As filed with the Securities and Exchange Commission on April 28, 1998
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
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DATAMARK HOLDING, INC.
(Exact name of registrant as specified in its charter)
Delaware 87-0461856
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
--------------------
448 East 6400 South, Suite 400
Salt Lake City, Utah 84107
(Address of Principal Executive Offices,
including Zip Code)
AMENDED AND RESTATED DATAMARK HOLDING, INC.
INCENTIVE PLAN
(Full title of the plan)
Michael Bard Copy to:
Chief Financial Officer RICHARD G. BROWN
Datamark Holding, Inc. Parr, Waddoups, Brown, Gee & Loveless
448 East 6400 South, Suite 400 185 South State Street, Suite 1300
Salt Lake City, Utah 84107 Salt Lake City, Utah 84111
(801) 268-2202 (801) 532-7840
(Name, address and telephone
number, including area code,
of agent for service)
--------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered per Share(1) Offering Price Registration Fee(1)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock............... 2,500,000 $ 3.88 $9,696,965.31 $2,860.60
shares
==========================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h)(1) and 457(c). With respect to 674,694
shares of the 2,500,000 being registered, the offering price per share,
aggregate offering price and registration fee have been calculated based upon
the exercise price at which options with respect to such shares may be
exercised. With respect to the remaining 1,825,306 shares being registered, for
which the offering price is not known, the offering price per share, aggregate
offering price and registration fee are computed on the basis of the average of
the high and low sales prices as reported on the NASDAQ Stock Market (national
market) on April 24, 1998.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
------------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-------------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents filed by Datamark Holding, Inc. (the "Registrant")
with the Securities and Exchange Commission are hereby incorporated by reference
in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended June
30, 1997.
(2) The Registrant's Quarterly Report on Form 10-Q for the three months
ended September 30, 1997.
(3) The Registrant's Quarterly Report on Form 10-Q for the three months
ended December 31, 1997.
(4) The Registrant's Current Report on Form 8-K dated March 19, 1998.
(5) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment
or report filed under the Exchange Act for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents. 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 herein
(or in any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof except as
so modified or superseded.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
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Item 6. Indemnification of Directors and Officers.
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Section 102(b)(7) of the Delaware General Corporation Law authorizes a
Delaware corporation to have a provision in its certificate of incorporation
eliminating or limiting the personal liability of its directors to it and its
stockholders for monetary damages for breach of a director's fiduciary duty of
care; provided that such provision shall not eliminate or limit the liability of
a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the Delaware General Corporate Law or (iv) for any
transaction from which the director derived an improper personal benefit.
The Registrant's Certificate of Incorporation provides that any director
or officer of the Registrant, individually or with others, may be a party to, or
may have an interest in, any transaction of the Registrant or any transaction in
which the Registrant is a party or has an interest. Each person who is now or
may become a director or officer of the Registrant is relieved from liability
that he might otherwise obtain in the event such director or officer contracts
with the Registrant for the benefit of himself or any other firm or corporation
in which he may have an interest, provided such director or officer acts in good
faith.
Section 145 of the Delaware General Corporation Law permits a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action. In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action. In any such action, no indemnification may be paid in respect of any
claim, issue or matter as to which such person shall have been adjudged liable
to the corporation except as otherwise approved by the Delaware Court of
Chancery or the court in which the claim was brought. In any other type of
proceeding, the indemnification may extend to judgments, fines and amounts paid
in settlement, actually and reasonably incurred in connection with such other
proceeding, as well as to expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the corporation and, with
respect to any criminal actions or proceedings, the person had no reasonable
cause to believe his conduct was unlawful. The statute contains additional
limitations applicable to criminal actions and to actions brought by or in the
name of the corporation.
The Registrant's Certificate of Incorporation and Bylaws require the Registrant
to indemnify its directors and officers to the fullest extent permitted under
Delaware law. Specifically, the Registrant's Bylaws provide that the Registrant
shall, to the fullest extent permitted, and in the manner required by the law of
the State of Delaware, shall (i) indemnify any person (and the heirs and legal
representative of such person) who was or is made or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the Registrant, or
is or was serving at the request of the Registrant as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against any applicable obligation or liability permitted by
law; and (ii) provide to any such person (and the heirs and legal
representatives of such person) advances for expenses incurred in defending any
such action, suit or proceeding, upon receipt of an undertaking by or on behalf
of such person (and the heirs and legal representatives of such person) to repay
such advances if it shall ultimately be determined that he is not entitled to
indemnification by the Registrant. The Registrant's Certificate of
Incorporation, as amended, provides that the Registrant shall indemnify any and
all persons (and the respective heirs, administrators, successors, and assigns
of such person) who may serve or who have served at any time as directors or
officers, or who, at the request of the Board of Directors of the Registrant,
3
<PAGE>
may serve, or at any time have served as directors or officers of another
corporation in which the Registrant at such time owned or may own shares of
stock, or which it was or may be a creditor, against any and all expenses
actually or necessarily by such persons in connection with the defense or
settlement of any claim, action, suit or proceeding in which they, or any of
them, are made parties, or a party, or which may be assessed against them or any
of them by reason of being or having been directors or officers of the
Registrant, except in relation to matters as to which any such director or
officer shall be adjudged in any action, suit or proceeding to be liable for his
own negligence or misconduct in the performance of his duties. The Registrant's
Bylaws further provide that this indemnification and advancement of expenses
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any resolution,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 145(g) of the Delaware General Corporation Law provides that
corporations have the power to purchase and maintain insurance on behalf of any
person who is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability. The
Registrant's Bylaws provide the Registrant with this power. The Registrant
maintains insurance from a commercial carrier against certain liabilities that
may be incurred by its directors and officers.
The foregoing description is necessarily general and does not describe all
details regarding the indemnification of officers, directors or controlling
persons of the Registrant.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
See the Exhibit Index on page 8.
Item 9. Undertakings.
-------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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 this 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 this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
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<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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 Salt Lake City, State of Utah, on April 22, 1998.
DATAMARK HOLDING, INC.
By /s/ James A. Egide
-----------------------------------------
James A. Egide, Chairman of the Board
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints James A.
Egide and Mitchell L. Edwards, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James A. Egide Chairman of the Board, Principal April 22, 1998
- --------------------------- Executive Officer
James A. Egide
/s/ Stanton D. Jones Director, President of WorldNow April 22, 1998
- --------------------------- Online Network, Inc.
Stanton D. Jones
/s/ Mitchell L. Edwards Executive Vice President, April 22, 1998
- --------------------------- Secretary and Director
Mitchell L. Edwards
/s/ Michael Bard Chief Financial Officer and April 22, 1998
- --------------------------- Principal Accounting Officer
Michael Bard
/s/ J. Henry Smith Director April 22, 1998
- ---------------------------
J. Henry Smith
/s/ Kenneth Wooley Director April 22, 1998
- ---------------------------
Kenneth Wooley
6
<PAGE>
/s/ Terry R. Haas Director April 22, 1998
- ---------------------------
Terry R. Haas
</TABLE>
7
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DATAMARK HOLDING, INC.
EXHIBIT INDEX
Regulation S-K Sequential
Exhibit No. Description Page No.
- -------------- ---------------------------------------------- ----------
4.1* Certificate of Incorporation and Bylaws. (Incorporated
herein by reference from the Form 10-K filed by the
Registrant for the year ended June 30, 1995).
4.2* Bylaws of the Registrant as amended March 1, 1988.
(Incorporated by reference from the Form 10-K filed
by the Registrant for the year ended June 30, 1995).
5 Opinion of Parr, Waddoups, Brown, Gee & Loveless, a
professional corporation, as to the legality of the
securities offered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Parr, Waddoups, Brown, Gee & Loveless, a
professional corporation (included in Exhibit No. 5).
24 Powers of Attorney (included on page 6 hereof).
- ---------------------------------
* Incorporated by reference
8
Exhibit 5
April 27, 1998
The Board of Directors
of Datamark Holding, Inc.
448 East 6400 South, Suite 400
Salt Lake City, Utah 84107
Re: Datamark Holding, Inc.
Registration Statement on Form S-8
Gentlemen:
As counsel to Datamark Holding, Inc., a Delaware corporation (the
"Company"), in connection with the Company's Registration Statement on Form S-8
(the "Registration Statement") to be filed under the Securities Act of 1933, as
amended, for registration of 2,500,000 shares (the "Shares") of common stock,
$0.0001 par value, of the Company to be offered, sold and issued by the Company
pursuant to the Amended and Restated Datamark Holding, Inc. Incentive Plan (the
"Plan"), we have examined the originals or certified, conformed or reproduction
copies of all such records, agreements, instruments and documents as we have
deemed necessary as the basis for the opinion expressed herein. In all such
examinations, we have assumed the genuineness of all signatures on original or
certified copies and the conformity to original or certified copies of all
copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to the opinion hereinafter expressed, we have relied
upon certificates of public officials and statements or certificates of officers
or representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the terms and conditions of the Plan and
pursuant to the Registration Statement, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Parr, Waddoups, Brown, Gee & Loveless
PARR, WADDOUPS, BROWN, GEE & LOVELESS
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
August 29, 1997 included in DataMark Holding, Inc.'s Form 10-K for the year
ended June 30, 1997 and to all references to our Firm included in this
registration statement.
/s/Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
April 21, 1998
