AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1996
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KINARK CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 71-0268502
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7060 SOUTH YALE AVENUE, TULSA, OKLAHOMA 74136
(918) 494-0964
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
KINARK CORPORATION 1996 STOCK OPTION PLAN
(Full title of the Plan)
PAUL R. CHASTAIN
CHIEF FINANCIAL OFFICER
7060 SOUTH YALE AVENUE
TULSA, OKLAHOMA 74136
(918) 494-0964
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPY TO:
PAUL A. QUIROS, ESQ.
Nelson Mullins Riley & Scarborough, L.L.P.
400 Colony Square, Suite 2200
1201 Peachtree Street, N.E.
Atlanta, Georgia 30361
(404) 817-6000
(404) 817-6050 (fax)
CALCULATION OF REGISTRATION FEE
Amount to Proposed MaximumProposed Maximum
Title of Securitiesbe Offering Price PerAggregate OfferingAmount of
to be RegisteredRegistered Share(1) Price(1) Registration Fee
Common Stock, 800,000 $2.94 2,352,000 $713
par value
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high and
low prices of the Registrant's Common Stock on October 31, 1996, as
reported by the American Stock Exchange.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
*Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement on Form S-8 (the "Registration
Statement") in accordance with Rule 428 under the Securities Act of 1933 and
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Kinark Corporation, a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") under the Securities Exchange Act of 1934, as amended (File No.
001-03920) are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, filed with the Commission on April 1, 1996, as amended by
Form 10-K/A filed with the Commission on April 4, 1996, and as further amended
by Form 10-K/A filed with the Commission on July 30, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, filed with the Commission on May 15, 1996, as amended by Form
10-Q/A filed with the Commission on July 30, 1996; the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996, filed with the
Commission on August 14, 1996; the Company's Current Report on Form 8-K dated
February 5, 1996, filed with the Commission on February 20, 1996, as amended by
Form 8-K/A filed with the Commission on April 19, 1996; the Company's Current
Report on Form 8-K dated February 27, 1996, filed with the Commission on March
13, 1996, as amended by Form 8-K/A filed with the Commission on March 21, 1996,
and as further amended by Form 8-K/A filed with the Commission on April 5,
1996; the Company's Current Report on Form 8-K dated April 10, 1996, filed with
the Commission on May 8, 1996; the Company's Current Report on Form 8-K dated
May 14, 1996, filed with the Commission on May 22, 1996; the Company's Current
Report on Form 8-K dated October 28, 1996, filed with the Commission on October
31, 1996; and
(c) The description of the Company's Common Stock, par value $.10 per
share, set forth under the caption "Description of Capital Stock" in the
Company's Registration Statement on Form S-3 (File No. 333-4937) filed with the
Commission on October 4, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be 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.
Section 102(b)(7) of the Delaware General Corporation Law authorizes the
inclusion of a provision in the certificate of incorporation of a Delaware
corporation to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit the
liability of a director: (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders; (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) for willful or negligent conduct in paying dividends or repurchasing
stock out of other than lawfully available funds; or (iv) for any transaction
from which the director receives an improper personal benefit. This provision
pertains only to breaches of duty by directors in their capacity as directors
(and not in any other corporate capacity, such as officers). The Company's
Restated Certificate of Incorporation, as amended (the "Certificate"),
exonerates the Company's directors from monetary liability to the fullest
extent permitted by this statutory provision.
Section 145 of the Delaware General Corporation Law authorizes a Delaware
corporation to indemnify its officers, directors, employees or agents for
attorneys' fees and other expenses as well as judgments or amounts paid in
settlement in civil cases. The person seeking indemnification must have acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation in respect to the claim made
against him or her. In criminal cases, the person seeking indemnification may
be indemnified for fines and costs provided that, in addition to the foregoing
standard of conduct, he or she did not have reasonable cause to believe his or
her conduct was unlawful. Section 145 also permits a Delaware corporation to
indemnify its directors, officers, agents and employees for expenses and
attorneys' fees (not judgments) in actions brought by or in the right of the
corporation, except that it does not permit such indemnification for any claim
as to which such person is adjudged to be liable to the corporation, unless the
court determines otherwise. Section 145 requires a Delaware corporation to
indemnify any director, officer, employee or agent of the corporation to the
extent he or she has been successful on the merits or otherwise in defense of
any action, lawsuit or proceeding, or in defense of any claim, issue or matter
therein, for expenses, including attorneys' fees, actually and reasonably
incurred in connection with that defense.
In addition to such rights as may be provided by law, the Certificate and
the Company's Amended and Restated Bylaws (the "Bylaws") provide broad
indemnification rights to directors, officers, employees and agents of the
Company and its subsidiaries with respect to various civil and criminal
liabilities and losses which may be incurred by such director, officer, agent
or employee pursuant to any pending or threatened litigation or other
proceedings, to the fullest extent permitted under the Delaware General
Corporation Law. The Company is also obligated under the Certificate and the
Bylaws to advance payment of expenses incurred by directors, officers,
employees and agents of the Company or its subsidiaries which are incurred by
any such person in defending a proceeding brought by reason of the fact that
her or she is or was a director, officer, employee or agent of the Company or
its subsidiaries, provided that he or she provides an undertaking to the
Company to repay any such advances if it is ultimately determined that he or
she is not entitled to indemnification. Any amendment or other modification to
the Certificate or Bylaws which limits or otherwise adversely affects the
rights to indemnification currently provided shall apply only to proceedings
based upon actions and events occurring after such amendment and delivery of
notice thereof to the indemnified parties.
The Company has entered into separate indemnification agreements with each
of its directors and certain of its officers and employees, whereby the Company
has agreed, among other things, to provide for indemnification and advancement
of expenses in a manner and subject to terms and conditions similar to those
set forth in the Bylaws. These agreements may not be abrogated by action of
the stockholders.
The Company has a standard policy of directors' and officers' liability
insurance covering directors, officers, employees and agents of the Company and
its subsidiaries with respect to liabilities incurred as a result of their
service in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
4.1 Provisions in the Company's Restated Certificate of Incorporation, as
amended, and Amended and Restated Bylaws defining the rights of
holders of the Company's Common Stock (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on form S-3 filed
with the Commission on October 4, 1996 (File No. 333-4937)).
4.2 Kinark Corporation 1996 Stock Option Plan.
4.3 Form of Stock Option Agreement pursuant to Kinark Corporation 1996
Stock Option Plan.
4.4 Form of Stock Option Agreement for Non-Employee Directors pursuant to
the Kinark Corporation Stock Option Plan.
5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P., counsel to the
Company, as to legality of securities being registered.
15.1 Letter Regarding Unaudited Interim Financial Information.
23.1 Consent of Deloitte & Touche LLP, independent auditors of the
Company.
23.2 Consent of Nelson Mullins Riley & Scarborough, L.L.P. (included as
part of Exhibit 5.1).
24.1 Power of Attorney (contained on signature page of this filing).
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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 Dallas, State of Texas, on October 10, 1996.
Kinark Corporation
By:/s/ Ronald J. Evans
Ronald J. Evans
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald J. Evans and Paul R. Chastain,
and each of them, as 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, 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 and to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all which said attorneys-in-fact and
agents or any of them, or their 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.
Signature Title Date
/s/ Michael T. Crimmins Chief Executive Officer October 10, 1996
Michael T. Crimmins (principal executive officer)
(Chairman of the Board and
Director
/s/ Ronald J. Evans President and Director October 10, 1996
Ronald J. Evans
/s/ Paul R. Chastain Vice President and Chief October 10, 1996
Paul R. Chastain Financial Officer
(principal financial and
accounting officer) and
Director
/s/ Richard C. Butler Director October 10, 1996
Richard C. Butler
/s/ Mark E. Walker Director October 10, 1996
Mark E. Walker
/s/ Joseph J. Morrow Director October 10, 1996
Joseph J. Morrow
/s/ John H. Sununu Director October 10, 1996
EXHIBIT INDEX
Exhibit Sequential
Number Exhibit Page No.
4.1 Provisions in the Company's Restated Certificate of Incorporation, as
amended, and Amended and Restated Bylaws defining the rights of
holders of the Company's Common Stock (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-3 filed
with the Commission on October 4, 1996 (File No. 333-4937)).
4.2 Kinark Corporation 1996 Stock Option Plan.
4.3 Form of Stock Option Agreement pursuant to Kinark
Corporation 1996 Stock Option Plan.
4.4 Form of Stock Option Agreement for Non-Employee Directors
pursuant to the Kinark Corporation Stock Option Plan.
5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P.,
counsel to the Company, as to legality of securities being
registered.
15.1 Letter Regarding Unaudited Interim Financial Information.
23.1 Consent of Deloitte & Touche LLP, independent auditors of
the Company.
23.2 Consent of Nelson Mullins Riley & Scarborough, L.L.P.
(included as part of Exhibit 5.1).
24.1 Power of Attorney (contained on signature page of this
filing).