As filed with the Securities and Exchange Commission on October 26, 2005
Reg. No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
APO Health, Inc.
(Exact name of registrant as specified in its charter)
Nevada 86-0871787
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
3950 Oceanside Road, Oceanside, New York 11575
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
2005 PROFESSIONAL/CONSULTANT STOCK COMPENSATION PLAN
(full time of the plan)
Dr. Jan Stahl
President and Chief Executive Officer
- --------------------------------------------------------------------------------
3950 Oceanside Road
Oceanside, New York 11575
(Name and address of agent for service)
(800) 365-2839
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Amount to be offering price Aggregate offering Amount of
Title of securities Registered per share Price Registration fee
to be registered
- ----------------------- --------------------- -------------------- --------------------- ---------------------
Common Stock 2,500,000 (1) $0.022 (2) $55,000.00 $6.47
($.0002 par value)
- ----------------------- --------------------- -------------------- --------------------- ---------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also coves an indeterminate amount of
interests to be offered or sold pursuant to the 2005
Professional/Consultant Stock Compensation Plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based on
the average of the high and low prices reported on the OTC Bulletin Board
on October 25, 2005, which was $0.022.
EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to the issuance of up to
2,500,000 shares of common stock pursuant to the 2005(B) Professional/Consultant
Stock Compensation Plan of APO Health, Inc.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I of Form S-8 to be contained in a prospectus
meeting the requirements of Section 10(a) of the Securities Act of 1933, as
amended (the "Securities Act"), is not required to be filed with the Securities
and Exchange Commission and is omitted from this registration statement in
accordance with the explanatory note to Part I of Form S-8 and Rule 428 of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (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 into this Registration Statement and to be a part
hereof from the date of filing of such documents:
o Reference is made to the Registrant's annual report on Form 10-K for
the years ended September 30, 2004, 2003 and 2002 as filed with the
Securities and Exchange Commission on December 28, 2004, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form 10-Q
for the three months ended June 30, 2005, as filed with the Securities
and Exchange Commission on August 19, 2005, which is hereby
incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form 10-Q
for the three months ended March 31, 2005, as filed with the
Securities and Exchange Commission on May 23, 2005, which is hereby
incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form 10-Q
for the three months ended December 31, 2004, as filed with the
Securities and Exchange Commission on February 14, 2005, which is
hereby incorporated by reference.
o The description of the Registrant's common stock is incorporated by
reference to the Registrant's Registration Statement on Form 10-SB, as
amended (File No. 000-30074), initially filed with the Securities and
Exchange Commission on February 19, 1999.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
1
Nevada corporations are authorized to indemnify against liability any
person who is a party to any legal proceeding because such person is a director
or officer of the corporation. The officer or director must act in good faith
and in a manner reasonably believed to be in the best interests of the
corporation and, with respect to any criminal action or proceeding, have no
reasonable cause to believe the conduct was unlawful. Nevada law does not allow
indemnification for an act or omission that involves intentional misconduct or a
knowing violation of a law. In the case of an action by or on behalf of a
corporation, indemnification may not be made if the person seeking
indemnification is found liable, unless the court in which such action was
brought determines such person is fairly and reasonably entitled to
indemnification. Indemnification is required if a director or officer has been
successful on the merits.
The indemnification authorized under Nevada law is not exclusive and is in
addition to any other rights granted to officers and directors. A corporation
may purchase and maintain insurance or furnish similar protection on behalf of
any officer or director.
Our articles of incorporation provide for the indemnification of directors
and executive officers to the maximum extent permitted by Nevada law. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers or controlling persons pursuant to the
foregoing provisions or otherwise, we have been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
There is no pending litigation or proceeding involving any of our
directors, officers, employees or agents where indemnification would be required
or permitted. We are not aware of any threatened litigation or proceeding that
would result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
EXHIBIT
NUMBER EXHIBIT
- ------- -------
4.1 APO Health, Inc. 2005(B) Professional/Consultant Compensation
Plan, dated October 15, 2005.
5.1 Opinion of Sichenzia Ross Friedman Ference LLP.
23.1 Consent of Sichenzia Ross Friedman Ference LLP is contained in
Exhibit 5.1.
23.2 Consent of Linder & Linder, independent registered public
accounting firm.
2
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:
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;
(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.
(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 that is incorporated by reference in the
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.
(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 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.
3
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 Oceanside, State of New York on October 26, 2005.
APO HEALTH, INC.
By: /s/ Jan Stahl
-------------
Jan Stahl,
Chairman, Chief Executive Officer,
Acting Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement on Form S-8 has been signed by the following persons in the capacities
and on the date indicated:
Signature Title Date
/s/ Jan Stahl Director October 26, 2005
- -------------
Jan Stahl
/s/ Kenneth Leventhal Director October 26, 2005
- ---------------------
Kenneth Leventhal
4