As filed with the Securities and Exchange Commission on December 15, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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HEALTHCARE SERVICES GROUP, INC.
Pennsylvania 23-2018365
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3220 Tillman Drive
Glenview Corporate Center, Suite 300 19020
Bensalem, Pennsylvania (Zip Code)
(Address of principal executive offices)
Employee Stock Purchase Plan
Deferred Compensation plan
Retirement (401-K) Savings Plan
(Full Title of the Plan)
Daniel P. McCartney
Chairman and Chief Executive Officer
Healthcare Services Group, Inc.
3220 Tillman Drive,
Glenview Corporate Center, Suite 300
Bensalem, Pennsylvania 19020
(Name and Address of agent for service)
(215) 639-4274
(Telephone number, including area code, of agent for service)
With a copy to:
Victor M. Rosenzweig, Esq.
Olshan Grundman Frome Rosenzweig & Wolosky LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
Approximate date of proposed sales pursuant to the plan:
From time to time after the effective date of this registration statement.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per share price fee
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Common Stock
$.01 par value
(1)(2) 1,100,000 $3.375 $3,712,500 $1,032.75
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Deferred -- 100% $4,000,000(4) $1,112.00
Compensation
Obligations (3)
===========================================================================================================
(1) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of the operation of the
anti-dilution or certain other provisions of the Employee Stock Purchase Plan
(the "Stock Purchase Plan"), the Deferred Compensation Plan and the Retirement
(401-K) Savings Plan ("401-k Plan", and together with the Stock Purchase Plan
and the Deferred Compensation Plan, the "Three Company Plans") of Healthcare
Services Group, Inc. (the "Company").
(2) Pursuant to Rule 457(g) and (h), the offering price for the shares which may
be issued under the Three Company Plans is estimated solely for the purpose of
determining the registration fee and is based on the average of the high and low
prices of the Company's Common Stock ($3.375) as reported by the Nasdaq National
Market on December 9, 1999.
(3) The Deferred Compensation Obligations being registered are general unsecured
obligations of the Company to pay deferred compensation in the future to
participating members of a select group of management or other key employees in
accordance with the terms of the Deferred Compensation Plan.
(4) Estimated solely for purposes of determining the registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 (Plan information and Registrant information) will be sent or given to
employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424 of the
Securities Act. These documents, which include the statement of availability
required by Item 2 of Form S-8, and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Form S-8 (part II hereof),
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference and made a
part hereof:
(a) Healthcare Services Group, Inc.'s consolidated
(including its subsidiaries) (the "Company") Annual Report on
Form 10-K for the fiscal year ended December 31, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1999, June 30, 1999 and September 30,
1999; and
(c) The description of the Company's securities contained in
the Company's Registration Statement on Form 8-A filed April 30,
1984.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13, 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents.
Item 4. Description of Securities underlying the Deferred
Compensation Plan.
The Company's Deferred Compensation Plan was adopted by the Board
of Directors of the Company on July 20, 1999 to provide additional retirement
benefits to a select group of management or certain other key employees of the
Company who have devoted extraordinary service to the Company (the "Key
Employees") and to ensure the retention of their services. Each calendar year,
every Key Employee who wishes to participate in the Deferred Compensation Plan
(each a "Key Employee Participant", collectively "Key Employee Participants")
may irrevocably elect to defer the receipt of up to 15% of his or her Earnings
for any calendar year during the term of his employment with the Company. For
purposes of this Item 4, Earnings refer to a Key Employee's total W-2
compensation earned with respect to services rendered to or on behalf of the
Company, exclusive of income attributable to the exercise of stock options and
the receipt of automobile allowances.
A Trust for the purpose of receiving contributions from the
Company and retaining such contributions (and the proceeds thereon from
investments, including the proceeds of any life insurance policies owned by the
trust, if any) as a source of funds to assist the Company in meeting its
obligations to provide the benefits of the Plan shall be set-up with PNC Bank,
N.A. as Trustee, pursuant to a Trust Agreement. The Company shall contribute and
allocate to each Key Employee Participant's account, as of the last day of each
calendar year, the number of full shares of Common Stock of the Company obtained
by dividing (a) an amount equal to twenty-five (25%) percent of the amount of
compensation deferred by the Key Employee Participant for such calendar year, as
embodied in the Salary Deferral Election form completed by the Key Employee
Participant at the beginning of each calendar year, by (b) the Market Price of
the Company's Common Stock on the last date of the calendar year. For purposes
of this Item 4, Market Price shall mean the Closing price of the Company's
Common Stock on the last day of the calendar year or if there was no trading of
the Company's Common Stock on such date, the Closing price on the nearest prior
business date on which trading occurred on a recognized securities exchange. To
be
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eligible to receive an allocation of Common Stock, a Key Employee Participant
must be employed by the Company on the last date of the calendar year for which
the allocation is to be made.
The obligations of the Company under the Deferred Compensation
Plan (the "Deferred Compensation Obligations") will be general unsecured
obligations of the Company to pay deferred compensation from its general assets
in the future to Key Employee Participants. The Deferred Compensation
Obligations will be denominated and payable in United States dollars and will
rank pari passu with other unsecured and unsubordinated indebtedness of the
Company which from time to time will be outstanding.
No payment under the Deferred Compensation Plan shall be subject
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, voluntary or involuntary. Any attempt to dispose of any rights to
benefits payable under the Deferred Compensation Plan shall be void.
The Deferred Compensation Obligations are not subject to
redemption, in whole or in part, prior to the individual payment dates selected
by the Key Employee Participants, except the Key Employee Participants may
withdraw all or a portion of the value of their Plan accounts under certain
specified circumstances. The Company reserves the right to amend or terminate
the Plan at anytime.
The total amount of the Deferred Compensation Obligation is not
determinable because the amount will vary depending upon the level of
participation by Key Employees and the amounts of their Earnings. The duration
of the Deferred Compensation Plan is indefinite and is subject to the Company's
termination. The Deferred Compensation Obligations are not convertible into
another security of the Company. The Deferred Compensation Obligations will not
have the benefit of a negative pledge or any other affirmative or negative
covenant on the part of the Company. Each Key Employee Participant will be
responsible for acting independently with respect to, among other things, the
giving of notices, responding to any requests for consents, waivers or
amendments pertaining to the Deferred Compensation Obligations, enforcing
covenants and taking action upon a default by the Company.
Item 5. Interest of Named Experts and Counsel
Not Applicable.
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Item 6. Indemnification of Officers and Directors
Sections 1741 through 1750 of Subchapter C of Chapter 17 of the
Pennsylvania Business Corporation Law (the "BCL") contain, among other things,
provisions for mandatory and discretionary indemnification of a corporation's
directors, officers and other personnel.
Under Section 1741, unless otherwise limited by its by-laws, a
corporation has the power to indemnify directors and officers under certain
prescribed circumstances against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with a threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative, to which any of them
is a party or threatened to be made a party by reason of his being a
representative, director or officer of the corporation or serving at the request
of the corporation as a representative of another corporation, partnership,
joint venture, trust or other enterprise, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action or
proceeding by judgment, order, settlement or conviction or upon a plea of nolo
contendere or its equivalent does not of itself create a presumption that the
person did not act in good faith and in a manner that he reasonably believed to
be in, or not opposed to, the best interests of the corporation and, with
respect to any criminal proceeding, had reasonable cause to believe that his
conduct was unlawful.
Section 1742 provides for indemnification with respect to
derivative actions similar to that provided by Section 1741. However,
indemnification is not provided under Section 1742 with respect to any claim,
issue or matter as to which a director or officer has been adjudged to be liable
to the corporation unless and only to the extent that the proper court
determines upon application that, despite the adjudication of liability but in
view of all of the circumstances of the case, a director or officer is fairly
and reasonably entitled to indemnity for the expenses that the court deems
proper.
Section 1743 provides that indemnification against expenses is
mandatory to the extent that the director or officer has been successful on the
merits or otherwise in defense of any such action or proceeding referred to in
Section 1741 or 1742.
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Section 1744 provides that unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation as
authorized in the specific case upon a determination that indemnification of
directors and officers is proper because the director or officer met the
applicable standard of conduct, and such determination will be made by the board
of directors by a majority vote of a quorum of directors not parties to the
action or proceeding; if a quorum is not obtainable or if obtainable and a
majority of disinterested directors so directs, by independent legal counsel; or
by the shareholders.
Section 1745 provides that expenses incurred by a director or
officer in defending any action or proceeding referred to in the Subchapter may
be paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation.
Section 1746 provides generally that except in any case where the
act or failure to act giving rise to the claim for indemnification is determined
by a court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by the Subchapter shall not
be deemed exclusive of any other rights to which a director or officer seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding that office.
Section 1747 also grants a corporation the power to purchase and
maintain insurance on behalf of any director or officer against any liability
incurred by him in his capacity as officer or director, whether or not the
corporation would have the power to indemnify him against the liability under
this Subchapter of the BCL.
Sections 1748 and 1749 apply the indemnification and advancement
of expenses provisions contained in the Subchapter to successor corporations
resulting from consolidation, merger or division and to service as a
representative of a corporation or an employee benefit plan.
The foregoing provisions substantially overlap the provisions of
the Pennsylvania Directors' Liability Act, 42 Pa. C.S. ss. 8365, which are also
applicable to the Company.
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Article XI of the Company's By-laws provides, in part, that the
Company shall indemnify its directors, officers, employees and agents to the
fullest extent permitted by the BCL.
Article XII of the Company's By-laws provides, in part, that:
"A Director shall not be liable for monetary damages as such
for any action taken, or any failure to take action, unless (1):
the director has breached or failed to perform the duties of his
office under Section 8363 of the Pennsylvania Consolidated
Statutes and the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness; provided,
however, that the foregoing provision shall not relieve a
director of responsibility or liability of a director pursuant to
any criminal statute or for the payment of taxes pursuant to
local, state or Federal law."
The Company has purchased director and officer liability
insurance for its directors and officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4(a) - Form of Employee Stock Purchase Plan
4(b) - Form of Deferred Compensation Plan
5 - Opinion of Olshan Grundman Frome Rosenzweig & Wolosky
LLP.
23(a) - Consent of Grant Thornton LLP, independent auditors.
23(b) - Consent of Olshan Grundman Frome Rosenzweig & Wolosky
LLP (included in its opinion filed as Exhibit 5).
24 - Powers of Attorney (included on page 9).
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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 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 (i) and (ii) above do
not apply if 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 purposes 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that
remain unsold at the termination of the offering.
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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 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 this 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
and controlling persons of the registrant pursuant to the
foregoing provisions, 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 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 a
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.
D. The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, a copy of the
registrant's latest annual report to stockholders that is
incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the
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prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
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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 City of Huntingdon, State of Pennsylvania, on December 15,
1999.
HEALTHCARE SERVICES GROUP, INC.
(Registrant)
/s/ Daniel P. McCartney
---------------------------------------------------------
Daniel P. McCartney, Chief Executive Officer and Chairman
POWER OF ATTORNEYS AND SIGNATORIES
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. Each of the undersigned officers and
directors of Healthcare Services Group, Inc. hereby constitutes and appoints
Daniel P. McCartney and Thomas A Cook and each of them singly, as true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him in his name 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 and to
prepare any and all exhibits thereto, and other documents in connection
therewith, and to make any applicable state securities law or blue sky filings,
granting unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite or necessary to be done to
enable Healthcare Services Group, Inc. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and
Exchange Commission, as fully 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 their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Daniel P. McCartney Chief Executive Officer and December 15, 1999
- --------------------------- Chairman
Daniel P. McCartney
/s/ Thomas A. Cook
- --------------------------- Director and President December 15, 1999
Thomas A. Cook
/s/ W. Thacher Longstreth
- --------------------------- Director December 15, 1999
W. Thacher Longstreth
/s/ Barton D. Weisman
- --------------------------- Director December 15, 1999
Barton D. Weisman
/s/ Robert L. Frome
- --------------------------- Director December 15, 1999
Robert L. Frome
/s/ John M. Briggs
- --------------------------- Director December 15, 1999
John M. Briggs
/s/ Robert J. Moss
- --------------------------- Director December 15, 1999
Robert J. Moss
/s/ Joseph F. McCartney Director and Divisional Vice December 15, 1999
- --------------------------- President
Joseph F. McCartney
/s/ James L. DiStefano
- --------------------------- Chief Financial Officer December 15, 1999
James L. DiStefano and Treasurer
/s/ Richard W. Hudson Vice President - Finance December 15, 1999
- --------------------------- and Secretary (Principal
Richard W. Hudson Accounting Officer)
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