<PAGE> 1
As filed with the Securities and Exchange Commission on June 20, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------
STAFFMARK, INC.
(Exact name of issuer as specified in its charter)
Delaware 71-0788538
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
302 East Millsap Road
Fayetteville, AR 72703
(Address of principal executive offices)
StaffMark, Inc.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
GORDON Y. ALLISON, ESQ.
Executive Vice President and General Counsel
StaffMark, Inc.
302 East Millsap Road
Fayetteville, AR 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:
BRIAN J. LYNCH, ESQ.
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103
(215) 963-5523
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered(1) registered per share offering price registration fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 300,000 $19.4375(1) $ 5,831,250(1) $1,767.05(1)
value $.01 per share
======================================================================================================================
</TABLE>
(1) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for
the purpose of calculating the registration fee, based upon the
average of the reported high and low prices of shares of Common Stock
on June 17, 1997, reported on the Nasdaq National Market.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by StaffMark, Inc. (the
"Company") with the Securities and Exchange Commission, are incorporated by
reference in this Registration Statement and made a part hereof:
(a) The Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996, as amended by Form 10-K/A;
(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 Common Stock of the
Company that is contained in its Registration Statement on Form 8-A
filed with the Securities and Exchange Commission on September 17,
1996 under the Securities Exchange Act of 1934, 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 subsequently filed by the
Company 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 that
indicates that all securities offered hereby have been sold or that deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be 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.
The Company's By-laws provide that the Company shall, to
the fullest extent permitted by Section 145 of the General Corporation Law of
the State of Delaware, as amended from time to time, indemnify all persons whom
it may indemnify pursuant thereto.
Section 145 of the General Corporation Law of the State of
Delaware permits a corporation, under specified circumstances, to 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,
employee or agents 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
1
<PAGE> 3
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 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 indemnify for such expenses
despite such adjudication of liability.
Article Seven of the Company's Certificates 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 intends to
enter into indemnification agreements with its directors, pursuant to which it
will agree to pay certain expenses, including attorneys' 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement
are as follows:
Exhibit
Number Exhibit
- ------- -------
4.1 Certificate of Incorporation of the Company (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
(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 By-Laws of the Company, as amended
(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. Employee Stock Purchase Plan.
5 Opinion of Morgan, Lewis & Bockius LLP
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 Morgan, Lewis & Bockius LLP (included as part of
Exhibit 5)
24 Power of Attorney (included as part of the signature page)
2
<PAGE> 4
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) (Section 230.424(b) of
this chapter) 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 subparagraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the information required to be
included in a post-effective amendment by those subparagraphs is contained in
periodic reports filed by the Company 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 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 that remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
filing of the Company'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 this
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) 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, the latest annual report to security holders 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 are not set forth in the 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.
(d) 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
3
<PAGE> 5
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
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company 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 this
19th day of June, 1997.
STAFFMARK, INC.
By: /s/Clete T. Brewer
------------------------------------
Clete T. Brewer
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by or on behalf of the
following persons in the capacities and on the dates indicated. Each person,
in so signing, also makes, constitutes and appoints Clete T. Brewer, Terry C.
Bellora and Gordon Y. Allison, and each of such officers acting singly, his
true and lawful attorney-in-fact, in his or her name, place and stead to
execute and cause to be filed with the Securities and Exchange Commission any
or all amendments to this Registration Statement, with all exhibits and any and
all documents required to be filed with respect thereto, and to do and perform
each and every act and thing necessary to effectuate the same.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ CLETE T. BREWER President, Chief Executive June 19, 1997
- ------------------------------------ Officer and Director
Clete T. Brewer (Principal Executive Officer)
/s/ TERRY C. BELLORA Chief Financial Officer June 19, 1997
- ------------------------------------ (Principal Financial
Terry C. Bellora and Accounting Officer)
/s/ JERRY T. BREWER Chairman of the Board June 19, 1997
- ------------------------------------
Jerry T. Brewer
/s/ W. DAVID BARTHOLOMEW Executive Vice President -- June 19, 1997
- ------------------------------------ Southeastern Operations and Director
W. David Bartholomew
/s/ STEVEN E. SCHULTE Executive Vice President -- June 19, 1997
- ------------------------------------ Administration and Director
Steven E. Schulte
/s/ JOHN H. MAXWELL, JR. Executive Vice President -- June 19, 1997
- ------------------------------------ Medical Services and Director
John H. Maxwell, Jr.
/s/ JANICE BLETHEN Executive Vice President -- June 19, 1997
- ------------------------------------ Clinical Trials Support
Janice Blethen Services and Director
/s/ WILLIAM T. GREGORY General Manager -- June 19, 1997
- ------------------------------------ Carolina Region and Director
William T. Gregory
/s/ WILLIAM J. LYNCH Director June 19, 1997
- ------------------------------------
William J. Lynch
/s/ R. CLAYTON McWHORTER Director June 19, 1997
- ------------------------------------
R. Clayton McWhorter
/s/ CHARLES A. SANDERS Director June 19, 1997
- ------------------------------------
Charles A. Sanders, M.D.
</TABLE>
5
<PAGE> 7
Index to Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------- -------
<S> <C>
4.1 Certificate of Incorporation of the Company (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
(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 By-Laws of the Company, as amended
(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. Employee Stock Purchase Plan.
5 Opinion of Morgan, Lewis & Bockius LLP
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 Morgan, Lewis & Bockius LLP (included as part of
Exhibit 5)
24 Power of Attorney (included as part of the signature page)
</TABLE>
<PAGE> 1
EXHIBIT 4.5
STAFFMARK, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.01 Statement of Purpose . . . . . . . . . . . . . . . . . . 1
Sec. 1.02 Internal Revenue Code Considerations . . . . . . . . . . 1
Sec. 1.03 ERISA Considerations . . . . . . . . . . . . . . . . . . 1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 2.01 "Board of Directors . . . . . . . . . . . . . . . . . . . 1
Sec. 2.02 "Code . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 2.03 "Committee . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 2.04 "Company . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 2.05 "Continuous Service . . . . . . . . . . . . . . . . . . . 1
Sec. 2.06 "Effective Date" . . . . . . . . . . . . . . . . . . . . 1
Sec. 2.07 "Election Date . . . . . . . . . . . . . . . . . . . . . 1
Sec. 2.08 "Eligible Employee" . . . . . . . . . . . . . . . . . . . 2
Sec. 2.09 "Employee" . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 2.10 "Employer" . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 2.11 "Exchange Act" . . . . . . . . . . . . . . . . . . . . . 2
Sec. 2.12 "Excused Absence" . . . . . . . . . . . . . . . . . . . . 2
Sec. 2.13 "Market Value" . . . . . . . . . . . . . . . . . . . . . 2
Sec. 2.14 "Participant" . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 2.15 "Plan" . . . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 2.16 "Purchase Agreement" . . . . . . . . . . . . . . . . . . 2
Sec. 2.17 "Purchase Date" . . . . . . . . . . . . . . . . . . . . . 3
Sec. 2.18 "Purchase Period . . . . . . . . . . . . . . . . . . . . 3
Sec. 2.19 "Stock" . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sec. 2.20 "Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Admission to Participation . . . . . . . . . . . . . . . . . . . . . 3
Sec. 3.01 Initial Participation . . . . . . . . . . . . . . . . . . 3
Sec. 3.02 Discontinuance of Participation . . . . . . . . . . . . . 3
Sec. 3.03 Readmission to Participation . . . . . . . . . . . . . . 3
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Stock Purchase and Resale . . . . . . . . . . . . . . . . . . . . . 4
Sec. 4.01 Reservation of Shares . . . . . . . . . . . . . . . . . . 4
Sec. 4.02 Limitation on Shares Available . . . . . . . . . . . . . 4
Sec. 4.03 Purchase Price of Shares . . . . . . . . . . . . . . . . 4
Sec. 4.04 Exercise of Purchase Privilege . . . . . . . . . . . . . 4
Sec. 4.05 Payroll Deductions . . . . . . . . . . . . . . . . . . . 5
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Sec. 4.06 Payment for Stock . . . . . . . . . . . . . . . . . . . . 5
Sec. 4.07 Share Ownership; Issuance of Certificates . . . . . . . . 5
Sec. 4.08 Withdrawal of Shares or Resale of Stock . . . . . . . . . 6
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Special Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 7
Sec. 5.01 Shares Unavailable . . . . . . . . . . . . . . . . . . . 7
Sec. 5.02 Anti-Dilution Provisions . . . . . . . . . . . . . . . . 7
Sec. 5.03 Effect of Certain Transactions . . . . . . . . . . . . . 7
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sec. 6.01 Non-Alienation . . . . . . . . . . . . . . . . . . . . . 7
Sec. 6.02 Administrative Costs . . . . . . . . . . . . . . . . . . 8
Sec. 6.03 The Committee . . . . . . . . . . . . . . . . . . . . . . 8
Sec. 6.04 Amendment of the Plan . . . . . . . . . . . . . . . . . . 8
Sec. 6.05 Expiration and Termination of the Plan . . . . . . . . . 8
Sec. 6.06 Repurchase of Stock . . . . . . . . . . . . . . . . . . . 8
Sec. 6.07 Notice . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sec. 6.08 Government Regulation . . . . . . . . . . . . . . . . . . 8
Sec. 6.09 Headings, Captions, Gender . . . . . . . . . . . . . . . 9
Sec. 6.10 Severability of Provisions, Prevailing Law . . . . . . . 9
</TABLE>
<PAGE> 4
ARTICLE I
Introduction
Sec. 1.01 Statement of Purpose. The purpose of the
StaffMark, Inc. Employee Stock Purchase Plan is to provide eligible employees
of the Company and its subsidiaries, who wish to become shareholders, an
opportunity to purchase common stock of the Company. The board of directors of
the Company believes that employee participation in stock ownership will be to
the mutual benefit of both the employees and the Company.
Sec. 1.02 Internal Revenue Code Considerations. The Plan is
intended to constitute an "employee stock purchase plan" within the meaning of
section 423 of the Internal Revenue Code of 1986, as amended.
Sec. 1.03 ERISA Considerations. The Plan is not intended and
shall not be construed as constituting an "employee benefit plan," within the
meaning of section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended.
ARTICLE II
Definitions
Sec. 2.01 "Board of Directors" means the board of directors
of the Company or a committee of the board of directors authorized to act on
its behalf.
Sec. 2.02 "Code" means the Internal Revenue Code of 1986, as
amended, and any successor statute of similar nature. References to specific
sections of the Code shall be taken to be references to corresponding sections
of any successor statute.
Sec. 2.03 "Committee" means the committee appointed by the
Board of Directors to administer the Plan, as provided in Section 6.03 hereof.
Sec. 2.04 "Company" means StaffMark, Inc., a Delaware
corporation.
Sec. 2.05 "Continuous Service" means the period of time
immediately preceding the Election Date during which the Employee has been
employed by an Employer and during which there has been no interruption of the
Employee's employment with the Employer. For this purpose, periods of Excused
Absence shall not be considered to be interruptions of Continuous Service.
Sec. 2.06 "Effective Date" shall mean June 1, 1997 provided
that within twelve months of that date, the Plan is approved at a meeting of
the shareholders of the Company.
Sec. 2.07 "Election Date" means each January 1 and July 1 or
such other dates as the Committee shall specify.
<PAGE> 5
Sec. 2.08 "Eligible Employee" means each Employee who (i) is
classified by the Employer as an active regular full or part-time employee;
(ii) is not deemed for purposes of section 423(b)(3) of the Code to own stock
possessing five percent (5%) or more of the total combined voting power or
value of all classes of stock of the Company or any Subsidiary; and (iii) has
completed at least one year of Continuous Service with the Employer.
Sec. 2.09 "Employee" means each person employed by an
Employer if such person's customary employment is for more than twenty (20)
hours per week and for more than five (5) months per year. The term shall not
include any person employed by an Employer on a temporary basis.
Sec. 2.10 "Employer" means the Company and each Subsidiary.
Sec. 2.11 "Exchange Act" means the Securities Exchange Act of
1934, as amended, and as the same may hereafter be amended.
Sec. 2.12 "Excused Absence" means absence pursuant to a leave
of absence granted by the Employer, absence due to disability or illness,
absence by reason of a layoff or inactive status due to completion of an
assignment, or absence by reason of uniformed service within the meaning of the
Uniformed Services Employment and Reemployment Rights Act ("USERRA"). In no
event may an Excused Absence exceed six (6) months in length (or, if longer and
if applicable, the period of the individual's uniformed services within the
meaning of the USERRA and such period thereafter as such individual's right to
reemployment by Employer is protected by law), and any absence shall cease to
be an Excused Absence upon the earlier of (a) the last day of the calendar
month in which the duration of the absence reaches six (6) months (or such
longer period as may be required under the USERRA or other applicable law) or
(b) the last day of the calendar month in which the leave expires by its terms,
the layoff or inactive status ends by recall or permanent separation from
service, or recovery from illness or disability occurs.
Sec. 2.13 "Market Value" means the last price for the Stock
as reported on the Nasdaq National Market for the date of reference. If there
was no such price reported for the date of reference, "Market Value" means the
"Market Value" as of the date next preceding the date of reference for which
such price was reported.
Sec. 2.14 "Participant" means each Eligible Employee who
elects to participate in the Plan.
Sec. 2.15 "Plan" means the StaffMark Employee Stock Purchase
Plan, as the same is set forth herein and as the same may hereafter be amended.
Sec. 2.16 "Purchase Agreement" means the instrument
prescribed by the Committee pursuant to which an Eligible Employee may enroll
as a Participant and subscribe for the purchase of shares of Stock on the terms
and conditions offered by the Company. The Purchase Agreement also is intended
to evidence the Company's offer of an option to the Eligible Employee to
purchase Stock on the terms and conditions set forth therein and herein.
-2-
<PAGE> 6
Sec. 2.17 "Purchase Date" means September 30, 1997 and the
last day of each Purchase Period ending thereafter.
Sec. 2.18 "Purchase Period" means the period July 1, 1997 (or
such later date as designated by the Committee) through September 30, 1997 and,
thereafter, each calendar quarter or other period specified by the Board of
Directors during which the Participant's stock purchase is funded through
payroll deduction accumulations.
Sec. 2.19 "Stock" means the common stock of the Company.
Sec. 2.20 "Subsidiary" means any present or future
corporation (i) which constitutes a "subsidiary corporation" of the Company as
that term is defined in section 424 of the Code, and (ii) is designated as a
participating entity in the Plan by the Committee. Unless the Committee
specifically designates otherwise, a Canadian or other foreign subsidiary shall
not be considered a Subsidiary for purposes of the Plan, and employees of such
a subsidiary shall not be Eligible Employees.
ARTICLE III
Admission to Participation
Sec. 3.01 Initial Participation. Any Eligible Employee may
elect to be participate in the Plan and may become a Participant effective as
of any Election Date, by executing and filing with the Committee a Purchase
Agreement at such time in advance of such Election Date as the Committee shall
prescribe. Such Purchase Agreement shall remain in effect until modified or
canceled in accordance with the further terms of this Plan, as hereinafter set
forth.
Sec. 3.02 Discontinuance of Participation. A Participant may
voluntarily cease his or her participation in the Plan and stop payroll
deductions at any time by filing a notice of cessation of participation on such
form and at such time in advance of the effective date as the Committee shall
prescribe. Notwithstanding anything in the Plan to the contrary, if a
Participant ceases to be an Eligible Employee, his or her participation
automatically shall cease and no further purchase of Stock shall be made for
such Participant hereunder.
Sec. 3.03 Readmission to Participation. Any Eligible
Employee who has previously been a Participant, who has discontinued
participation (whether by cessation of eligibility or otherwise), and who
wishes to be reinstated as a Participant may again become a Participant by
executing and filing with the Committee a new Purchase Agreement.
Reinstatement to Participant status shall be effective as of any Election Date,
provided the Participant files such new Purchase Agreement with the Committee
at such time in advance of such Election Date as the Committee shall prescribe.
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ARTICLE IV
Stock Purchase and Resale
Sec. 4.01 Reservation of Shares. There shall be 300,000
shares of Stock reserved for the Plan, subject to adjustment in accordance with
the antidilution provisions hereinafter set forth. Except as provided in
Section 5.02 hereof, the aggregate number of shares of Stock that may be
purchased under the Plan shall not exceed the number of shares of Stock
reserved for the Plan.
Sec. 4.02 Limitation on Shares Available. The maximum number
of shares of Stock that may be purchased for each Participant on a Purchase
Date is the lesser of (a) the number of whole and fractional shares of Stock
that can be purchased by applying the full balance of the Participant's
withheld funds to such purchase of shares of Stock at the Purchase Price (as
hereinafter determined), or (b) the Participant's proportionate part of the
maximum number of shares of Stock available within the limitation established
by the maximum aggregate number of such shares reserved for the Plan, as stated
in Section 4.01 hereof. Notwithstanding the foregoing, if any person entitled
to purchase shares pursuant to any offering hereunder would be deemed for the
purposes of section 423(b)(3) of the Code to own stock (including any number of
shares of Stock that such person would be entitled to purchase hereunder)
possessing five percent (5%) or more of the total combined voting power or
value of all classes of stock of Company, the maximum number of shares of Stock
that such person shall be entitled to purchase pursuant to the Plan shall be
reduced to that number which, when added to the number of shares of stock that
such person is so deemed to own (excluding any number of shares of Stock that
such person would be entitled to purchase hereunder), is one less than such
five percent (5%). Any amounts withheld from the Participant's compensation
that cannot be applied by reason of the foregoing limitation shall be returned
to the Participant as soon as practicable.
Sec. 4.03 Purchase Price of Shares. The Purchase Price per
share of the Stock sold to Participants pursuant to any offering hereunder
shall be the lower of eighty-five percent (85%) of the Market Value of such
share on the first day of the Purchase Period or the Purchase Date.
Notwithstanding the foregoing, the Board of Directors may determine that the
Purchase Price shall be the Market Value, or a percentage of the Market Value
on either of such dates or the lower of such dates, so long as such percentage
shall not be lower than eighty-five percent (85%) of such Market Value.
Sec. 4.04 Exercise of Purchase Privilege.
(a) Each Participant shall be granted an option
to purchase shares of Stock as of the first day of each Purchase Period at the
Purchase Price specified in Section 4.03. The option shall continue in effect
through the Purchase Date for the Purchase Period. Subject to the provisions of
Section 4.02 above and of paragraph (c) of this Section 4.04, on each Purchase
Date, the Participant shall be automatically deemed to have exercised his or
her option to purchase shares of Stock on the Purchase Date, unless he or she
notifies the Committee, in such manner and at such time in advance of the
Purchase Date as the Committee shall prescribe, of his or her desire not to
make such purchase.
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<PAGE> 8
(b) There shall be purchased for the Participant
on such Purchase Date at the Purchase Price for such Purchase Period the
largest number of whole and fractional shares of Stock as can be purchased with
the amounts withheld from the Participant's compensation during the Purchase
Period. Each such purchase shall be deemed to have occurred on the Purchase
Date occurring at the close of the Purchase Period for which the purchase was
made.
(c) A Participant may not purchase shares of
Stock having an aggregate Market Value of more than twenty-five thousand
dollars ($25,000), determined at the beginning of each Purchase Period, for any
calendar year in which one or more such offerings are outstanding at any time,
and a Participant may not purchase a share of Stock under any offering after
the expiration of the Purchase Period for such offering.
Sec. 4.05 Payroll Deductions. Each Participant shall
authorize payroll deductions from his or her compensation for the purpose of
funding the purchase of Stock pursuant to his or her Purchase Agreement. In
the Purchase Agreement, each Participant shall authorize an after-tax payroll
deduction from each payment of his compensation during a Purchase Period, of an
amount not less than $10 per paycheck ($20 for any Participant on a monthly
payroll period) and not more than 10% of such Participant's compensation. A
Participant may change the deduction to any permissible level effective as of
any Election Date. Such change shall be made by the Participant's filing with
the Committee a notice in such form and at such time in advance of the date on
which such change is to be effective as the Committee shall prescribe.
Sec. 4.06 Payment for Stock. The Purchase Price for all
shares of Stock purchased by a Participant under the Plan shall be paid out of
the Participant's authorized payroll deductions. All funds received or held by
the Company under the Plan are general assets of the Company, free of any trust
or other restriction, and may be used for any corporate purpose.
Sec. 4.07 Share Ownership; Issuance of Certificates.
(a) The shares of Stock purchased by a
Participant on a Purchase Date shall, for all purposes, be deemed to have been
issued and/or sold at the close of business on such Purchase Date. Prior to
that time, none of the rights or privileges of a shareholder of the Company
shall inure to the Participant with respect to such shares of Stock. All the
shares of Stock purchased under the Plan shall be delivered by the Company in a
manner as determined by the Committee.
(b) The Committee, in its sole discretion, may
determine that the shares of Stock shall be delivered by the Company by (i)
issuing and delivering to the Participant a certificate for the number of
shares of Stock purchased by such Participant on a Purchase Date or during a
calendar year or other period determined by the Committee, (ii) issuing and
delivering a certificate or certificates for the number of shares of Stock
purchased by all Participants on a Purchase Date or during a calendar year or
other period determined by the Committee to a firm which is a member of the
National Association of Securities Dealers, as selected by the Committee from
time to time, which shares shall be maintained by such firm in separate
brokerage accounts of each Participant, or (iii) issuing and delivering a
certificate or certificates for the number of shares of Stock purchased by all
Participants on a Purchase Date or during the calendar
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<PAGE> 9
year or other period determined by the Committee to a bank or trust company or
affiliate thereof, as selected by the Committee from time to time, which shares
may be held by such bank or trust company or affiliate in "street name", but
with separate accounts maintained by such entity for each Participant
reflecting such Participant's whole share interests in the Stock. Each
certificate or account, as the case may be, may be in the name of the
Participant or, if he/she designates on the Participant's Purchase Agreement,
in the Participant's name jointly with the Participant's spouse, with right of
survivorship. A Participant who is a resident of a jurisdiction that does not
recognize such joint tenancy may have a certificate or account in the
Participant's name as tenant in common with the Participant's spouse, without
right of survivorship. Such designation may be changed by filing notice
thereof.
(c) In addition to any restrictions or
limitations on the resale of Stock purchased under the Plan set forth in
Section 4.08 hereof or otherwise hereunder, the Committee, in its sole
discretion, may impose such restrictions or limitations, as it shall determine,
on the resale of Stock, the issuance of individual stock certificates or
withdrawal from any shareholder accounts established for a Participant pursuant
to the terms hereof.
(d) Any dividends payable with respect to whole
or fractional shares of Stock credited to a shareholder account of a
Participant established pursuant to Section 4.07(b) hereof will be reinvested
in shares of Stock and credited to such Participant's account.
Sec. 4.08 Withdrawal of Shares or Resale of Stock.
(a) A Participant may not sell any shares of
Stock purchased hereunder or withdraw his or her shares of Stock from any
shareholder account established pursuant to Section 4.07(b) hereof prior to the
first anniversary of the Purchase Date on which the shares were purchased.
After the first anniversary of the Purchase Date for shares of Stock, the
Participant may request a withdrawal of those shares or order the sale of those
shares at any time by making a request in such form and at such time as the
Committee shall prescribe.
(b) Notwithstanding the foregoing, in the event a
Participant terminates his or her employment with all Employers or otherwise
ceases to be an Eligible Employee, he or she shall receive a distribution of
his or her shares of Stock held in any shareholder account established pursuant
to Section 4.07(b), unless he or she elects to have such shares of Stock sold
in accordance with such procedures as the Committee shall prescribe.
(c) If a Participant is to receive a withdrawal
or distribution of shares of Stock, the withdrawal or distribution shall be
paid in whole shares of Stock, with fractional shares paid in cash.
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<PAGE> 10
ARTICLE V
Special Adjustments
Sec. 5.01 Shares Unavailable. If, on any Purchase Date, the
aggregate funds available for the purchase of Stock would purchase a number of
shares in excess of the number of shares of Stock then available for purchase
under the Plan, the following events shall occur:
(a) The number of shares of Stock that would
otherwise be purchased by each Participant shall be proportionately reduced on
the Purchase Date in order to eliminate such excess; and
(b) The Plan shall automatically terminate
immediately after the Purchase Date as of which the supply of available shares
is exhausted.
Sec. 5.02 Anti-Dilution Provisions. The aggregate number of
shares of Stock reserved for purchase under the Plan, as hereinabove provided,
and the calculation of the Purchase Price per share may be appropriately
adjusted to reflect any increase or decrease in the number of issued shares of
Stock resulting from a subdivision or consolidation of shares or other capital
adjustment, or the payment of a stock dividend, or other increase or decrease
in such shares, if effected without receipt of consideration by the Company.
Any such adjustment shall be made by the Committee acting with the consent of,
and subject to the approval of, the Board of Directors.
Sec. 5.03 Effect of Certain Transactions. Subject to any
required action by the shareholders, if the Company shall be the surviving or
resulting corporation in any merger or consolidation, any offering hereunder
shall pertain to and apply to the shares of stock of the Company. However, in
the event of a dissolution or liquidation of the Company, or of a merger or
consolidation in which the Company is not the surviving or resulting
corporation, the Plan and any offering hereunder shall terminate upon the
effective date of such dissolution, liquidation, merger or consolidation, and
the balance of any amounts withheld from the Participant's compensation, which
had not by such time been applied to the purchase of stock shall be returned to
the Participant.
ARTICLE VI
Miscellaneous.
Sec. 6.01 Non-Alienation. The right to purchase shares of
Stock under the Plan is personal to the Participant, is exercisable only by the
Participant during the Participant's lifetime except as hereinafter set forth,
and may not be assigned or otherwise transferred by the Participant.
Notwithstanding the foregoing, there shall be delivered to the executor,
administrator or other personal representative of a deceased Participant such
shares of Stock and such residual amounts as may remain to the Participant's
credit from amounts withheld from the Participant's compensation as of the
Purchase Date occurring at the close of the period in which the Participant's
death occurs, including shares of Stock purchased as of that date or prior
thereto with moneys withheld from the Participant's compensation.
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<PAGE> 11
Sec. 6.02 Administrative Costs. The Company shall pay all
administrative expenses associated with the operation of the Plan.
Sec. 6.03 The Committee. The Board of Directors shall
appoint a Committee, which shall have the authority and power to administer the
Plan and to make, adopt, construe, and enforce rules and regulations not
inconsistent with the provisions of the Plan. The Committee shall adopt and
prescribe the contents of all forms required in connection with the
administration of the Plan, including, but not limited to, the Purchase
Agreement, payroll withholding authorizations, withdrawal documents, and all
other notices required hereunder. The Committee shall have the fullest
discretion permissible under law in the discharge of its duties. The
Committee's interpretations and decisions in respect of the Plan, the rules and
regulations pursuant to which it is operated, and the rights of Participants
hereunder shall be final and conclusive.
Sec. 6.04 Amendment of the Plan. The Board of Directors may,
at any time and from time to time, amend the Plan in any respect, except that
no amendment may (1) increase the number of shares reserved for purposes of the
Plan, and (2) allow any person who is not an Eligible Employee to become a
Participant, without the approval of the shareholders of the Company.
Sec. 6.05 Expiration and Termination of the Plan. The Plan
shall continue in effect for ten (10) years from the Effective Date, unless
terminated prior thereto pursuant to the provisions of the Plan or pursuant to
action by the Board of Directors, which shall have the right to terminate the
Plan at any time without prior notice to any Participant and without liability
to any Participant. Upon the expiration or termination of the Plan, the
balance, if any, then standing to the credit of each Participant from amounts
withheld from the Participant's compensation which had not, by such time, been
applied to the purchase of Stock shall be refunded to the Participant.
Sec. 6.06 Repurchase of Stock. The Company shall not be
required to purchase or repurchase from any Participant any of the shares of
Stock that the Participant acquired under the Plan.
Sec. 6.07 Notice. A Purchase Agreement and any notice that a
Participant files pursuant to the Plan shall be on the form prescribed by the
Committee and shall be effective only when received by the Committee. Delivery
of such forms may he made by hand or by certified mail, sent postage prepaid,
to StaffMark, Inc. 302 East Millsap Road, Fayetteville, AR 72703 Attention:
Employee Stock Purchase Plan Administrator. Delivery by any other mechanism
shall be deemed effective at the option and discretion of the Committee.
Sec. 6.08 Government Regulation. The Company's obligation to
sell and to deliver the Stock under the Plan is at all times subject to all
approvals of any governmental authority required in connection with the
authorization, issuance, sale or delivery of such Stock.
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<PAGE> 12
Sec. 6.09 Headings, Captions, Gender. The headings and
captions herein are for convenience of reference only and shall not be
considered as part of the text. The masculine shall include the feminine, and
vice versa.
Sec. 6.10 Severability of Provisions, Prevailing Law. The
provisions of the Plan shall be deemed severable. In the event any such
provision is determined to be unlawful or unenforceable by a court of competent
jurisdiction or by reason of a change in an applicable statute, the Plan shall
continue to exist as though such provision had never been included therein (or,
in the case of a change in an applicable statute, had been deleted as of the
date of such change). The Plan shall be governed by the laws of the State of
Delaware to the extent such laws are not in conflict with, or superseded by,
federal law.
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<PAGE> 1
Exhibit 5.1
June 19, 1997
StaffMark, Inc.
302 East Millsap Road
Fayetteville, AR 72703
Re: Registration Statement on Form S-8 Relating to
Employee Stock Purchase Plan
Dear Sir or Madam:
We have acted as counsel to StaffMark, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), relating to the offering of up to 300,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), which
may be issued pursuant to the Company's Employee Stock Purchase Plan ("ESPP").
We have examined such records, documents, statutes and decisions as we have
deemed relevant in rendering this opinion.
In our opinion, the shares of the Company's Common Stock that
may be issued in accordance with the terms of the ESPP will be, when issued in
accordance with the terms of the ESPP, validly issued, fully paid and
nonassessable shares of the Common Stock of the Company.
We hereby consent to the use of this opinion as Exhibit 5.1 to
the Registration Statement. In giving such opinion, we do not thereby admit
that we are acting within the category of persons whose consent is required
under Section 7 of the Act or the rules or regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ MORGAN, LEWIS & BOCKIUS LLP
Morgan, Lewis & Bockius LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Registration Statement of StaffMark, Inc. on Form S-8 (to be
filed on or around June 20, 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 19, 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 20, 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 19, 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 20, 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.
Raleigh, North Carolina,
June 19, 1997
/s/ ARTHUR ANDERSEN LLP
------------------------
ARTHUR ANDERSEN LLP
