-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JV6h4ca1iPbi/MATzql9tLttGBiDDogtJeQ6ktxEGGhUGZDJQv5gM2sFPFMm9Biy 1hs1++WVHL/MKg2HfBoOvQ== 0000950134-99-011345.txt : 19991223 0000950134-99-011345.hdr.sgml : 19991223 ACCESSION NUMBER: 0000950134-99-011345 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991222 EFFECTIVENESS DATE: 19991222 FILER: COMPANY DATA: COMPANY CONFORMED NAME: STAFFMARK INC CENTRAL INDEX KEY: 0001017968 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HELP SUPPLY SERVICES [7363] IRS NUMBER: 710788538 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-93325 FILM NUMBER: 99778605 BUSINESS ADDRESS: STREET 1: 234 EAST MILLSAP CITY: FAYETTEVILLE STATE: AR ZIP: 72703 BUSINESS PHONE: 5019736000 MAIL ADDRESS: STREET 1: 234 EAST MILLSAP CITY: FAYETTEVETTE STATE: AR ZIP: 72703 S-8 1 FORM S-8 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
==================================================================================================================== 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 - -------------------------------------------------------------------------------------------------------------------- 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. ===================================================================================================================
2 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 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 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 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 6 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 7 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 8 INDEX TO EXHIBITS
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. 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)
- ---------------- (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. EX-4.6 2 STAFFMARK, INC. 1999 UK SHARESAVE PLAN 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 2 CONTENTS
PAGE 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
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; 1 4 "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 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 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 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 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 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 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. 8 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. 9 12 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:- 10 13 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: 11 14 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 12 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 13 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 14 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. 15 18 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 16 19 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. 17 20 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 18 21 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. 19 EX-5.1 3 OPINION/CONSENT OF GORDON Y ALLISON 1 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. EX-23.1 4 CONSENT OF ARTHUR ANDERSEN LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----