-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, O1UAiPyrgzAEO3pck+ua4pAP07L+CZVP+NNJ16Aszlb/3o+Fqlb2COTCepO0ZwBV bMAyJDZFl0CQOY4EGKuTVg== 0000950123-98-009224.txt : 19981027 0000950123-98-009224.hdr.sgml : 19981027 ACCESSION NUMBER: 0000950123-98-009224 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19981026 EFFECTIVENESS DATE: 19981026 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: STAFF BUILDERS INC /DE/ CENTRAL INDEX KEY: 0000720480 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HOME HEALTH CARE SERVICES [8082] IRS NUMBER: 112650500 STATE OF INCORPORATION: DE FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-66121 FILM NUMBER: 98730656 BUSINESS ADDRESS: STREET 1: 1983 MARCUS AVE STREET 2: STE C115 CITY: LAKE SUCCESS STATE: NY ZIP: 11042 BUSINESS PHONE: 5163581000 MAIL ADDRESS: STREET 1: 425 NORTH AVE EAST STREET 2: STE C115 CITY: WESTFIELD STATE: NJ ZIP: 07090 FORMER COMPANY: FORMER CONFORMED NAME: TENDER LOVING CARE HEALTH CARE SERVICES INC DATE OF NAME CHANGE: 19880404 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on October 26, 1998 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Staff Builders, Inc. (Exact name of Registrant as specified in its charter) Delaware 11-2650500 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1983 Marcus Avenue, Lake Success, New York 11042 (Address of Principal Executive Offices) (Zip Code) Staff Builders, Inc. 1998 Stock Option Plan (Full title of the plan) Stephen Savitsky Chairman of the Board, President and Chief Executive Officer Staff Builders, Inc. 1983 Marcus Avenue Lake Success, New York 11042 (Name and address of agent for service) (516) 358-1000 (Telephone number, including area code, of agent for service) Copy to: Floyd I. Wittlin, Esq. Richards & O'Neil, LLP 885 Third Avenue New York, New York 10022-4873 (212) 207-1200 2 CALCULATION OF REGISTRATION FEE
Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Offering Registra- Registered Registered(1) Per Share(2) Price(2) tion Fee Class A Common Stock, 2,000,000(3) shares $0.55 $1,100,000 $305.80 par value $.01 per share
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "SECURITIES ACT"), this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Staff Builders, Inc. 1998 Stock Option Plan (the "PLAN"). (2) The proposed maximum aggregate offering price, estimated solely for the purpose of calculating the registration fee, has been computed pursuant to Rule 457(h) promulgated under the Securities Act and is based on the average of the high and low prices of Staff Builders, Inc.'s Class A Common Stock, par value $.01 per share (the "COMMON STOCK"), on October 19, 1998, as quoted on the NASDAQ Stock Market's National Market. (3) Represents shares issuable under the Plan. 2 3 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The document or documents containing the information specified in Part I are not required to be filed by Staff Builders, Inc. (the "COMPANY") with the Securities and Exchange Commission (the "COMMISSION") as part of this Form S-8 Registration Statement (the "REGISTRATION STATEMENT") pursuant to Rule 424 under the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents have been previously filed by the Company with the Commission and are incorporated in this Registration Statement by reference: a. The Company's annual report on Form 10-K, as amended, for the fiscal year ended February 28, 1998. b. The Company's quarterly reports on Form 10-Q for the quarters ended May 31, 1998 and August 31, 1998. c. The Company's current report on Form 8-K dated October 22, 1998. d. The description of the Company's Class A Common Stock contained in its Registration Statement on Form 8-A, as amended by Amendment No. 1 to the Registration Statement on Form 8-A of the Company, which was declared effective on October 26, 1995. All documents subsequently filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "EXCHANGE ACT") after the date of this Registration Statement and prior to such time as the Company files a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold, or which deregisters all such 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 filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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. 3 4 Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers The Restated Certificate of Incorporation of the Company, as amended, provides that (i) the Company shall, to the fullest extent permitted by Section 145 of the Delaware General Corporation Law ("SECTION 145"), indemnify all persons whom it may indemnify pursuant thereto and (ii) the personal liability of the directors of the Company is eliminated to the fullest extent permitted by Section 102(b)(7) of the Delaware General Corporation Law ("SECTION 102(b)(7)"). The Company has entered into separate indemnification agreements with certain of its officers to the same effect. Section 145 permits the Company to indemnify any person who was or is a party or is threatened to be made party to a threatened, pending or completed administrative, investigative, civil or criminal action, suit or proceeding (other than an action by or in the right of the registrant in question) by reason of the fact that he is or was a director, officer, employee or agent of the registrant, or is or was serving at the request of the registrant as a director, officer, employee or agent of another company, partnership, joint venture, trust or "OTHER ENTERPRISE", against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement he actually and reasonably incurred in connection with such an action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of such registrant (and, in the case of a criminal action or proceeding, had no reason to believe his conduct was unlawful). In the case of an action by or in the right of the Company, he may not be indemnified in respect of any claim, issue or matter as to which he was adjudged liable to the Company unless and only to the extent that the court determines that he is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper. Payment may be made in advance of the final disposition of any civil, criminal, administrative or investigative action, suit or proceeding if the officer or director agrees to repay to the Company such amount in the event it is determined that he was not entitled to it. Indemnification against expenses (including attorneys' fees) actually and reasonably incurred must be given under Section 145 to the extent an officer, director, employee or agent is successful in an action described above. In addition, Section 145 permits the Company to purchase and maintain insurance on behalf of any officer, director, employee and agent of the Company or any person serving at the request of the Company as an officer, director, employee or agent of 4 5 another corporation serving as described above whether or not the Company would have the power to indemnify him under Section 145. The Company maintains directors and officers liability insurance for all duly elected or appointed officers and director so the Company. Section 102(b)(7) permits the Company to eliminate or limit the personal liability of a director to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company, pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits The following exhibits are filed (except where otherwise indicated) as part of this Registration Statement: Exhibit No. Description - ----------- ----------- 4.1 Staff Builders, Inc. 1998 Stock Option Plan (incorporated by reference to Exhibit C to the Company's Proxy Statement, dated August 27, 1998, filed with the Commission on August 27, 1998. 5.1 Opinion of Richards & O'Neil, LLP. 23.1 Consent of Deloitte & Touche, LLP to the incorporation by reference in this Registration Statement of their report on the financial statements included in the Company's annual report on Form 10-K for the fiscal year ended February 28, 1998. 23.2 Consent of Richards & O'Neil, LLP (included in the opinion filed as Exhibit 5.1). 5 6 Item 9. Undertakings (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregated, the changes in volume and price represent no more than 20 percent in the maximum aggregate offering price set forth in the "CALCULATION OF REGISTRATION FEE" table in the effective 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) of this item do not apply if 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 Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, 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. 6 7 (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, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. 7 8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Village of Lake Success, State of New York, on this 26th day of October, 1998. STAFF BUILDERS, INC. By: /s/ Stephen Savitsky Stephen Savitsky Chairman of the Board, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date - --------- ----- ---- /s/ Stephen Savitsky Chairman of the Board, October 26, Stephen Savitsky President and Chief Executive 1998 Officer (Principal Executive Officer) and Director /s/ David Savitsky Executive Vice President, October 26, David Savitsky Chief Operating Officer, 1998 Secretary, Treasurer and Director /s/ Dale R. Clift Executive Vice President, October 26, Dale R. Clift Finance and Chief Financial 1998 Officer (Principal Financial Officer) /s/ Willard T. Derr Sr. Vice President -- Controller October 26, Willard T. Derr (Principal Accounting Officer) 1998 8 9 Signature Title Date - --------- ----- ---- /s/ Bernard J. Firestone Director October 26, Bernard J. Firestone, Ph.D. 1998 /s/ Jonathan J. Halpert Director October 26, Jonathan J. Halpert Ph.D. 1998 /s/ Donald Meyers Director October 26, Donald Meyers 1998 9 10 EXHIBIT INDEX Exhibit No. Description - ----------- ----------- 4.1 Staff Builders, Inc. 1998 Stock Option Plan (incorporated by reference to Exhibit C to the Company's Proxy Statement, dated August 27, 1998, filed with the Commission on August 27, 1998). 5.1 Opinion of Richards & O'Neil, LLP. 23.1 Consent of Deloitte & Touche, LLP to the incorporation by reference in this Registration Statement of their report on the financial statements included in the Company's annual report on Form 10-K for the fiscal year ended February 28, 1998. 23.2 Consent of Richards & O'Neil, LLP (included in the opinion filed as Exhibit 5.1). 10 EX-5.1 2 OPINION RE LEGALITY 1 EXHIBIT 5.1 FORM OF RICHARDS & O'NEIL, LLP S-8 OPINION October 23, 1998 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Re: Staff Builders, Inc. Dear Sir or Madam: We have acted as counsel to Staff Builders, Inc., a Delaware corporation (the "COMPANY"), in connection with the proposed issuance of up to an aggregate of 2,000,000 shares (the "SHARES") of the Company's Class A Common Stock, par value $.01 per share ("COMMON STOCK"), pursuant to the Company's 1998 Stock Option Plan (the "PLAN"). As such counsel, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purpose of rendering this opinion. In rendering the opinion below, we have assumed that (a) upon exercise of the options granted under the Plan (the "OPTIONS"), the Company will have a sufficient number of authorized shares of Common Stock reserved for the issuance of the Shares; and (b) prior to the dates of exercise of the Options, no change occurs in the applicable law or the pertinent facts. Our opinions expressed below are limited to the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. Based on the foregoing, we are of the opinion that the Shares have been duly authorized and reserved for issuance by the Company upon exercise of the Options and, when issued and sold against payment therefor in accordance with the terms of the Plan and the agreements executed thereunder, will be validly issued, fully-paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement on Form S-8 being filed herewith by the Company with the Securities and 2 Exchange Commission. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, and the Rules and Regulations promulgated thereunder. Very truly yours, /s/ Richards & O'Neil, LLP EX-23.1 3 CONSENT OF DELOITTE AND TOUCHE LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement of Staff Builders, Inc. (the "COMPANY") on Form S-8 of our report dated April 20, 1998, included in the Company's annual report on Form 10-K for the fiscal year ended February 28, 1998. /s/ Deloitte & Touche, LLP Jericho, New York October 23, 1998 -----END PRIVACY-ENHANCED MESSAGE-----