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REGISTRATION NO. 333-
As filed with the Securities and Exchange Commission on September 12, 2000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LIFEMARK CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-3338328
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
7600 NORTH 16TH STREET, SUITE 150
PHOENIX, ARIZONA 85020
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
2000 NON-EMPLOYEE DIRECTOR STOCK PLAN
1999 EXECUTIVE STOCK OPTION AND OWNERSHIP PLAN
(FULL TITLES OF THE PLANS)
LIFEMARK CORPORATION BELL, BOYD & LLOYD LLC
7600 NORTH 16TH STREET THREE FIRST NATIONAL PLAZA
PHOENIX, ARIZONA 85020 CHICAGO, ILLINOIS 60602
ATTENTION: MICHAEL J. KENNEDY ATTENTION: WILLIAM G. BROWN
(602) 331-5100 (312) 372-1121
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENTS FOR SERVICE)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount to Offering Price Aggregate Amount of
Securities to be Registered be Registered(1) Per Share Offering Price Registration Fee
--------------------------- ---------------- --------- -------------- ----------------
Common Stock, $.01 par value
(2000 Non-Employee Director 200,000 Shares $8,21875(2) $1,643,750 $434(2)
Stock Plan) 50,000 Shares $6.50(3) $325,000 $86
Common Stock, $.01 par value
(1999 Executive Stock Option 35,000 Shares $8,21875(2) $287,656 $76(2)
and Ownership Plan) 165,000 Shares $2.9375(3) $484,688 $128
Total
450,000 Shares -- -- $724
(1) THE REGISTRATION STATEMENT ALSO INCLUDES AN INDETERMINATE NUMBER OF
ADDITIONAL SHARES THAT MAY BECOME ISSUABLE UNDER THE ANTIDILUTION AND
OTHER ADJUSTMENT PROVISIONS OF THE RESPECTIVE PLANS PURSUANT TO RULE
416(A) OF THE SECURITIES ACT OF 1933.
(2) IN ACCORDANCE WITH RULE 457(H), CALCULATED ON THE BASIS OF THE AVERAGE
OF THE HIGH AND LOW SALE PRICES OF THE REGISTRANT'S COMMON STOCK AS
QUOTED IN THE CONSOLIDATED REPORTING SYSTEM OF THE NASDAQ NATIONAL
MARKET ON SEPTEMBER 11, 2000, AS REPORTED BY NASDAQ ONLINE.
(3) REFLECTS THE EXERCISE PRICE OF CURRENTLY OUTSTANDING OPTIONS UNDER THE
PLANS.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be included herewith.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be included herewith.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
This registration statement on Form S-8 relates to the registration of shares of
common stock of Lifemark Corporation (the "Registrant"), $.01 par value per
share (the "Common Stock").
The Registrant incorporates herein by reference the following documents in this
registration statement:
(a) The Registrant's annual report on Form 10-K for the year ended
May 31, 2000; and
(b) The description of the Registrant's Common Stock contained in the
Registrant's registration statement filed under Section 12 of the
Securities Exchange Act of 1934, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant 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 Common Stock of the
Registrant offered has been sold or which deregisters all Common Stock 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. Any statement contained in any document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or superseded for purposes of this registration statement 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 such 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
William G. Brown, a member of Bell, Boyd & Lloyd LLC, counsel for the
Registrant, is a director of the Registrant and owns 43,760 shares of its Common
Stock. The William Gardner Brown Trust, of which members of Mr. Brown's family
are beneficiaries, also holds 70,000 shares of Registrant's Common Stock, a
Stock Purchase Warrant exercisable for 10,000 shares of Registrant's Common
Stock at an exercise price of $4.45 per share, and $300,000 in principal amount
of the Registrant's Convertible Notes, which are currently convertible into
77,922 shares of Common Stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers Delaware
corporations to indemnify any former or present director or officer against
expenses, judgments, fines and settlements actually and reasonably incurred by
such person in connection with any action, suit or proceeding, if such director
or officer acted in good faith and in a manner such person reasonably 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 reasonable cause to believe
his or her conduct was unlawful, except that no indemnification shall be made in
connection with any action by or in the right of the corporation if such person
is adjudged to be liable for negligence in the performance of his or her duty to
the corporation, unless the court determines that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expense that the court shall deem proper. Said section further provides that to
the extent that any such person is successful on the merits or otherwise in
defense of any action such director or officer shall be indemnified against
expenses actually and reasonably incurred by him or her.
Article EIGHTH of the Registrant's Certificate of
Incorporation provides as follows:
EIGHTH: (1) Each person who is or was a director or officer of
the Corporation or a subsidiary of the Corporation and each person who serves or
served at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise (and the
heirs, executors, administrators and estates of any such persons), shall be
indemnified by the Corporation in accordance with, and to the fullest extent
authorized by, the provisions of the General Corporation Law of the State of
Delaware as it may from time to time be amended. Each person who is or was an
employee or agent of the Corporation or a subsidiary of the Corporation, and
each person who serves or has served at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (and the heirs, executors, administrators and estates of such
persons), may be similarly indemnified at the discretion of the Board of
Directors.
(2) No director shall be personally liable to the Corporation
or its stockholders for monetary damages for any breach of fiduciary duty by
such director as a director. Notwithstanding the foregoing sentence, a director
shall be liable to the extent provided by applicable law (i) for 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) pursuant to Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
(3) No amendment to or repeal of this Article EIGHTH shall
apply to or have any effect on the right to indemnification or liability or
alleged liability of any person who is or was a director or officer of the
Corporation or a subsidiary of the Corporation or any person who serves or
served at the request of the Corporation as director or officer of another
corporation, partnership, joint venture, trust or other enterprise (or the
heirs, executors, administrators and estates of any such persons), for or with
respect to any acts or omissions of such person occurring prior to such
amendment.
Article VII, Section 5, of Registrant's by-laws provides as
follows:
Section 5. Indemnification of Directors, Officers and Others. Each
person who is or was a director or officer of the Corporation or a subsidiary of
the Corporation and each person who serves or served at the request of the
Corporation as a director or officer (or equivalent) of another corporation,
partnership, joint venture, trust or other enterprise (and the heirs, executors,
administrators and estates of any such persons), shall be indemnified by the
Corporation in accordance with, and to the fullest extent authorized by, the
provisions of the General Corporation Law of the State of Delaware as it may
from time to time be amended, except as to any action, suit or proceeding
brought by or on behalf of the director or officer of the Corporation without
prior approval of the board of directors. Each person who is or was an employee
or agent of this Corporation, and each person who serves or has served as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, may be similarly indemnified at the discretion of the board of
directors. The indemnification provided by this section 5 shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her
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official capacity and as to action in another capacity while holding such
office. The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation, as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of this by-law
or the Delaware Corporation Law.
The Registrant has entered into an indemnification contract with each
of its officers and directors that provides for the prompt indemnification of
such persons "to the fullest extent permitted by law" against expenses,
judgments, fines, penalties and settlements paid or incurred in connection with
investigating, defending, being a witness in, or participating in (including on
appeal), any threatened, pending, or completed action, suit or proceeding or any
inquiry or investigation related to the fact that the Indemnitee is or was a
director, officer, employee, agent or fiduciary of the Registrant or was serving
in a similar capacity at the Registrant's request with another corporation,
partnership, joint venture, employee benefit plan, trust, or other enterprise or
by reason of any act or omission by the Indemnitee in any such capacity. The
obligation of the Registrant to indemnify an Indemnitee under the contract is
subject to the condition that the reviewing party (a person or body consisting
of a director or directors appointed by the Board of Directors who is not a
party to the claim for which indemnification is being sought) shall not have
determined that the Indemnitee would not be permitted to be indemnified under
applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement which are required by Item 601 of
Regulation S-K are listed in the Index to Exhibits set forth elsewhere in this
registration statement.
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 this registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this registration statement or any material change to
such information in this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration
statement.
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(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 this 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)-(g) Not applicable.
(h) 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 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 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 Securities Act of 1933 and will be governed
by the final adjudication of such issue.
(i)-(j) Not applicable.
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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 September 12, 2000.
LIFEMARK CORPORATION
By: /s/ Rhonda E. Brede
-------------------
President and Chief Executive Officer
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.
/s/ Rhonda E. Brede President, Chief Executive Officer September 12, 2000
- -------------------------------- and Director
Rhonda E. Brede (Principal Executive Officer)
/s/ Michael J. Kennedy Vice President and Chief Financial September 12, 2000
- -------------------------------- Officer (Principal Financial and
Michael J. Kennedy Accounting Officer)
/s/ Richard C. Jelinek Chairman of the Board and Director September 12, 2000
- --------------------------------
Richard C. Jelinek
/s/ John G. Lingenfelter Vice Chairman and Director September 12, 2000
- --------------------------------
John G. Lingenfelter, M.D.
/s/ Risa Lavizzo-Mourey Director September 12, 2000
- --------------------------------
Risa Lavizzo-Mourey
/s/ Henry H. Kaldenbaugh Director September 12, 2000
- --------------------------------
Henry H. Kaldenbaugh, M.D.
/s/ William G. Brown Director September 12, 2000
- --------------------------------
William G. Brown
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INDEX TO EXHIBITS
The following are filed as part of this registration statement.
Exhibit Page Number
Number Description of Document or Reference
- ------ ----------------------- ------------
4(a)(1) Conformed copy of Certificate of Incorporation of
the Registrant, as amended. (Incorporated by
reference to Exhibit 4(a)(5) to the Registrant's
Registration Statement Number 333-04981 on Form
S-8.)
4(a)(2) Certificate of Ownership and Merger of Lifemark
Incorporated into Managed Care Solutions, Inc.
(Incorporated by reference to Exhibit 3.1(b) filed
as part of registrant's Annual Report on Form 10-K
for the fiscal year ended May 31, 1999.)
4(b)(1) Conformed copy of By-laws of the Registrant, as
amended. (Incorporated by reference to Exhibit 3.1
filed as part of registrant's Quarterly Report on
Form 10-Q for the quarter ended November 30,
1999.)
5 Opinion of Bell, Boyd & Lloyd LLC.
15 None.
23(a) Consent of PricewaterhouseCoopers LLP.
23(b) Consent of Bell, Boyd & Lloyd LLC (included in
Exhibit 5).
24 None.
28 Not applicable.
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