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As filed with the Securities and Exchange Commission on June 12, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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.
STOCK ELECTION PLAN FOR NON-EMPLOYEE DIRECTORS
(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)
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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 25,000 $37.28(1) $932,000(1) $275.00(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 11,
1998, reported on the Nasdaq National Market.
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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, 1997;
(b) The Company's Form 8-K/A filed on January 16,
1998 with respect to the Company's Form 8-K filed on November 21,
1997;
(c) The Company's Form 8-K filed on January 23,
1998 and the Form 8-K/A related thereto filed on March 16, 1998;
(d) The Company's Form 8-K filed on February 23,
1998;
(e) The Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1998;
(f) 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.
(g) 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
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.
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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 who 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 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.
The Company's Certificate of Incorporation, as amended, 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.
4.2* Certificate of Amendment of Certificate of Incorporation of the
Company.
4.3*** Certificate of Amendment of Certificate of Incorporation of the
Company.
4.4* Amended and Restated By-Laws of the Company, as amended.
4.5* Form of Certificate evidencing ownership of Common Stock of the
Company.
4.6** StaffMark, Inc. Stock Election Plan for Non-Employee Directors.
5*** Opinion of Gordon Y. Allison, Esq.
23.1*** Consent of Arthur Andersen LLP
23.2*** Consent of Gordon Y. Allison, Esq. (included as part of
Exhibit 5)
2
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24*** Power of Attorney (included as part of the signature page)
- ----------
* Incorporated herein by reference from the Exhibits to the Company's
Registration Statement on Form S-1 (File No. 333-7513).
** Incorporated herein by reference from the Exhibits to Company's
Form 10-Q (file No. 0-20971) for the quarterly period ended March
31, 1998.
*** Filed herewith.
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) (ss.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
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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
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.
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 June 12,
1998.
STAFFMARK, INC.
By: /s/ Clete T. Brewer
---------------------------------
Clete T. Brewer
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature to this registration statement
appears below hereby constitutes and appoints Clete T. Brewer, Terry C. Bellora
and Gordon Y. Allison, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution, to sign on his or her behalf
individually and in the capacity stated below and to perform any acts necessary
to be done in order to file all amendments and post-effective amendments to this
registration statement, and any and all instruments or documents filed as part
of or in connection with this registration statement or the amendments thereto
and each of the undersigned does hereby ratify and confirm all that said
attorney-in-fact and agent, or his substitutes, shall do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, as amended, this registration statement has been signed below by the
following persons in the capacities and on the dates indicated.
Name Title Date
/s/ CLETE T. BREWER President, Chief Executive June 12, 1998
- ---------------------- Officer and Director
Clete T. Brewer (Principal Executive Officer)
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<TABLE>
<S> <C> <C>
/s/ TERRY C. BELLORA Chief Financial Officer June 12, 1998
- --------------------------- (Principal Financial
Terry C. Bellora and Accounting Officer)
/s/ JERRY T. BREWER Chairman of the Board June 12, 1998
- ---------------------------
Jerry T. Brewer
/s/ W. DAVID BARTHOLOMEW Executive Vice President-- Eastern June 12, 1998
- --------------------------- Operations and Director
W. David Bartholomew
/s/ STEVEN E. SCHULTE Executive Vice President-- June 12, 1998
- --------------------------- Administration and Director
Steven E. Schulte
/s/ JOHN H. MAXWELL, JR. Executive Vice President -- June 12, 1998
- --------------------------- Medical Services and Director
John H. Maxwell, Jr.
/s/ JANICE BLETHEN Executive Vice President -- June 12, 1998
- --------------------------- Clinical Trials Support
Janice Blethen Services and Director
/s/ WILLIAM T. GREGORY General Manager -- June 12, 1998
- --------------------------- Carolina Region and Director
William T. Gregory
/s/ WILLIAM J. LYNCH Director June 12, 1998
- ---------------------------
William J. Lynch
/s/ R. CLAYTON McWHORTER Director June 12, 1998
- ---------------------------
R. Clayton McWhorter
/s/ CHARLES A. SANDERS Director June 12, 1998
- ---------------------------
Charles A. Sanders, M.D.
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
- -------- -------
4.1* Certificate of Incorporation of the Company.
4.2* Certificate of Amendment of Certificate of Incorporation of the
Company.
4.3*** Certificate of Amendment of Certificate of Incorporation of the
Company.
4.4* Amended and Restated By-Laws of the Company, as amended.
4.5* Form of Certificate evidencing ownership of Common Stock of the
Company.
4.6** StaffMark, Inc. Stock Election Plan for Non-Employee Directors.
5.1*** Opinion of Gordon Y. Allison, Esq.
23.1*** Consent of Arthur Andersen LLP
23.2*** Consent of Gordon Y. Allison, Esq. (included as part of
Exhibit 5)
24*** Power of Attorney (included as part of the signature page)
- ----------
* Incorporated herein by reference from the Exhibits to the
Company's Registration Statement on Form S-1 (File No. 333-7513).
** Incorporated herein by reference from the Exhibits to Company's
Form 10-Q (file No. 0-20971) for the quarterly period ended March
31, 1998.
*** Filed herewith.
<PAGE> 1
EXHIBIT 4.3
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
STAFFMARK, INC.
Pursuant to Section 242 of the
Delaware General Corporation Law
StaffMark, Inc., a Delaware corporation (the "Corporation"), hereby certifies
as follows:
1. The Certificate of Incorporation of the Corporation (the
"Certificate") was filed in the Office of the Secretary of State of the State
of Delaware (the "Secretary") on [March 12, 1996].
2. The Certificate was previously amended by a Certificate of Amendment
filing with the Secretary on [June 14, 1996].
3. The first paragraph of Article Four of the Certificate is hereby
amended and restated in its entirety as follows:
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is two hundred and ten million (210,000,000),
divided into two classes of which ten million (10,000,000) shares, par
value $.01 per share, shall be designated Preferred Stock (the "Preferred
Stock"), and two hundred million (200,000,000) shares, par value $.01 per
share, shall be designated Common Stock (the "Common Stock").
4. This Certificate of Amendment to the Certificate was duly adopted by
the unanimous vote of the Board of Directors and the Board of Directors duly
called an annual meeting of stockholders to, among other things, vote on such
Certificate of Amendment, and resolutions to such effect were duly recorded.
Upon notice, and in accordance with Section 222 of the Delaware General
Corporation Law, the Corporation convened an annual stockholder's meeting on
May 8, 1998, at which, among other things, this Certificate of Amendment to the
Certificate was adopted by the holders of at least a majority of the
outstanding Common Stock of the Corporation entitled to vote thereon. As a
result of the foregoing, this Certificate of Amendment to the Certificate was
duly adopted in accordance with Section 242 of the Delaware General Corporation
Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to its Certificate of Incorporation to be executed as of the 8th day
of May, 1998.
STAFFMARK, INC.
By: /s/ GORDON Y. ALLISON
---------------------------------
Gordon Y. Allison
Executive Vice President - General Counsel
<PAGE> 1
Exhibit 5.1
June 12, 1998
StaffMark, Inc.
302 East Millsap Road
Fayetteville, AR 72703
Re: Registration Statement on Form S-8 Relating to
Stock Election Plan for Non-Employee Directors
Dear Sir or Madam:
I am the Executive Vice President - General Counsel of
StaffMark, Inc., a Delaware corporation (the "Company"), and have acted as
counsel 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 25,000 shares of the Company's Common Stock, par value
$.01 per share (the "Common Stock"), which may be issued pursuant to the
Company's Stock Election Plan for Non-Employee Directors (the "Director Plan").
I have examined such records, documents, statutes and decisions as I have deemed
relevant in rendering this opinion.
In my opinion, the shares of the Company's Common Stock that
may be issued in accordance with the terms of the Director Plan will be, when
issued in accordance with the terms of the Director Plan, validly issued, fully
paid and nonassessable shares of the Common Stock of the Company.
I hereby consent to the use of this opinion as Exhibit 5.1 to
the Registration Statement. In giving such opinion, I do not thereby admit that
I am 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,
STAFFMARK, INC.
/s/ GORDON Y. ALLISON
Gordon Y. Allison, Esq.
Executive Vice President - General Counsel
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference into this Registration Statement on Form S-8 of our
report dated January 27, 1998, appearing on page 20 of the StaffMark, Inc.
Annual Report on Form 10-K for the year ended December 31, 1997, and to all
references to our firm included in this Registration Statement.
/s/ Arthur Andersen LLP
----------------------------
Arthur Andersen LLP
Little Rock, Arkansas,
June 12, 1998
7
