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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 1998
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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REMEDYTEMP, INC.
(Exact name of Registrant as specified in its charter)
32122 CAMINO CAPISTRANO
SAN JUAN CAPISTRANO, CALIFORNIA 92675
(949) 661-1211
(Address of Principal Executive Offices)
CALIFORNIA 95-2890471
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1998 REMEDYTEMP, INC. DEFERRED COMPENSATION AND STOCK
OWNERSHIP PLAN FOR OUTSIDE DIRECTORS
(Full title of the plan)
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ALAN M. PURDY WALTER L. SCHINDLER, ESQ.
CHIEF FINANCIAL OFFICER GIBSON, DUNN & CRUTCHER LLP
32122 CAMINO CAPISTRANO 4 PARK PLAZA, SUITE 1800
SAN JUAN CAPISTRANO, CALIFORNIA 92675 IRVINE, CALIFORNIA 92614-8557
(949) 661-1211 (949) 451-3987
(Name, address, zip code, and telephone number, (Name, address, zip code, and telephone number
including area code, of agent for service) including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM
TITLE OF PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
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Class A Common Stock,
par value $0.01 per share 25,000 $29.25 $731,250.00 $215.72
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(1) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(h) and Rule 457(c) based on the average of the high
and low prices for the Class A Common Stock of RemedyTemp, Inc. as
reported on May 27, 1998 on the Nasdaq National Market.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan(s)
described herein.
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This Registration Statement on Form S-8 contains 7 sequentially numbered pages.
The Exhibit Index appears at sequentially numbered page 7.
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This Registration Statement on Form S-8 is filed by RemedyTemp, Inc.
(the "Company") relating to 25,000 shares of the Company's Class A Common Stock,
par value $0.01 per share (the "Common Stock"), issuable to non-employee,
non-officer directors ("Outside Directors") of the Company under the 1998
RemedyTemp, Inc. Deferred Compensation and Stock Ownership Plan for Outside
Directors (the "Plan").
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 of Form S-8 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, which previously have been filed by the Company
with the Securities and Exchange Commission (the "Commission"), are incorporated
herein by reference and made a part hereof:
(a) The Company's annual report on Form 10K for the year ended
September 28, 1997;
(b) The Company's quarterly report on Form 10-Q for the quarters
ended December 28, 1997 and March 29, 1998; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on June 7, 1996, which incorporates by reference the
description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (Registration No.
333-4276), including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment hereto that indicates that all securities offered hereunder have been
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
For purposes of this Registration Statement, any statement contained in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed document that also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the California General Corporation Law, the Company's
Amended and Restated Articles of Incorporation (the "Articles of Incorporation")
and its Amended and Restated Bylaws (the "Bylaws") provide that a director will
not be personally liable for monetary damages to the Company or its shareholders
for breach of fiduciary duty as a director, except for liability for (i) acts or
omissions by the director that involve intentional misconduct or a knowing and
culpable violation of law; (ii) acts or omissions that a director believes to be
contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director; (iii)
transactions from which the director derived an improper benefit; (iv) acts or
omissions by the director that show a reckless disregard for the director's duty
to the Company or its shareholders in circumstances in which the director was
aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of serious injury to the Company or its
shareholders; (v) acts or omissions by the director that constitute an unexcused
pattern of inattention that amounts to an abdication of the director's duty to
the Company or its shareholders; (vi) unlawful distributions, loans or
guarantees as set forth in Section 316 of the California Corporations Code; and
(vii) unlawful transactions between the director and the Company, as provided in
Section 310 of the California Corporations Code. These provisions do not limit
or eliminate the rights of the Company or its shareholders to seek non-monetary
relief, such as an injunction or rescission.
The Company has entered into individual indemnification agreements
governed by California law with each of its directors and certain officers. The
indemnification agreements require the Company to pay, subject to certain
limitations, all amounts attributable to any claims made against such an officer
or director arising out of acts by such officer or director in their capacity
as, or solely because of their position as, an officer and/or director of the
Company, provided that such persons acted in good faith and in a manner he or
she reasonably believed to be in the best interests of the Company and its
shareholders, and in the case of a criminal proceeding, had no reasonable cause
to believe that his or her conduct was unlawful. In addition, the indemnity
agreements provide generally that the Company will advance expenses incurred by
directors and executive officers in any action or proceeding as to which they
may be entitled to indemnification subject to certain exceptions. The Company
carries directors and officers indemnity insurance.
The indemnification provisions in the Company's Amended and Restated
Articles of Incorporation and Amended and Restated Bylaws and the
indemnification agreements entered into between the Company and its non-employee
directors may permit indemnification for liabilities arising under the
Securities Act. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Specimen Stock Certificate *
4.2 Shareholder Rights Agreement *
4.3 Amended and Restated Articles of Incorporation of the Company **
4.4 Amended and Restated Bylaws of the Company ***
5.1 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the
securities being registered
10.1 1998 RemedyTemp, Inc. Deferred Compensation and Stock Ownership
Plan for Outside Directors****
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23.1 Consent of Price Waterhouse LLP, independent accountants
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5
hereto)
24.1 Power of Attorney (contained on signature page hereto)
99.1 Trust Agreement under the 1998 RemedyTemp, Inc. Deferred
Compensation and Stock Ownership Plan for Outside Directors
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* Incorporated by reference to the exhibit of the same number to
the Company's Registration Statement on Form S-1 (Reg.
No. 333-4276), as amended.
** Incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-4276), as
amended.
*** Incorporated by reference to the exhibit of the same number to
the Company's Registration Statement on Form S-8 (Reg.
No. 333-47581).
**** Incorporated by reference to Exhibit 10.24 to the Company's
Quarterly Report on From 10-Q for the quarter ended March 29,
1998.
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; and
(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 with or furnished to the
Commission 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 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.
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(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 a final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Juan Capistrano, State of California, on May 29
1998.
REMEDYTEMP, INC.
By: /s/ Paul W. Mikos
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Paul W. Mikos
President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Paul
W. Mikos and Alan M. Purdy his true and lawful attorneys-in-fact and agents,
each acting alone, with full powers 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, granting unto
said attorneys-in-fact and agents, each acting alone, with full powers 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 that all said
attorneys-in-fact and agents, each acting alone, or his substitute or
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 dates indicated.
NAME TITLE DATE
/s/ Paul W. Mikos Director, President and Chief May 29 1998
- --------------------------------- Executive Officer (Principal
Paul W. Mikos Executive Officer)
/s/ Alan M. Purdy Chief Financial Officer (Principal May 29, 1998
- --------------------------------- Financial Officer and Principal
Alan M. Purdy Accounting Officer)
/s/ Robert E. McDonough, Sr. Director, Chairman of the Board May 29, 1998
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Robert E. McDonough, Sr.
/s/ Susan McDonough Mikos Director, Secretary May 29, 1998
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Susan McDonough Mikos
/s/ William D. Cvengros Director May 29, 1998
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William D. Cvengros
/s/ James L. Doti Director May 29, 1998
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James L. Doti
/s/ Robert A. Elliot Director May 29, 1998
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Robert A. Elliott
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NAME TITLE DATE
/s/ J. Michael Hagan Director May 29, 1998
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J. Michael Hagan
/s/ John B. Zaepfel Director May 29, 1998
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John Zaepfel
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INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit No. Description Page
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4.1 Specimen Stock Certificate *
4.2 Shareholder Rights Agreement *
4.3 Amended and Restated Articles of Incorporation of the **
Company
4.4 Amended and Restated Bylaws of the Company ***
5.1 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of
the securities being registered
10.1 1998 RemedyTemp, Inc. Deferred Compensation and Stock ****
Ownership Plan for Outside Directors
23.1 Consent of Price Waterhouse LLP independent accountants
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in
Exhibit 5.1 hereto)
24.1 Power of Attorney (contained on signature page hereof)
99.1 Trust Agreement under the 1998 RemedyTemp, Inc. Deferred
Compensation and Stock Ownership Plan for Outside
Directors
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* Incorporated by reference to the exhibit of the same number to the
Company's Registration Statement on Form S-1 (Reg. No. 333-4276),
as amended.
** Incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-4276), as
amended.
*** Incorporated by reference to the exhibit of the same number to the
Company's Registration Statement on Form S-8 (Reg. No. 333-47581).
**** Incorporated by reference to Exhibit 10.24 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 29,
1998.
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