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As filed with the Securities and Exchange Commission on June 27, 1997
Registration Statement No. 33-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
STAFFMARK, INC.
(Exact name of registrant as specified in its charter)
Delaware 71-0788538
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
302 East Millsap Road
Fayetteville, Arkansas 72703
(Address of Principal Executive Offices)
StaffMark, Inc. 1996 Stock Option Plan
(Full Title of Plan)
Gordon Y. Allison, Esq.
Executive Vice President and General Counsel
StaffMark, Inc.
302 East Millsap Road
Fayetteville, Arkansas 72703
(Name and address of agent for service)
(501) 973-6000
(Telephone number, including area code, of agent for service)
-------------------------
Copy of all communications to:
C. Douglas Buford, Jr.
Wright, Lindsey & Jennings
200 West Capitol Avenue, Suite 2200
Little Rock, Arkansas 72201
(501) 371-0808
CALCULATION OF REGISTRATION FEE
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<CAPTION>
====================================================================================================================================
Title of Proposed Proposed Amount of
Securities Amount to Maximum Offering Maximum Aggregate Registration
to be Registered be Registered Price Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 1,700,000
$.01 par value Shares N/A(1) $33,043,750(2) $10,013.26(2)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Each share being registered may be purchased at not less than the fair
market value of a share of Common Stock at the time an option to purchase such
share is granted.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and (h) and based on the average ($19.4375) of the high and low
prices of a share of Common Stock as reported on the Nasdaq Stock Market's
National Market on June 24, 1997.
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PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
StaffMark, Inc. ("Registrant" or "Company") hereby incorporates the
following documents by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed on March 17, 1997, and the
amendment thereto on Form 10-K/A filed on March 24, 1997;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the Annual Report referred to in (a)
above; and
(c) The description of the Company's common stock, $.01 par value,
contained in the Company's Form 8-A dated September 17, 1996,
including any amendment or report filed for the purpose of
updating such description.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained or 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 part hereof.
All reports and other documents filed by the Company subsequent to the
date of this registration statement pursuant to Sections 13(a), 13(c), 14, and
15(d) of the Securities Exchange Act of 1934, 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.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article IV of the Company's By-laws provides that, under specified
circumstances, the Company shall indemnify its directors, officers, employees,
or agents against expenses (including attorney's fees), judgments, fines, and
amounts paid in settlements actually and reasonably incurred by them in
connection with any action, suit, or proceeding brought by third parties by
reason of the fact that they were or are directors, officers, employees, or
agents if they acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action or proceeding, had no reason to believe their conduct
was unlawful. In a derivative action, i.e., one by or in the right of the
corporation, indemnification may be made only for expenses actually and
reasonably incurred by directors, officers, employees or agents in connection
with the defense or settlement of an action or suit, and only with respect to a
matter as to which they shall have acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no
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indemnification shall be made if such person shall have been adjudged liable to
the corporation, unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that the defendant
directors, officers, employees or agents are fairly and reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
Article Eight of the Company's Certificate of Incorporation provides
that the Company's directors will not be personally liable to the Company or
its stockholders for monetary damages resulting from breaches of their
fiduciary duty as directors except (a) for any breach of the duty of loyalty to
the Company or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the General Corporation Law of the State of Delaware, which
makes directors liable for unlawful dividends or unlawful stock repurchases or
redemptions, or (d) for transactions from which directors derive improper
personal benefit.
In accordance with Delaware law, the Company has entered or will enter
into indemnification agreements with its directors pursuant to which it has
agreed to pay certain expenses, including attorney's fees, judgments, fines and
amounts paid in settlement incurred by such directors in connection with
certain actions, suits or proceedings. These agreements require directors to
repay the amount of any expenses advanced if it shall be determined that they
are not entitled to indemnification.
The Company's directors and officers are also covered by insurance
policies indemnifying them against certain civil liabilities, including
liabilities under the federal securities laws, which might be incurred by them
in such capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
<TABLE>
<CAPTION>
Exhibit No. Exhibit
- ----------- -------
<S> <C>
4.1 Certificate of Incorporation of StaffMark, Inc. (Incorporated by reference from Exhibit 3.1 to
the Company's Registration Statement on Form S-1 (File No. 333-7513)).
4.2 Certificate of Amendment of Certificate of Incorporation of StaffMark, Inc. (Incorporated by
reference from Exhibit 3.2 to the Company's Registration Statement on Form S-1 (File No. 333-
7513)).
4.3 Amended and Restated Bylaws of the Company (Incorporated by reference from Exhibit 3.3 to the
Company's Registration Statement on Form S-1 (File No. 333-7513)).
4.4 Form of certificate evidencing ownership of Common Stock of the Company (Incorporated by
reference from Exhibit 4.1 to the Company's Registration Statement on Form S-1 (File No. 333-
7513)).
</TABLE>
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<TABLE>
<S> <C>
4.5 StaffMark, Inc. 1996 Stock Option Plan (Incorporated by reference from Exhibit 10.1 to the
Company's Registration Statement on Form S-1 (File No. 333-7513)).
4.6 Form of Stock Option Agreement
5.1 Opinion of Wright, Lindsey & Jennings
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of Wright, Lindsey & Jennings (included as part of Exhibit 5.1)
24.1 Powers of Attorney (included as part of signature page)
</TABLE>
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.
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 aggregate, the changes in volume and price represent no
more than a 20% change 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) 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 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 relating to the securities
3
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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 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.
4
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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 Fayetteville, State of Arkansas, on June 26,
1997.
STAFFMARK, INC.
By /s/ CLETE T. BREWER
--------------------------------------
Clete T. Brewer
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Clete T. Brewer, Terry C.
Bellora, and Gordon Y. Allison, and each or either one of them, their true and
lawful attorney- in-fact and agent, with full power of substitution and
resubstitution for then and in their name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement on Form S-8 and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the
premises, 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 any of them, or their or his 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 by or on behalf the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ JERRY T. BREWER Chairman of the Board June 26, 1997
-----------------------------------------
Jerry T. Brewer
/s/ CLETE T. BREWER Chief Executive Officer, President and June 26, 1997
----------------------------------------- Director
Clete T. Brewer
/s/ TERRY C. BELLORA Chief Financial Officer June 26, 1997
----------------------------------------- (Principal Financial and Accounting
Terry C. Bellora Officer)
/s/ W. DAVID BARTHOLOMEW Executive Vice President - June 26, 1997
----------------------------------------- Southeastern Operations and Director
W. David Bartholomew
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ STEVEN E. SCHULTE Executive Vice President - June 26, 1997
----------------------------------------- Administration and Director
Steven E. Schulte
/s/ JOHN H. MAXWELL, Jr Executive Vice President - Medical June 26, 1997
----------------------------------------- Services and Director
John H. Maxwell, Jr.
/s/ JANICE BLETHEN Executive Vice President - Clinical June 26, 1997
----------------------------------------- Trials Support Services and Director
Janice Blethen
/s/ WILLIAM T. GREGORY General Manager - Carolina Region and June 26, 1997
----------------------------------------- Director
William T. Gregory
/s/ WILLIAM J. LYNCH Director June 26, 1997
-----------------------------------------
William J. Lynch
/s/ R. CLAYTON MCWHORTER Director June 26, 1997
-----------------------------------------
R. Clayton McWhorter
/s/ CHARLES A. SANDERS, M.D. Director June 26, 1997
-----------------------------------------
Charles A. Sanders, M.D.
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Exhibit
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<S> <C>
4.1 Certificate of Incorporation of StaffMark, Inc. (Incorporated by reference from Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (File No. 333-7513)).
4.2 Certificate of Amendment of Certificate of Incorporation of StaffMark, Inc. (Incorporated by
reference from Exhibit 3.2 to the Company's Registration Statement on Form S-1 (File No. 333-
7513)).
4.3 Amended and Restated Bylaws of the Company (Incorporated by reference from Exhibit 3.3 to the
Company's Registration Statement on Form S-1 (File No. 333-7513)).
4.4 Form of certificate evidencing ownership of Common Stock of the Company (Incorporated by reference
from Exhibit 4.1 to the Company's Registration Statement on Form S-1 (File No. 333-7513)).
4.5 StaffMark, Inc. 1996 Stock Option Plan (Incorporated by reference from Exhibit 10.1 to the
Company's Registration Statement on Form S-1 (File No. 333-7513)).
4.6 Form of Stock Option Agreement
5.1 Opinion of Wright, Lindsey & Jennings
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of Wright, Lindsey & Jennings (included as part of Exhibit 5.1)
24.1 Powers of Attorney (included as part of signature page)
</TABLE>
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EXHIBIT 4.6
STAFFMARK, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made as of ____________,
19___, by and between StaffMark, Inc., a Delaware corporation ("Company"), and
___________ ("Employee").
WHEREAS, ___________ is a valuable and trusted employee of the Company,
and the Company considers it desirable and in its best interests to attract and
retain in its employ persons of outstanding competence, and to promote the
shareholder point of view among employees of the Company. The Company grants
this non-qualified stock option in accordance with the StaffMark, Inc. 1996
Stock Option Plan ("Plan").
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties as follows:
1. Grant of Stock Options. The Company hereby grants to Employee
an option to purchase ______________ (_____) shares of common stock of the
Company (the "Option") at a price of $______ per share in the manner and
subject to the conditions hereinafter provided. This grant shall be of NQSOs
as that term is defined in the Plan.
2. Time of Exercise of Option. The aforesaid Option may be
exercised as follows:
(a) After two years from the date of this Agreement,
Employee may exercise up to 40% of the Option granted hereunder;
(b) After three years from the date of this Agreement,
Employee may exercise up to 60% of the Option granted hereunder;
(c) After four years from the date of this Agreement,
Employee may exercise up to 80% of the Option granted hereunder; and
(d) After five years from the date of this Agreement,
Employee may exercise up to 100% of the Option granted hereunder.
3. Method of Exercise. The Option shall be exercised by (a)
written notice delivered or mailed by prepaid registered or certified mail,
directed to the Secretary of the Company, at the Company's principal place of
business, specifying the number of shares to be exercised pursuant to the
Option and (b) payment to the Company (contemporaneously with the delivery of
each such notice), in cash, certified check, bank draft, wire transfer, or
postal or express money order payable to the order of the Company for an amount
equal to the Option price of such shares and any income tax which may be
required to be withheld pursuant to Section 12 of the Plan. Employee will
receive the number of shares as set forth in Paragraph 1, after adjustment for
stock splits, stock dividends or other dilution of the value of the Option by
the Company issuing shares for less than fair market value as determined by the
Board of Directors (the "Shares"). Within ten (10) days of the date notice is
received by the Company, the Company shall issue such shares to Employee,
provided that if any law or regulation requires the Company to take any action
with respect to the shares specified
<PAGE> 2
in such notice before the payment thereof, then the date of such payment shall
be extended for the period necessary to take such action.
4. Termination of Options. Except as herein otherwise stated, the
Option to the extent not heretofore exercised shall terminate upon the first to
occur of the following dates:
(a) The date on which Employee's employment by the Company
is terminated for cause (as determined by the board of directors or
compensation committee of the Company);
(b) The expiration of three months after the date on which
Employee's employment by the Company is terminated (including death or
permanent and total disability); or
(c) _________, ____ (being the expiration of ten years from
the grant of these Options).
In no event shall any Option be exercisable for more than the maximum
number of shares that Employee was entitled to purchase at the date of
termination, unless otherwise determined by the Committee at the time of
termination.
5. Rights Prior to Exercise of Options. This grant of the Option
is nontransferable by Employee, except in the event of her death (in which case
such Options may be exercised by Employee's legal representative) and during
her lifetime is exercisable only by her. Employee shall have no rights as a
stockholder with respect to the Option.
6. Subject to StaffMark, Inc. 1996 Stock Option Plan. The Option
shall be in all respects limited and conditioned as provided in the Plan. In
addition, exercise of the Option shall be subject to Employee making any
representations to such matters as the Board of Directors of the Company, in
its discretion, may determine from time to time to be necessary or advisable to
evidence compliance with the requirements of the Securities Act of 1933, as
amended, or state or other securities laws, rules or regulations with respect
to the registration or exemption from registration of any offer or sale of the
Company's securities pursuant to the Plan.
Neither this Agreement nor the Plan shall be construed as giving
Employee any right to be retained in the employ of the Company and neither
shall be construed as limiting in any way the Company's right to terminate or
change the terms of Employee's employment.
7. This Agreement, upon delivery of an executed copy to the Company
shall constitute a binding non-qualified stock option agreement between
Employee and the Company.
[The remainder of this page left intentionally blank.]
<PAGE> 3
In witness whereof the parties have caused this Agreement to be
executed on the day and year first above written.
STAFFMARK, INC.
By:
-------------------------------------
Clete T. Brewer,
President
ATTEST:
- ------------------------------
Terry C. Bellora, Secretary
EMPLOYEE:
----------------------------------------
--------------
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EXHIBIT 5.1
[Wright, Lindsey & Jennings Letterhead]
June 26, 1997
StaffMark, Inc.
302 East Millsap Road
Fayetteville, Arkansas 72703
RE: Registration Statement on Form S-8 regarding Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to StaffMark, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, of a Registration Statement on Form S-8 (the "Registration Statement")
relating to the offering by the Company of up to 1,700,000 shares (the
"Shares") of the Company's common stock, $0.01 par value per share, to be
issued pursuant to the StaffMark, Inc. 1996 Stock Option Plan (the "Plan").
In so acting we have examined originals, or copies certified or
otherwise identified to our satisfaction, of (a) the Amended and Restated
Certificate of Incorporation of the Company, (b) the By-Laws of the Company,
and (c) such other documents, records, certificates and other instruments as in
our judgment are necessary or appropriate for purposes of this opinion. We
have assumed that (i) the Shares will be issued against receipt of the
consideration approved by the Board of Directors of the Company or a committee
thereof, which will be no less than the par value thereof, and (ii) the Shares
will be issued in compliance with applicable federal and state securities laws.
Based on the foregoing, we are of the opinion that the Shares, when
issued in accordance with the Plan, will be duly authorized, validly issued,
fully paid and non-assessable.
We are expressing this opinion as members of the Bar of the State of
Arkansas and express no opinion as to any law other than the General
Corporation Law of the State of Delaware.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
WRIGHT, LINDSEY & JENNINGS
/s/ WRIGHT, LINDSEY & JENNINGS
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of StaffMark, Inc. on Form S-8 (to be
filed on or around June 27, 1997) of our reports dated February 5, 1997 and
October 22, 1996 included in StaffMark, Inc.'s Annual Report on Form 10-K, as
amended, for the year ended December 31, 1996 and to all references to our Firm
included in this Registration Statement.
Little Rock, Arkansas
June 26, 1997
/s/ ARTHUR ANDERSEN LLP
---------------------------------------
ARTHUR ANDERSEN LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of StaffMark, Inc. on Form S-8 (to be
filed on or around June 27, 1997) of our report dated October 22, 1996 included
in StaffMark, Inc.'s Annual Report on Form 10-K, as amended, for the year ended
December 31, 1996, and to all references to our Firm included in this
Registration Statement.
Memphis, Tennessee
June 26, 1997
/s/ ARTHUR ANDERSEN LLP
---------------------------------------
ARTHUR ANDERSEN LLP
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of StaffMark, Inc. on Form S-8 (to be
filed on or around June 27, 1997) of our reports dated October 22, 1996 included
in StaffMark, Inc.'s Annual Report on Form 10-K, as amended, for the year ended
December 31, 1996 and to all references to our Firm included in this
Registration Statement.
Raleigh, North Carolina
June 26, 1997
/s/ ARTHUR ANDERSEN LLP
---------------------------------------
ARTHUR ANDERSEN LLP
