<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 22, 1999
REGISTRATION STATEMENT NO. 333-
===============================================================================
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)
ARKANSAS 71-0788538
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
234 EAST MILLSAP ROAD
FAYETTEVILLE, ARKANSAS 72703
(Address of Principal Executive Offices)
STAFFMARK, INC.
1999 U.K. SHARESAVE PLAN
(Full Title of Plan)
GORDON Y. ALLISON, ESQ.
EXECUTIVE VICE PRESIDENT -- GENERAL COUNSEL
STAFFMARK, INC.
234 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:
FRED M. PERKINS III, ESQ.
WRIGHT, LINDSEY & JENNINGS LLP
200 WEST CAPITOL AVENUE, SUITE 2200
LITTLE ROCK, ARKANSAS 72201
(501) 371-0808
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER MAXIMUM AGGREGATE REGISTRATION FEE
SHARE OFFERING PRICE
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<S> <C> <C> <C> <C>
Common Stock, 300,000 Shares 7.31(1) $2,193,000(2) $578.95(3)
$.01 par value
- --------------------------------------------------------------------------------------------------------------------
(1) Each share being registered may be issued at not less than 85% of the fair market value of a share of Common Stock at the time a
sharesave contract is entered into under the Plan.
(2) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) and (h) and based on the average of
the high and low prices of a share of Common Stock as reported on the Nasdaq National Market on December 17, 1999.
(3) This Registration Statement also covers any additional shares of common stock which became issuable by reason of any stock
dividend, stock split, recapitalization or similar transaction.
===================================================================================================================
</TABLE>
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PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required to be included in
Part I of this Registration Statement will be given or sent to all persons who
participate in the StaffMark, Inc. 1999 U.K. Sharesave Plan as specified by Rule
428 under the Securities Act of 1933, as amended.
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, filed by StaffMark, Inc. (the "Company"), with
the Securities & 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, 1998;
(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 Bylaws 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
<PAGE> 3
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.
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 into
indemnification agreements with its directors pursuant to which it has agreed 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.
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:
Exhibit No. Exhibit
4.1 Certificate of Incorporation of StaffMark, Inc.(1)
4.2 Certificate of Amendment of Certificate of Incorporation of
StaffMark, Inc.(1)
4.3 Certificate of Amendment of Certificate of Incorporation.(2)
4.4 Amended and Restated Bylaws of the Company (3)
4.5 Form of certificate evidencing ownership of Common Stock of the
Company(1)
4.6 StaffMark, Inc. 1999 U.K. Sharesave Plan
5.1 Opinion of Gordon Y. Allison, Esq.
- ----------------
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 (File No. 333-7513).
(2) Incorporated by reference from Exhibit 3.2 to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998.
(3) Incorporated by reference from Exhibit 3.5 to the Company's Quarterly
Report on Form 10-Q for the period ended June 30, 1999.
3
<PAGE> 4
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Gordon Y. Allison, Esq. (included as part of Exhibit 5)
24.1 Powers of Attorney (included as part of signature page)
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
section13 or section15(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 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
4
<PAGE> 5
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) 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 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.
5
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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 December 20,
1999.
STAFFMARK, INC.
By: /s/ CLETE T. BREWER
------------------------------
Clete T. Brewer
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, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him and in his 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.
December 20, 1999 By: /s/ CLETE T. BREWER
-----------------------------------
Clete T. Brewer, Chairman, Chief
Executive Officer and Director
December 20, 1999 By: /s/ W. DAVID BARTHOLOMEW
-----------------------------------
W. David Bartholomew, President
- Commercial
Staffing Division and Director
December 20, 1999 By: /s/ STEVEN E. SCHULTE
-----------------------------------
Steven E. Schulte, Executive Vice
President - Administration and
Director
December 20, 1999 By: /s/ JANICE BLETHEN
-----------------------------------
Janice Blethen, President -
Clinical Trials Support Services
and Director
6
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December 20, 1999 By: /s/ STEPHEN R. BOVA
-----------------------------------
Stephen R. Bova, President, Chief
Operating Officer and Director
December 20, 1999 By: /s/ WILLIAM J. LYNCH
-----------------------------------
William J. Lynch, Director
December 20, 1999 By: /s/ R. CLAYTON MCWHORTER
-----------------------------------
R. Clayton McWhorter, Director
December 20, 1999 By: /s/ CHARLES A. SANDERS, M.D.
-----------------------------------
Charles A. Sanders, M.D., Director
December 20, 1999 By: /s/ BOB L. MARTIN
-----------------------------------
Bob L. Martin, Director
December 20, 1999 By: /s/ TERRY C. BELLORA
-----------------------------------
Terry C. Bellora, Chief Financial
Officer (Principal Financial
Officer)
7
<PAGE> 8
INDEX TO EXHIBITS
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Exhibit No. Exhibit
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4.1 Certificate of Incorporation of StaffMark, Inc.(1)
4.2 Certificate of Amendment of Certificate of Incorporation of
StaffMark, Inc.(1)
4.3 Certificate of Amendment of Certificate of Incorporation.(2)
4.4 Amended and Restated Bylaws of the Company (3)
4.5 Form of certificate evidencing ownership of Common Stock of the
Company(1)
4.6 StaffMark, Inc. 1999 U.K. Sharesave Plan
5.1 Opinion of Gordon Y. Allison, Esq.
23.1 Consent of Arthur Andersen LLP
23.4 Consent of Gordon Y. Allison, Esq. (included as part of Exhibit 5)
24.1 Powers of Attorney (included as part of signature page)
</TABLE>
- ----------------
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 (File No. 333-7513).
(2) Incorporated by reference from Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998.
(3) Incorporated by reference from Exhibit 3.5 to the Company's Quarterly Report
on Form 10-Q for the period ended June 30, 1999.
<PAGE> 1
EXHIBIT 4.6
RULES OF THE
STAFFMARK, INC
1999 U.K SHARESAVE PLAN
ADOPTED BY THE COMPANY ON [ ] 1999
APPROVED BY THE INLAND REVENUE ON [ ] 1999 UNDER REFERENCE SRS
ARTHUR ANDERSEN
1 SURREY STREET
LONDON WC2R 2PS
TEL: 0171 438 3000
<PAGE> 2
CONTENTS
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PAGE
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1. Definitions 1
2. Application for Options 6
3. Scaling down 8
4. Grant of Options 9
5. No consideration for grant of Options 10
6. Rights of exercise and lapse of Options 10
7. Takeover, reconstruction and amalgamation, and winding-up 13
8. Manner of exercise 15
9. Issue or transfer of Shares 16
10. Adjustments 16
11. Administration 17
12. Alterations 18
13. General 19
</TABLE>
<PAGE> 3
RULES OF THE STAFFMARK, INC
1999 U.K. SHARESAVE PLAN
1. DEFINITIONS
1.1 In this Plan, the following words and expressions shall have, where the
context so admits, the meanings set forth below:-
"APPROPRIATE PERIOD" the meaning given by Paragraph 15(2)
of Schedule 9 to the Taxes Act;
"ASSOCIATED COMPANY" in relation to the Company:-
(A) any company which has Control of
the Company;
(B) any company which is under the
Control of the Company or any
company referred to in (A)
above;
"AUDITORS" the auditors of the Company for the
time being or in the event of there
being joint auditors such one of
them as the Board shall select;
"BOARD" the board of directors for the time
being of the Company or a duly
authorised committee thereof;
"BONUS" any sum by way of terminal bonus
payable at the end of a period of
three years after the commencement
of a Savings Contract being the
additional payment made when
repaying contributions made under
such a Savings Contract;
"BONUS DATE" in relation to any Option granted to
a Participant, the earliest time
when the Bonus is payable under the
Savings Contract entered into by
him;
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"CLOSE COMPANY" a close company as defined in
section 414(1) of the Taxes Act, as
varied by Paragraph 8 of Schedule 9
to the Taxes Act;
"THE COMPANY" StaffMark, Inc;
"CONTROL" has the meaning given by section 840
of the Taxes Act;
"DATE OF GRANT" the date on which an Option is
granted;
"DATE OF INVITATION" the date on which the Board invites
applications for Options;
"DEALING DAY" any day on which NASDAQ is open for
the transaction of business;
"ELIGIBLE EMPLOYEE" (A) any individual who at the Date
of Grant:-
(1) is an executive director
on terms which require him
to devote not less than 25
hours per week (excluding
meal breaks) to his duties
or an employee of a
Participating Company; and
(2) is chargeable to tax in
respect of his office or
employment under Case I of
Schedule E of the Taxes
Act; and
(3) has been such an executive
director or employee of a
Participating Company for
such qualifying period (if
any) (being a period
commencing not earlier
than 5 years prior to the
Date of Grant) as the
Board may determine; or
(B) any other individual who is
nominated by the Board as an
executive director or employee
of a
2
<PAGE> 5
Participating Company (or is
nominated as a member of a
category of such executive
directors and employees),
but in all cases excluding any
person who is prohibited from
participating by reason of the
provisions of Paragraph 8 of
Schedule 9 to the Taxes Act;
"EMPLOYEES' SHARE PLAN" the meaning given by Section 743 of
the United Kingdom Companies Act
1985;
"EXERCISE PRICE" the total amount payable in relation
to the exercise of an Option,
whether in whole or in part, being
an amount equal to the relevant
Option Price multiplied by the
number of Shares in respect of which
the Option is exercised;
"GRANT PERIOD" the period of 42 days commencing on
any day determined by the Board of
the following:
(A) the day on which the Plan is
approved by the Inland Revenue;
(B) the day immediately following
the day on which the Company
makes an announcement of its
results for the last preceding
financial period;
(C) the day on which the Board
resolves that exceptional
circumstances exist which
justify the grant of Options;
(D) any day on which any change to
the legislation affecting
savings-related share option
Plans approved by the Inland
Revenue under the Taxes Act is
proposed or made; or
(E) any day on which a new Savings
Contract prospectus is announced
or takes effect.
3
<PAGE> 6
"MARKET VALUE" in relation to a Share on any
day its market value determined in
accordance with Part VIII of the
United Kingdom Taxation of
Chargeable Gains Act 1992 and agreed
in advance with the Shares Valuation
Division of the Inland Revenue;
"MATERIAL INTEREST" the meaning given by Section 187(3)
of the Taxes Act;
"MAXIMUM CONTRIBUTION" the lesser of:
(A) such maximum monthly
contribution as may be permitted
pursuant to Paragraph 24 of
Schedule 9 to the Taxes Act; or
(B) such maximum monthly
contribution as may be
determined from time to time by
the Board;
"MEMBER OF A CONSORTIUM" the meaning given by Section 187(7)
of the Taxes Act;
"MONTHLY CONTRIBUTIONS" monthly contributions agreed to be
paid by a Participant under his
Savings Contract;
"NASDAQ" National Association of Securities
Dealers, Inc's Automated Quotation
System;
"OPTION" a right to acquire Shares under the
Plan which is either subsisting or
is proposed to be granted;
"OPTION PRICE" the price per Share, as determined
by the Board, at which an Eligible
Employee may acquire Shares upon the
exercise of an Option granted to him
being not less than the higher of:
(A) 85 per cent. of the Market Value
of a Share on the Dealing Day
immediately preceding the Date
of Invitation or 85 per cent. of
the Market Value at such other
time or times as may be
4
<PAGE> 7
previously agreed in writing
with the Inland Revenue); and
(B) if the Shares are to be
subscribed, their nominal value;
expressed in pounds Sterling but
subject to any adjustment pursuant
to Rule 10. For the purpose of
calculating the Option Price, US$
will be converted into pounds
Sterling at the mid-market spot rate
at the close of business published
by the Financial Times on the Date
of Invitation, or if this is not a
Dealing Day, the mid-market spot
rate at the close of business
published in the Financial Times on
the next preceding Dealing Day;
"PARTICIPANT" any Eligible Employee or former
Eligible Employee to whom an Option
has been granted, or (where the
context so admits) the personal
representative(s) of any such
person;
"PARTICIPATING COMPANY" (A) the Company; and
(B) any other company which is under
the Control of the Company, is a
Subsidiary of the Company and
which has been expressly
designated by the Board as being
a Participating Company;
"PENSIONABLE AGE" age 60;
"PLAN" the StaffMark, Inc 1999 U.K.
Sharesave Plan in its present form
or as from time to time amended in
accordance with the provisions
hereof;
"SAVINGS CONTRACT" a contract under a certified
contractual savings Plan (within the
meaning of Section 326 of the Taxes
Act)
5
<PAGE> 8
approved by the Inland Revenue for
the purpose of Schedule 9 to that
Act;
"SHARE" a fully paid ordinary share of the
Company which satisfies the
requirements of paragraphs 10 to 14
of Schedule 9 to the Taxes Act;
"SUBSIDIARY" the meaning given by Section 736 of
the Companies Act 1985; and
"TAXES ACT" the United Kingdom Income and
Corporation Taxes Act 1988.
1.2 Words and expressions not otherwise defined herein have the same
meaning they have in the Taxes Act.
1.3 Where the context so admits or requires words importing the singular
shall include the plural and vice versa and words importing the
masculine shall include the feminine.
1.4 References in the rules of the Plan to any statutory provisions are to
those provisions as amended, extended or re-enacted from time to time
and shall include any regulations made thereunder. The United Kingdom
Interpretation Act 1978 shall apply to these rules mutatis mutandis as
if they were an Act of Parliament.
1.5 The headings in the rules of the Plan are for the sake of convenience
only and should be ignored when construing the rules.
2. APPLICATION FOR OPTIONS
2.1 The Board may during any Grant Period, invite applications for Options
at the Option Price from Eligible Employees. Any such invitation shall
be in writing and shall include details of:
2.1.1 eligibility;
2.1.2 the Option Price;
6
<PAGE> 9
2.1.3 the date by which applications made pursuant to Rule 2.3 must
be received, (being neither earlier than 14 days nor later
than 25 days after the Date of Invitation); and
2.1.4 whether, for the purposes of determining the number of Shares
over which an Option is to be granted, Eligible Employees may
elect for the repayment under the Savings Contract to be
taken:-
2.1.4.1 as including the Bonus,
2.1.4.2 as not including a bonus,
2.1.4.3 the maximum permitted Monthly Contribution
and the Board may determine and include in the invitation details of
the maximum number of Shares over which Options are to be granted in
that Grant Period.
2.2 Each application for an Option must incorporate or be accompanied by a
proposal for a Savings Contract.
2.3 An application for an Option shall be in writing in such form as the
Board may from time to time prescribe save that it shall provide for
the applicant to state:-
2.3.1 the Monthly Contribution (being a multiple of (pound)1 and not
less than (pound)5) which he wishes to make under the related
Savings Contract;
2.3.2 that his proposed Monthly Contributions (when taken together
with any Monthly Contribution he makes under any other Savings
Contract) will not exceed the Maximum Contribution;
2.3.3 if (as contemplated by Rule 2.1. 4) Eligible Employees may
elect for the repayment under the Savings Contract to be taken
as including the Bonus, or as not including a bonus, his
election in that respect.
2.4 Each application for an Option shall provide that, in the event of
excess applications, each application shall be deemed to have been
modified or withdrawn in accordance with the steps taken by the Board
to scale down applications pursuant to Rule 3.
7
<PAGE> 10
2.5 Proposals for a Savings Contract shall be limited to such bank or
building society as the Board may designate.
2.6 Each application shall be deemed to be for an Option over the largest
whole number of Shares which can be acquired at the Option Price with
the expected repayment (including any Bonus elected under Rule 2.3.3)
under the related Savings Contract at the appropriate Bonus Date.
2.7 The grant of an Option shall be subject to obtaining any approval or
consent required under any applicable laws, regulations of governmental
authority and the requirements of NASDAQ and any other securities
exchange on which the Shares are traded.
3. SCALING DOWN
3.1 If valid applications are received for a total number of Shares in
excess of any maximum number of Shares determined by the Board pursuant
to Rule 2.1 or any limitation under Rule 5, the Board shall scale down
applications by taking, at its absolute discretion, one of the
following steps until the number of Shares available equals or exceeds
the number of Shares applied for (provided always that in reducing the
number of Shares applied for, any adjustments shall ensure that an
Eligible Employee's Monthly Contribution remains a multiple of
(pound)1):
3.1.1 by treating any election, under Rule 2.3.3, for the Bonus as
an election for no bonus and then , so far as necessary, by
reducing the proposed Monthly Contributions pro rata to the
excess over (pound)5 and then, so far as necessary, selecting
by lot; or
3.1.2 by reducing the proposed Monthly Contributions pro rata to the
excess over (pound)5 and then, so far as necessary selecting
by lot.
3.2 If the number of Shares available is insufficient to enable an Option
based on Monthly Contributions of (pound)5 a month to be granted to
each Eligible Employee making a valid application, the Board may, as an
alternative to selecting by lot, determine in its absolute discretion
that no Options shall be granted.
3.3 If the Board so determines, the provisions in Rule 3.1.1 and 3.1.2 may
be modified or applied in any manner as may be agreed in advance with
the Inland Revenue.
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<PAGE> 11
3.4 If in applying the scaling down provisions contained in this Rule 3,
Options cannot be granted within the 30 day period referred to in Rule
4.2 below, the Grantor may extend that period by 12 days regardless of
the expiry of the relevant Grant Period.
4. GRANT OF OPTIONS
4.1 No Option shall be granted to any person if:
4.1.1 at the Date of Grant that person shall have ceased to be an
Eligible Employee; or
4.1.2 that person has or has had at any time within the 12 month
period preceding the Date of Grant a Material Interest in the
issued ordinary share capital of a Close Company which is the
Company or a company which has Control of the Company or is a
Member of a Consortium which owns the Company.
4.2 Within 30 days of the first Dealing Day (if any) by reference to which
the Option Price was fixed (which date shall be within a Grant Period)
the Board may, subject to Rule 3 above, grant to each Eligible Employee
who has submitted a valid application an Option in respect of the
greatest number of Shares which may be acquired with the proceeds of
his Savings Contract.
4.3 The Board shall issue to each Participant an option certificate in such
form (not inconsistent with the provisions of the Plan) as the Board
may from time to time prescribe. Each such certificate shall specify
the Date of Grant of the Option, the Bonus Date and the Option Price.
4.4 Except as otherwise provided in these Rules, every Option shall be
personal to the Participant to whom it is granted and shall not be
transferable.
5. NO CONSIDERATION FOR GRANT OF OPTION
No amount shall be paid in respect of the grant of an Option.
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6. RIGHTS OF EXERCISE AND LAPSE OF OPTIONS
6.1 6.1.1 Save as provided in Rules 6.2, 6.3, 6.4 and 7, an Option may
not be exercised earlier than the Bonus Date under the
relevant Savings Contract.
6.1.2 Save as provided in Rule 6.2, an Option shall not be
exercisable later than six months after the Bonus Date under
the relevant Savings Contract.
6.1.3 Save as provided in Rules 6.1.4, 6.2, 6.3 and 7, an Option may
only be exercised by a Participant whilst he is a director or
employee of a Participating Company or a company over which
the Company has Control.
6.1.4 If, at the Bonus Date, a Participant holds an office or
employment in a company which is not a Participating Company
but which is an associated company (within the meaning this
expression bears in Paragraph 21(1) (f) of Schedule 9 to the
Taxes Act) or a company over which the Company has Control,
such Option may be exercised within six months of the Bonus
Date.
6.1.5 An Option may not be exercised by a Participant if he has or
has had at any time within the 12 month period preceding the
date of exercise a Material Interest in the issued ordinary
share capital of a Close Company which is the Company or a
company which has Control of the Company or is a Member of a
Consortium which owns the Company, nor may an Option be
exercised by the personal representatives of the Participant
if the Participant had such a Material Interest at the date of
his death.
6.2 An Option may be exercised by the personal representatives of a
deceased Participant:-
6.2.1 within 12 months following the date of his death if such death
occurs before the Bonus Date; or
6.2.2 within 12 months following the Bonus Date in the event of his
death within six months after the Bonus Date.
6.3 Subject to Rule 6.1.2 an Option may be exercised by a Participant
within six months following his ceasing to hold the office or
employment by virtue of which he is eligible to participate in the Plan
by reason of:-
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6.3.1 injury, disability, redundancy within the meaning of the
Employment Rights Act 1996 or the Contracts of Employment and
Redundancy Payments Act (Northern Ireland) 1965, or retirement
on reaching Pensionable Age or at any other age at which he is
bound to retire in accordance with the terms of his contract
of employment; or
6.3.2 his office or employment being in a company of which the
Company ceases to have Control; or
6.3.3 the transfer or sale of the undertaking or part-undertaking in
which he is employed to a person who is neither an Associated
Company nor a company under the Control of the Company;
6.3.4 retirement at any age at which he is entitled to retire in
accordance with the terms of his contract of employment (other
than at Pensionable Age or any age at which he is bound to
retire), early retirement with the agreement of his employer,
or pregnancy, in each case only if such cessation of office or
employment is more than 3 years after the Date of Grant of the
Option; or
6.3.5 cessation of employment in circumstances other than those
mentioned in 6.3.1 to 6.3.4 above, after the Bonus Date.
For the purposes of the Plan, a woman who leaves employment due to
pregnancy will be regarded as having left the employment on the
earliest of the date she notifies her employer of her intention not to
return, the last day of the 29 week period of confinement and any other
date specified by the terms of her office or employment with her
employer.
6.4 Subject to Rule 6.1.2 an Option may be exercised by a Participant
within six months following the date he reaches Pensionable Age if he
continues after that date to hold the office or employment by virtue of
which he is eligible to participate in the Plan.
6.5 No person shall be treated for the purposes of Rule 6.3 as ceasing to
hold an office or employment by virtue of which that person is eligible
to participate in the Plan until that person ceases to hold any office
or employment in the Company, any Associated Company or any company of
which the Company has Control.
6.6 Options shall lapse upon the occurrence of the earliest of the
following events:
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6.6.1 subject to 6.6.2 below, six months after the Bonus Date;
6.6.2 where the Participant dies before the Bonus Date, 12 months
after the date of death, and where the Participant dies in the
period of six months after the Bonus Date, 12 months after the
Bonus Date;
6.6.3 the expiry of any of the six month periods specified in Rule
6.3.1 to 6.3.5 save that if at the time any such applicable
periods expire time is running under the 12 month periods
specified in Rule 6.2, the Option shall not lapse by reason of
this sub-rule 6.6.3 until the expiry of the relevant 12 month
period in Rule 6.2;
6.6.4 the expiry of any of the periods specified in Rules 7.1, 7.3
and 7.4 save where an Option is released in consideration of
the grant of a New Option (during one of the periods specified
in Rules 7.1, 7.3 or 7.4) pursuant to Rule 7.5;
6.6.5 the Participant ceasing to hold an office or employment with
the Company or any Associated Company in any circumstances
other than:
6.6.5.1 where the cessation of office or employment arises
on any of the grounds specified in Rules 6.2 or 6.3;
or
6.6.5.2 where the cessation of office or employment arises
on any ground whatsoever during any of the periods
specified in Rule 7 save where an Option is released
in consideration of the grant of a New Option
(during one of the periods specified in Rules 7.1,
7.3 or 7.4) pursuant to Rule 7.5;
6.6.6 the passing of an effective resolution, or the making of an
order by the Court, for the winding-up of the Company;
6.6.7 the Participant being deprived of the legal or beneficial
ownership of the Option by operation of law, or doing anything
or omitting to do anything which causes him to be so deprived
or declared bankrupt; or
6.6.8 where before an Option has become capable of being exercised,
the Participant gives notice that he intends to stop paying
Monthly
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<PAGE> 15
Contributions, or is deemed under the terms of the Savings
Contract to have given such notice, or makes an application
for repayment of the Monthly Contributions.
7. TAKEOVER, RECONSTRUCTIONS AND WINDING UP
7.1 Subject to Rule 7.3 below, if any person obtains Control of the Company
as a result of making, either:-
7.1.1 a general offer to acquire the whole of the issued ordinary
share capital of the Company (which is made on a condition
such that if it is satisfied the person making the offer will
have Control of the Company); or
7.1.2 a general offer to acquire all the shares in the Company which
are of the same class as the Shares,
an Option may be exercised within six months of the time when the
person making the offer has obtained Control of the Company and any
condition subject to which the offer is made has been satisfied.
7.2 For the purpose of Rule 7.1 a person shall be deemed to have obtained
Control of the Company if he and others acting in concert (as defined
by the City Code on Takeovers and Mergers) with him have together
obtained Control of it.
7.3 If any person becomes bound or entitled to acquire Shares under
sections 428 to 430F of the United Kingdom Companies Act 1985 (or the
equivalent , if any, in the US) an Option may be exercised at any time
when that person remains so bound or entitled.
7.4 If under section 425 of the United Kingdom Companies Act 1985 (or the
equivalent, if any, in the US) it is proposed that the Court sanctions
a compromise or arrangement proposed for the purposes of or in
connection with a Plan for the reconstruction of the Company or its
amalgamation with any other company or companies or if the Company
passes a resolution for the voluntary winding up of the Company, the
Company shall give notice thereof to all Participants and the
Participant may then exercise the Option within six months from the
date of such
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<PAGE> 16
notice and thereafter the Option shall lapse. After exercising the
Option the Participant shall transfer or otherwise deal with the Shares
issued to him so as to place him in the same position (so far as
possible) as would have been the case if such shares had been subject
to such compromise or arrangement.
7.5 If Options become exercisable pursuant to any of Rules 7.1, 7.3 or 7.4
above, any Participant may at any time within the Appropriate Period,
by agreement with the relevant company, release any Option which has
not lapsed ("the Old Option") in consideration of the grant to him of
an Option ("the New Option") which (for the purposes of Paragraph 15 of
Schedule 9 to the Taxes Act) is equivalent to the Old Option but
relates to shares in a different company (whether the company which has
obtained Control of the Company itself or some other company falling
within Paragraph 10(b) or (c) of Schedule 9 to the Taxes Act).
7.6 The New Option shall not be regarded for the purposes of Rule 7.6 as
equivalent to the Old Option unless the conditions set out in Paragraph
15(3) of Schedule 9 to the Taxes Act are satisfied but so that the
provisions of the Plan shall for this purpose be construed as if:-
7.6.1 the New Option were an option granted under the Plan at the
same time as the Old Option; and
7.6.2 except for the purpose of the definition of "Participating
Company" in Rule 1, the reference to StaffMark, Inc in the
definition of "the Company" in Rule 1 were a reference to the
different company mentioned in Rule 7.6.
8. MANNER OF EXERCISE
8.1 An Option may only be exercised during the periods specified in Rules 6
and 7 and only with monies not exceeding the amount of repayment
(including any interest and bonus) under the Savings Contract as at the
date of such exercise. For this purpose, no account shall be taken of
such part (if any) of the repayment of any Monthly Contribution, the
due date for the payment of which under the Savings Contract arises
after the date of the repayment.
8.2 Exercise shall be by the delivery to the Company Secretary or other
duly appointed agent of the Company, of an option certificate or
certificates covering at least all the Shares over which the Option is
then to be exercised, with the notice of exercise in
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<PAGE> 17
the prescribed form duly completed and signed by the Participant (or by
his duly authorised agent) together with any remittance for the
Exercise Price payable to the Company or authority to the Company to
withdraw and apply monies from the Savings Contract to acquire the
Shares over which the Option is to be exercised.
8.3 The effective date of exercise shall be the date of delivery of the
notice of exercise. For the purposes of this Plan a notice of exercise
shall be deemed to be delivered when it is received by the Company.
8.4 The remittance of the Exercise Price referred to in Rule 8.2 above may
be paid at the discretion of the Participant either in US$ or in pounds
Sterling PROVIDED THAT if paid in US$ the Exercise Price shall be
converted into pounds Sterling at the mid-market spot rate at the close
of business published by the Financial Times on the date immediately
preceding the date of exercise or if this is not a Dealing Day, the
mid-market spot rate at close of business published in the Financial
Times on the last preceding Dealing Day.
9. ISSUE OR TRANSFER OF SHARES
9.1 Subject to Rule 9.3, Shares to be issued pursuant to the exercise of an
Option shall be allotted to the Participant (or his nominee) within 28
days following the date of effective exercise of the Option.
9.2 Subject to Rule 9.4, the Board shall procure the transfer of any Shares
to be transferred to a Participant (or his nominee) pursuant to the
exercise of an Option within 28 days following the date of effective
exercise of the Option.
9.3 The allotment or transfer of any Shares under the Plan shall be subject
to obtaining any such approval or consent as is mentioned in Rule 2.7
above.
9.4 Shares issued pursuant to the Plan shall rank pari passu in all
respects with the Shares then in issue, except that they shall not rank
for any rights attaching to Shares by reference to a record date
preceding the date of exercise.
9.5 Shares transferred pursuant to the Plan shall not be entitled to any
rights attaching to Shares by reference to a record date preceding the
date of exercise.
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9.6 If and so long as the Shares are listed on the NASDAQ, the Company
shall apply for a listing for any Shares issued pursuant to the Plan as
soon as practicable after the allotment thereof.
10. ADJUSTMENTS
10.1 The number of Shares over which an Option is granted and the Option
Price thereof (and where an Option has been exercised but no Shares
have been allotted or transferred pursuant to such exercise, the number
of Shares which may be so allotted or transferred and the price at
which they may be acquired) shall be adjusted in such manner as the
Board shall determine following any capitalisation issue, any offer or
invitation made by way of rights, subdivision, consolidation, reduction
or other variation in the share capital of the Company which in the
opinion of the Auditors justifies such an adjustment, to the intent
that (as nearly as may be without involving fractions of a Share or an
Option Price calculated to more than two decimal places) the aggregate
Exercise Price payable in respect of an Option shall remain unchanged
provided that no adjustment shall be made pursuant to this Rule 10.1
shall be made without the prior approval of the Inland Revenue (so long
as the Plan is approved by the Inland Revenue).
10.2 Apart from pursuant to this Rule 10.2, no adjustment under Rule 10.1
above may have the effect of reducing the Option Price to less than the
nominal value of a Share. Where an Option subsists over both issued and
unissued Shares any such adjustment may only be made if the reduction
of the Option Price of Options over both issued and unissued Shares can
be made to the same extent (unless the same is permitted under the
Articles of Incorporation of the Company and under the applicable laws
that govern the operation of the Company).
10.3 The Board may take such steps as it may consider necessary to notify
Participants of any adjustment made under this Rule 10 and to call in,
cancel, endorse, issue or reissue any option certificate consequent
upon such adjustment.
11. ADMINISTRATION
11.1 Any notice or other communication under or in connection with the Plan
may be given by personal delivery or by sending the same by post, in
the case of a company to its registered office and in the case of an
individual to his last known address or, where he is a director or
employee of a Participating Company or an Associated
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Company, either to his last known address or to the address of the
place of business at which he performs the whole or substantially the
whole of the duties of his office or employment, and where a notice or
other communication is given by post, it shall be deemed to have been
received 72 hours after it was put into the post properly addressed and
stamped.
11.2 The Company may distribute to Participants copies of any notice or
document normally sent by the Company to the holders of Shares.
11.3 If any option certificate shall be worn out, defaced or lost, it may be
replaced on such evidence being provided as the Board may require.
11.4 The Company shall at all times keep available for allotment unissued
Shares at least sufficient to satisfy all Options under which Shares
may be subscribed or shall procure that sufficient Shares are available
for transfer to satisfy all Options under which Shares may be acquired.
11.5 The decision of the Board in any dispute relating to an Option or the
due exercise thereof or any other matter in respect of the Plan shall
be final and conclusive subject to the certification of the Auditors
having been obtained when so required by Rule 10.1.
11.6 The costs of introducing and administering the Plan shall be borne by
the Company.
11.7 Any expenses involved in any issue of Shares in the name of any
Participant or his personal representative(s) or nominee(s) shall be
payable by the Company and any expenses involved in the transfer of
Shares into the name of any Participant or his personal
representative(s) or nominee(s) shall be payable by the Company.
12. ALTERATIONS
12.1 Subject to Rule 12.2 and 12.4, the Board may at any time alter or add
to all or any of the provisions of the Plan in any respect, provided
that if an alteration or addition is made at a time when the Plan is
approved by the Inland Revenue under Schedule 9 to the Taxes Act it
shall not have effect until it has been approved by the Inland Revenue.
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12.2 No alteration or addition shall be made under Rule 12.1 which would
abrogate or adversely affect the subsisting rights of a Participant,
unless it is made:-
12.2.1 with the consent in writing of such number of Participants as
hold Options under the Plan to acquire 75 per cent. of the
Shares which would be issued or transferred if all Options
granted and subsisting under the Plan were exercised; or
12.2.2 by a resolution at a meeting of Participants passed by not
less than 75 per cent. of the Participants who attend and vote
either in person or by proxy,
and for the purposes of this Rule 12.2 the provisions of the Articles
of Incorporation of the Company relating to shareholder meetings shall
apply mutatis mutandis.
12.3 Notwithstanding any other provision of the Plan other than Rule 12.1
the Board may, in respect of Options granted to Eligible Employees who
are or who may become subject to taxation outside the United Kingdom on
their remuneration amend or add to the provisions of the Plan and the
terms of Options as it considers necessary or desirable to take account
of or to mitigate or to comply with relevant overseas taxation,
securities or exchange control laws provided that the terms of Options
granted to such Eligible Employees are not overall more favourable than
the terms of Options granted to other Eligible Employees.
12.4 As soon as reasonably practicable after making any alteration or
addition under Rule 12.1 the Board shall give written notice thereof to
any Participant affected thereby.
12.5 No alteration shall be made to the Plan if following the alteration the
Plan would cease to be an Employees' Share Plan.
13. GENERAL
13.1 The Plan shall terminate upon the tenth anniversary of its approval by
the Board or at any earlier time by the passing of a resolution by the
Board. Termination of the Plan shall be without prejudice to the
subsisting rights of Participants.
13.2 Nothing in the Plan shall be deemed to give any officer or employee of
any Participating company any rights to participate in the Plan. The
rights and obligations of any individual under the terms of his office
or employment with a
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Participating Company shall not be affected by his participation in the
Plan nor any right which he may have to participate under it. An
individual who participates under the Plan waives all and any rights to
compensation or damages in consequence of the termination of his office
or employment with a Participating Company for any reason whatsoever
insofar as those rights arise or may arise from his ceasing to have
rights under or to be entitled to exercise any Option under the Plan as
a result of such termination or from the loss or diminution in value of
such rights or entitlements. The benefit of this Rule 13.2 is given for
the Company for itself and as trustee for all its Subsidiaries. To the
extent that the Rule 13.2 benefits anybody corporate which is not a
party to this agreement the benefit shall be held on trust by the
Company for that body corporate.
13.3 The Company may require any Subsidiary to enter into such agreement or
agreements as it shall deem necessary to oblige such Subsidiary to
enable any person to acquire shares for the purpose of this Plan for
the benefit of such Subsidiary's employees.
13.4 These Rules shall be governed by and construed in accordance with the
laws of England.
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EXHIBIT 5.1
December 20, 1999
StaffMark, Inc.
234 East Millsap Road
Fayetteville, Arkansas 72703
RE: Registration Statement on Form S-8 regarding 1999 U.K. Sharesave Plan
- ------------------------------------------------------------------------------
Ladies and Gentlemen:
I 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 300,000 shares (the "Shares") of the
Company's common stock, $0.01 par value per share, to be issued pursuant to the
StaffMark, Inc. 1999 U.K. Sharesave Plan (the "Plan").
In so acting I have examined originals, or copies certified or
otherwise identified to my satisfaction, of (a) the Amended and Restated
Certificate of Incorporation of the Company, (b) the Amended and Restated Bylaws
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. I 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, I am of the opinion that the Shares, when
issued in accordance with the Plan, will be duly authorized, validly issued,
fully paid and non-assessable.
I am expressing these opinions as a member of the Bar of the State of
Arkansas and the District of Columbia and express no opinion as to any other law
other than the general corporation law of the State of Delaware.
I consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ GORDON Y. ALLISON, ESQ.
Gordon Y. Allison, Esq.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference into this Registration Statement of StaffMark, Inc. on Form S-8 (to be
filed on or around December 21, 1999) of our report dated January 29, 1999,
appearing on page 22 of the StaffMark, Inc. Annual Report on Form 10-K as for
the year ended December 31, 1998, and to all references to our Firm included in
this Registration Statement.
Little Rock, Arkansas
December 20, 1999
/s/ ARTHUR ANDERSEN LLP
----------------------------
Arthur Andersen LLP
