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As filed with the Securities and Exchange Commission on April 3, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRANSWORLD HEALTHCARE, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 13-3098275
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
555 MADISON AVENUE, NEW YORK, NEW YORK 10022
(Address of Principal Executive Offices) (Zip Code)
TRANSWORLD HEALTHCARE, INC. 401(K) PROFIT SHARING PLAN
(Full title of the plan)
WAYNE A. PALLADINO
TRANSWORLD HEALTHCARE, INC.
555 MADISON AVENUE
NEW YORK, NEW YORK 10022
(Name and address of agent for service)
(212) 750-0064
(Telephone number, including area code, of agent for service)
COPIES TO: LESLIE J. LEVINSON, ESQ.
BAER MARKS & UPHAM LLP
805 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 702-5700
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CALCULATION OF REGISTRATION FEE
===================================================================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Shares, par value
$.01, per share(1) 40,000 $ 6.0625 (2) $ 242,500 (2) $ 73.48
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Interests in the Transworld
HealthCare, Inc. 401(k)
Profit Sharing Plan (3) (4) (4) (4)
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(1) There are hereby registered 40,000 shares of Common Shares of Transworld
HealthCare, Inc. which may be acquired pursuant to the Transworld
HealthCare, Inc. 401(k) Profit Sharing Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) based on the average of the high and low sales
prices per share of the Company's Common Shares as reported by Nasdaq
National Market (Registered Trademark) on April 1, 1998.
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(3) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(4) Not applicable.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Pursuant to Rule 428(b)(l) under the Securities Act of 1933, as
amended, the documents containing the information specified in Part I of Form
S-8 will be sent or given to each participant in the Transworld HealthCare,
Inc. 401(k) Profit Sharing Plan (the "Plan"). These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II hereof, taken together, constitute the Section 10(a) Prospectus.
I-1
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, Transworld HealthCare, Inc., a
New York corporation (the "Company" or the "Registrant") or the Plan pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this Registration Statement.
(a) The Company's Transitional Report on Form 10-K for the eleven
months ended September 30, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1997, as filed with the Commission on or about February 13,
1998; and
(c) The description of the Common Shares contained in the Company's
Registration Statement on Form 8-A filed on November 25, 1992 under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant or the Plan subsequent to the
date of this Registration Statement pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, 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. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(i) Article 7 of the Business Corporation Law of the State of New
York, in general, allows corporations to indemnify their officers and directors
against any judgment, fine, settlement and reasonable expenses incurred in any
non-derivative civil or criminal action, or against any settlement and
reasonable expenses in any derivative civil action, if the officer or director
acted in good faith and for a purpose he reasonably believed to be in, or not
opposed to, the best interests of the corporation. In the case of a criminal
action, the officer or director must have had no reasonable cause to believe
that his conduct was unlawful. Partial indemnification is allowed in cases
where the officer or director was partially successful in defeating the claim.
Such Article establishes procedures for determining whether the standard of
conduct has been met in the particular case, for timely notification to
shareholders, for prepayment of expenses and for payment pursuant to a court
order or as authorized by disinterested directors or the shareholders. Article
7 also provides that it is not exclusive of any other rights to which an
officer or director may be entitled under the certificate of incorporation or
by-laws or pursuant to an agreement, resolution of shareholders or resolution
of directors which are authorized by the certificate of incorporation or
by-laws; provided that no indemnification may be made if a judgment or other
final adjudication adverse to the officer or director establishes that his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
(ii) Article 8 of the Company's Restated Certificate of Incorporation
and Article 8 of the Company's By-Laws provide generally for indemnification of
all officers and directors to the fullest extent permitted under the
above-referenced New York statute.
(iii) The Company also has a policy insuring it and its directors and
officers against certain liabilities and has entered into indemnification
agreements with each of its officers and directors.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description of Exhibit
- -------------- ----------------------
5.1* Undertaking re: Submission of Plan
23.1* Consent of Coopers & Lybrand L.L.P., independent
accountants of the Company.
24* Power of Attorney (included on page II-6 of this
Registration Statement).
- ---------------------
*Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a)(l) 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,
represents 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)(l)(i) and (a)(l)(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 by the Registrant pursuant to Section 13 or Section
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
II-3
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relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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 or controlling
persons of the Registrant pursuant to any arrangement, provision or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that 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
Securities Act of 1933 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 3rd day
of April 1998.
TRANSWORLD HEALTHCARE, INC.
By: /s/TIMOTHY M. AITKEN
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Timothy M. Aitken
Chairman of the Board, President and Chief Executive
Officer (Principal Executive Officer)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Wayne A. Palladino as his true and
lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite or necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, 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.
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Signature Title Date
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<S> <C> <C>
/s/TIMOTHY M. AITKEN Chairman of the Board, President April 3, 1998
- ------------------------ and Chief Executive Officer
Timothy M. Aitken (PrincipalExecutive Officer)
/s/WAYNE A. PALLADINO Senior Vice President and Chief April 3, 1998
- ------------------------ Financial Officers (Principal
Wayne A. Palladino Financial and Accounting Officer)
/s/LEWIS S. RANIERI Director April 3, 1998
- -----------------------
Lewis S. Ranieri
/s/SCOTT A. SHAY Director April 3, 1998
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Scott A. Shay
/s/MICHAEL G. SCOREY Director April 3, 1998
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Michael G. Scorey
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II-6
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Pursuant to the requirements of the Securities Act of 1933, the
trustees have 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 April 3, 1998.
TRANSWORLD HEALTHCARE, INC. 401(k)
PROFIT SHARING PLAN
By: /s/ WAYNE A. PALLADINO
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Wayne A. Palladino, Trustee
By: /s/ GREGORY E. MARSELLA
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Gregory E. Marsella, Trustee
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INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
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<CAPTION>
EXHIBIT NUMBER DESCRIPTION PAGE NUMBER
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<S> <C> <C>
5.1 Undertaking re: Submission of Plan.
23.1 Consent of Coopers & Lybrand L.L.P., independent
accountants of the Company.
24 Power of Attorney (included on page II-6 of this
Registration Statement)
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Undertaking re: Submission of Plan
The registrant hereby undertakes that it will submit or has submitted
the Transworld HealthCare, Inc. 401(k) Profit Sharing Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and has made
or will make all changes required by the IRS in order to qualify the plan.
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Transworld HealthCare, Inc. on Form S-8 of our report dated November 24, 1997,
on our audits of the consolidated financial statements and the financial
statements schedule of Transworld HealthCare, Inc. as of September 30, 1997 and
October 31, 1996 and for the eleven months ended September 30, 1997 and for
each of the two years in the period ended October 31, 1996, which report is
included in Transworld HealthCare, Inc.'s Transition Report on Form 10-K for
the eleven months ended September 30, 1997 which is incorporated by reference
in this Form S-8.
Coopers & Lybrand L.L.P.
New York, New York
April 2, 1998
