stock certificate to him for such shares or, in
the case of uncertified shares, until the date an entry is made on the books of
the Company's transfer agent representing such shares; provided, however, that
until such stock certificate is issued or until such book entry is made, any
optionee using previously acquired shares of Common Stock in payment of an
option exercise price shall continue to have the rights of a shareholder with
respect to such previously acquired shares.
In no case may a fraction of a share of Common Stock be purchased or
issued under the Plan.
9. TERMINATION OF DIRECTORSHIP. Except as may otherwise be
expressly provided in the applicable Option Contract, an optionee who ceases to
be a director for any reason may exercise such option, to the extent exercisable
on the date of such termination, at any time within three months after the date
of termination, but not thereafter and in no event after the date the
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option would otherwise have expired; provided, however, that if such optionee's
directorship is terminated for cause, such option shall terminate immediately.
10. COMPLIANCE WITH SECURITIES LAWS. It is a condition to
the exercise of any option that either (a) a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
shares of Common Stock to be issued upon such exercise shall be effective and
current at the time of exercise, or (b) there is an exemption from registration
under the Securities Act for the issuance of shares of Common Stock upon such
exercise. Nothing herein shall be construed as requiring the Company to register
shares subject to any option under the Securities Act.
The Committee may require the optionee to execute and deliver to the
Company representations and warranties, in form, substance and scope
satisfactory to the Committee, which the Committee determines is necessary or
convenient to facilitate the perfection of an exemption from the registration
requirements of the Securities Act, applicable state securities laws or other
legal requirements, including without limitation, that (a) the shares of Common
Stock to be issued upon the exercise of the option are being acquired by the
optionee for the optionee's own account, for investment only and not with a view
to the resale or distribution thereof, and (b) any subsequent resale or
distribution of shares of Common Stock by such optionee will be made only
pursuant to (i) a Registration Statement under the Securities Act which is
effective and current with respect to the shares of Common Stock being sold or
(ii) a specific exemption from the registration requirements of the Securities
Act, but in claiming such exemption, the optionee, prior to any offer of sale or
sale of such shares of Common Stock, shall provide the Company with a favorable
written opinion of counsel, satisfactory to the Company, in form, substance and
scope satisfactory to the Company, as to the applicability of such exemption to
the proposed sale or distribution.
In addition, if at any time the Committee shall determine that the
listing or qualification of the shares of Common Stock subject to such option on
any securities exchange, Nasdaq, or under any applicable law, or that the
consent or approval of any governmental agency or regulatory body, is necessary
or desirable as a condition to, or in connection with, the granting of an option
or the issuance of shares of Common Stock thereunder, such option may not be
granted or exercised in whole or in part, as the case may be, unless such
listing, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Committee.
11. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
Notwithstanding any other provisions of the Plan, in the event of any change in
the outstanding Common Stock by reason of a stock dividend, recapitalization,
merger in which the Company is the surviving corporation, spinoff, split-up,
combination or exchange of shares or the like, which results in a change in the
number or kind of shares of Common Stock which is outstanding immediately prior
to such event, the aggregate number and kind of shares subject to the Plan, the
aggregate number and kind of shares subject to each outstanding option and the
exercise price thereof shall be appropriately adjusted by the Board of
Directors, whose determination shall be conclusive and binding on all parties
thereto. Such adjustment may provide for the elimination of fractional shares
that might otherwise be subject to options without payment therefor.
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In the event of (a) the liquidation or dissolution of the Company,
(b) a merger in which the Company is not the surviving corporation or a
consolidation, or (c) a transaction (or series of related transactions) in which
(i) more than 50% of the outstanding Common Stock of the Company is transferred
or exchanged for other consideration or (ii) shares of Common Stock in excess of
the number of shares of Common Stock outstanding immediately preceding the
transaction are issued (other than to shareholders of the Company with respect
to their stock in the Company), any outstanding options shall terminate upon the
earliest such event, unless other provision is made therefor in the transaction.
12. TERMINATION AND AMENDMENT OF THE PLAN. The Plan will
terminate on March 25, 2007, unless sooner terminated by the Board of Directors.
The rights of optionees under options outstanding at the time of the termination
of the Plan shall not be affected solely by reason of the termination and shall
continue in accordance with the terms of the option (as then in effect or
thereafter amended). The Board of Directors, without further approval of the
Company's shareholders, may at any time suspend or terminate the Plan, in whole
or in part, or amend it from time to time in such respects as it may determine,
including, without limitation, to comply with the provisions of Rule 16b-3, and
to conform to any change in applicable law or to any regulation, ruling, or
interpretation of any governmental agency or regulatory body; provided, however,
that no amendment shall be effective without the requisite prior or subsequent
shareholder approval which would (a) except as contemplated in Paragraph 11,
increase the maximum number of shares of Common Stock for which options may be
granted under the Plan, (b) change the eligibility requirements for individuals
entitled to receive options hereunder or (c) make any change for which
applicable law or any governmental agency or regulatory body requires
shareholder approval. No termination, suspension or amendment of the Plan shall
adversely affect any optionee's rights under any option granted under the Plan,
without the optionee's consent. The power of the Committee to construe and
administer any options granted under the Plan prior to the termination or
suspension of the Plan nevertheless shall continue after such termination or
during such suspension.
13. NONTRANSFERABILITY OF OPTIONS. No option granted under
the Plan may be assigned or transferred except by will or by the applicable laws
of descent and distribution; and each such option may be exercised during the
optionee's lifetime only by the optionee or his legal representative. Except to
the extent provided above, options may not be assigned, transferred, pledged,
hypothecated or disposed of in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process
and any attempted assignment, transfer, pledge, hypothecation or disposition
shall be null and void AB INITIO and of no force or effect.
14. NO RIGHTS CONFERRED. Nothing in the Plan or in any
option granted under the Plan shall confer on any optionee any right to continue
as a director of the Company, or interfere in any way with any right to
terminate the optionee's directorship at any time for any reason whatsoever
without liability to the Company.
15. WITHHOLDING TAXES. The Company may withhold cash and,
with the authorization of the Committee, shares of Common Stock to be issued
with respect to the exercise of an option, having an aggregate fair market value
equal (determined in accordance with Paragraph 5) to the amount, if any, which
it determines is necessary to satisfy its obligation to withhold Federal, state
and local income taxes or other taxes incurred by reason of the grant, vesting,
exercise or
<PAGE>
disposition of an option, its disposition, or the disposition of the underlying
shares of Common Stock. Alternatively, the Company may require the optionee to
pay to the Company such amount, in cash, promptly upon demand. The Company shall
not be required to issue any shares of Common Stock pursuant to any such option
until all required payments have been made.
16. LEGENDS; PAYMENT OF EXPENSES. The Company may endorse
such legend or legends upon the certificates for shares of Common Stock issued
upon exercise of an option under the Plan and may issue such "stop transfer"
instructions to its transfer agent in respect of such shares as it determines,
in its discretion, to be necessary or appropriate to (a) prevent a violation of,
or to perfect an exemption from, the registration requirements of the Securities
Act, applicable state securities laws or other legal requirements or (b)
implement the provisions of the Plan or any agreement between the Company and
the optionee with respect to such shares of Common Stock.
The Company shall pay all issuance taxes with respect to the
issuance of shares of Common Stock upon the exercise of an option granted under
the Plan, as well as all fees and expenses incurred by the Company in connection
with such issuance.
17. USE OF PROCEEDS. The cash proceeds from the sale of
shares of Common Stock pursuant to the exercise of options under the Plan shall
be added to the general funds of the Company and used for its general corporate
purposes as the Board of Directors may determine.
18. GOVERNING LAW. The Plan and each option agreement shall
be governed by the laws of the State of New York, without regard to conflict of
law provisions which would defer to the substantive laws of another
jurisdiction. Neither the Plan nor any Contract shall be construed or
interpreted with any presumption against the Company by reason of the Company
causing the Plan or Contract to be drafted. Whenever from the context it appears
appropriate, any term stated in either the singular or plural shall include the
singular and plural, and any term stated in the masculine, feminine or neuter
gender shall include the masculine, feminine and neuter.
19. PARTIAL INVALIDITY. The invalidity, illegality or
unenforceability of any provision in the Plan, any option or Option Contract
shall not affect the validity, illegality or enforceability of any other
provision, all of which shall be valid, legal and enforceable to the fullest
extent permitted by applicable law.
20. EFFECTIVE DATE. The Plan shall be effective as of March
26, 1997, the date on which it was adopted by the Board of Directors, subject to
approval by a majority of all outstanding shares entitled to vote thereon, in
person or by proxy, at the next duly held meeting of the Company's shareholders
at which a quorum is present. No option granted hereunder may be exercise prior
to such approval. Notwithstanding the foregoing, if the Plan is not approved by
shareholders on or before March 25, 1998, the Plan and the options granted
hereunder shall terminate.
EXHIBIT 5.01
PARKER CHAPIN FLATTAU & KLIMPL, LLP
LETTERHEAD
December 18, 1997
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 100,000 shares of Common Stock, par value $.001 per
share, of the Registrant (the "Shares"), subject to the Registrant's 1997
Non-Employee Director Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined, among other
things, 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 and paid for 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
We hereby consent to the incorporation by reference into the Registration
Statement on Form S-8 of our report dated July 18, 1997 with respect to the
consolidated financial statements of Star Multi Care Services, Inc. included in
the Annual Report on Form 10-K for the year ended May 31, 1997.
/s/ Holtz Rubenstein & Co., LLP
HOLTZ RUBENSTEIN & CO., LLP
Melville, New York
December 18, 1997
