As filed with the Securities and Exchange Commission on January 19, 2000
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EMPLOYEE SOLUTIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
ARIZONA 86-0676898
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
6225 NORTH 24TH STREET, PHOENIX, ARIZONA 85016
(Address of Principal Executive Offices) (Zip Code)
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EMPLOYEE SOLUTIONS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
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PAUL M. GALES, ESQ. COPY TO:
Senior Vice President, General Counsel, KENNETH V. HALLETT, ESQ.
and Secretary QUARLES & BRADY LLP
6225 North 24th Street 411 East Wisconsin Avenue
Phoenix, Arizona 85016 Milwaukee, Wisconsin 53202-4497
(Name and Address of Agent for Service)
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(602) 955-5556
(Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed Proposed Maximum
Amount to be Maximum Offering Aggregate Offering Amount of
Title of Securities to be Registered Registered Price Per Share Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value(1).......... 500,000 shares (2) $304,700(2) $81
Preferred Stock Purchase Rights(3)..... (3) (3) (3) (3)
======================================================================================================================
</TABLE>
(1) To the extent participation in the Plan creates a separate security, an
indeterminate amount of such separate securities, if any, are hereby
registered, along with the shares of the Registrant's Common Stock.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing the
registration fee, based upon $.6094, which is the average of the high and
low sales prices of the Registrant's Common Stock as reported in the Nasdaq
Small Cap Market on January 13, 2000.
(3) Issued in tandem with shares of common stock. The value attributable to the
Preferred Stock Purchase Rights is reflected in the market price of the
Common Stock to which the Rights are attached.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or
given to Plan participants as specified by Rule 428(b)(1) under the Securities
Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Employee Solutions, Inc. (the
"Registrant") (Commission File No. 000-22600) with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1999, June 30, 1999 and September 30, 1999;
and
(c) The Registrant's common stock Registration Statement on Form 8-A, as
amended by Amendment No. 1 thereto on Form 8-A/A dated April 9, 1998,
and the Registrant's Right's Registration Statement on Form 8-A filed
on February 18, 1998.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be in corporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
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 or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. See Item 3(d) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock registered hereunder will be
passed on for the Registrant by Quarles & Brady LLP.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Arizona Revised Statutes ss. 10-851 contains an extensive indemnification
provision which permits an Arizona corporation to indemnify any person who was,
is or is threatened to be named defendant or respondent ("party") in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative ("proceeding") (other than (i) a
proceeding by or in the right of the corporation in which the director was held
liable to the corporation or (ii) in connection with a proceeding charging
improper personal benefit in which the director was held liable on the basis
that personal benefit was improperly received by the director) by reason of the
fact that such person is or was a director, or while serving as a director, is
or was serving at the corporation's request as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise ("director") against the
obligation to pay a judgment, settlement, penalty or fine, or reasonable
expenses with respect to a proceeding (including obligations and expenses that
have not yet been paid by such person but that have been or may be incurred)
("liability") if such person's conduct was in good faith and such person
reasonably believed that such conduct in an official capacity with the
corporation was in the corporation's best interest or, in all other cases, that
such conduct was at least not opposed to the corporation's best interest, and,
in the case of criminal proceedings, such person had no reasonable cause to
believe that the conduct was unlawful.
Arizona Revised Statutes ss. 10-852 requires an Arizona corporation (unless
limited by its articles of incorporation) to (i) indemnify a director who was
the prevailing party in the defense of a proceeding to which the director was a
party because the director is or was a director of the corporation against
reasonable expenses incurred by the director in connection with the proceeding
and (ii) indemnify a director who is not an officer, employee or holder of more
than 5% of the outstanding shares of any class of the corporation's stock (an
"outside director") against liability and to pay an outside director's expenses
in advance of a final disposition of a proceeding, if the director furnishes the
corporation with a written affirmation of the director's good faith belief that
the director met the standard of conduct described inss.10-851 and an
undertaking executed personally, or on the director's behalf, to repay the
advance if it is determined that the director did not meet the standard of
conduct. Arizona Revised Statutes ss. 10-853 permits an Arizona corporation to
pay expenses incurred by any other director who is a party to a proceeding in
advance of final disposition of a proceeding if the director furnishes the
corporation the written affirmation and undertaking described above and a
determination is made by the company's board who are not parties to the
proceeding, special legal counsel or shareholders that the facts then known
would not preclude indemnification.
Arizona Revised Statutes ss. 10-854 permits a court to order
indemnification of a director who is a party to a proceeding upon the director's
application for indemnification to the court even if the director has not met
the statutory requirements if the director is fairly and reasonably entitled to
indemnification in view of all of the relevant circumstances.
Arizona Revised Statutes ss. 10-856 entitles an officer who is not a
director to the mandatory and court-ordered indemnification provided by Arizona
law to directors. In addition, an officer who is not a director and employees
and agents of an Arizona corporation may be indemnified to the same extent as
directors and may be further indemnified to the extent consistent with public
policy.
Arizona Revised Statutes ss. 10-202 provides that a corporation in its
articles of incorporation may eliminate or limit personal liability of members
of its board of directors to the corporation or its shareholders for money
damages for any action taken or any failure to take any action as a director.
However, no such provision may eliminate or limit the liability of a director
for the amount of a financial benefit received by a director to which the
director is not entitled, an intentional infliction of harm on the corporation
or its shareholders, authorizing the unlawful distribution to shareholders, or
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<PAGE>
an intentional violation of criminal law. A provision of this type has no effect
on the availability of equitable remedies, such as injunction or rescission, for
an action or failure to take any action as a director. The Registrant's Articles
of Incorporation contain such a provision.
The Registrant's Bylaws provide that the Registrant shall indemnify
officers and directors to the full extent permitted by and in the manner
permissible under the laws of the State of Arizona.
The Registrant maintains directors' and officers' liability insurance
coverage for, among other things, certain liability for violations of certain
federal and state securities laws. The policy does not include coverage for
violations of the securities laws arising out of public offerings of the
Registrant's securities other than the Registrant's August 12, 1993 public
offering.
Certain holders and their spouses, if applicable, of the Registrant's
warrants to purchase capital stock who have contractual registration rights are
required to reimburse the Registrant or its directors, officers, or controlling
persons for any expenses reasonably incurred in connection with investigating
any loss, claim, cost, expense, damage, liability or action that arises out of
or is based upon any untrue statement or omission in a registration statement or
prospectus under the Securities Act of 1933 in reliance upon and in conformity
with information furnished by such person for use in the preparation thereof.
Such holders also are required to indemnify the Registrant's officers and
directors against certain liabilities relating to the warrants, including
liabilities for transfer of the warrants or underlying stock in violation of the
securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index following the Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
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
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<PAGE>
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) of this
section 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-ef fective amendment by
those paragraphs is contained in periodic reports filed by the Registrant with
the Commission 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 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.
(h) Reference is made to the indemnification provisions described in Item 6
of this Registration Statement.
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.
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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 Phoenix, State of Arizona, on January 14, 2000.
EMPLOYEE SOLUTIONS, INC.
(Registrant)
By: /s/ Quentin P. Smith, Jr.
------------------------------------
Quentin P. Smith, Jr.
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Quentin P. Smith, Jr., John V. Prince and Paul M.
Gales, and each of them, his true and lawful attorneys-in-fact and agents, 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, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and any other regulatory authority, 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 and 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 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 the following persons in the
capacities and on the date indicated.
Person Title Date
------ ----- ----
/s/ Quentin P. Smith, Jr. Chairman, President, Chief January 14, 2000
- ---------------------------- Executive Officer,
Quentin P. Smith, Jr. and Director
/s/ David R. Carpenter Director January 14, 2000
- ----------------------------
David R. Carpenter
/s/ Jeffery A. Colby Director January 14, 2000
- ----------------------------
Jeffery A. Colby
/s/ Sara R. Dial Director January 14, 2000
- ----------------------------
Sara R. Dial
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/s/ Kennard Hill Director January 14, 2000
- ----------------------------
Kennard Hill
/s/ Robert L. Mueller Director January 14, 2000
- ----------------------------
Robert L. Mueller
/s/ John V. Prince Chief Financial Officer January 14, 2000
- ---------------------------- Principal Accounting Officer
John V. Prince
7
<PAGE>
EMPLOYEE SOLUTIONS, INC.
("ESI")
(COMMISSION FILE NO. 0-22600)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
- ------ ----------- --------------- --------
<S> <C> <C> <C>
4.1 Composite Articles of Incorporation Exhibit 3(1) to ESI's Annual Report on
of ESI, as amended Form 10-K for the Fiscal Year ended
December 31, 1996 (the "1996 10-K")
4.2 Bylaws of ESI Exhibit 3(ii) to the 1996 10-K
4.3 Indenture dated October 15, 1997 Exhibit 4.1 to Report on Form 8-K dated
among ESI, the Guarantor October 21, 1997 ("10/21/97 8-K")
Subsidiaries (as defined) and The
Huntington National Bank
4.4 Purchase Agreement dated October Exhibit 4.2 to 10/21/97 8-K
16, 1997 among ESI, the Guarantor
Subsidiaries and First Chicago
Capital Markets, Inc.
4.5 Loan and Security Agreement dated Exhibit 10.1 to ESI's Report on Form
as of October 26, 1999 by and among 10-Q for the quarter ended September 30,
ESI and certain of its subsidiaries, 1999
Foothill Capital Corporation and
Ableco Finance LLC
4.6 Rights Agreement dated February 4, Exhibit 1 to Registration Statement on
1998 between ESI and American Form 8-A dated February 18, 1998
Securities Transfer & Trust, Inc.
5 Opinion of Counsel X
23.1 Consent of Arthur Andersen LLP X
23.2 Consent of Counsel Contained in
Exhibit 5
24 Powers of Attorney Signature Page
to Registration
Statement
</TABLE>
EI-1
EXHIBIT 5
(Form S-8)
January 14, 2000
Employee Solutions, Inc.
6225 North 24th Street
Phoenix, Arizona 85016
Gentlemen and Ladies:
We are providing this opinion in connection with the Registration Statement
of Employee Solutions, Inc. (the "Company") on Form S-8 (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), with
respect to the proposed sale of up to 500,000 shares of Common Stock, no par
value, of the Company (the "Shares") pursuant to the Employee Solutions, Inc.
Employee Stock Purchase Plan (the "Plan"). We have examined (i) the Registration
Statement; (ii) the Company's Articles of Incorporation and Bylaws, as amended
to date; (iii) the Plan; (iv) corporate proceedings relating to the adoption of
the Plan and the issuance of the Shares; and (v) such other documents and
records as we have deemed necessary in order to render this opinion. In
rendering this opinion, we have relied as to certain factual matters on
certificates of officers of the Company and of state officials.
Based upon the foregoing, it is our opinion that the Shares, when issued
and paid for as contemplated by the Registration Statement and the Plan, will be
validly issued, fully paid and non-assessable by the Company.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement. In giving our consent, we do not admit that we are "experts" within
the meaning of Section 11 of the Act, or that we come within the category of
persons whose consent is required by Section 7 of the Act.
Very truly yours,
QUARLES & BRADY LLP
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 March 17, 1999
included in the Employee Solutions, Inc. Form 10-K for the year ended December
31, 1998 and to all references to our Firm included in this registration
statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona
January 12, 2000
