Form S-8
As filed with the Securities and Exchange Commission on June 25, 2010
Registration No. 333-                    
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CORE-MARK HOLDING COMPANY, INC.
(Exact Name of Registrant as Specified in its Charter)
 
     
Delaware   20-1489747
(State or Other Jurisdiction of   (I.R.S. Employer
Incorporation or Organization)   Identification No.)
395 Oyster Point Boulevard, Suite 415
South San Francisco, California 94080
(650) 589-9445
(Address, Including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)
 
2010 LONG-TERM INCENTIVE PLAN
(Full Title of Plans)
 
J. Michael Walsh
Chief Executive Officer
Core-Mark Holding Company, Inc.
395 Oyster Point Boulevard, Suite 415
South San Francisco, California 94080
(650) 589-9445
(Name and Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
 
Copies to:
Craig W. Adas, Esq.
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
(650) 802-3000
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
             
Large accelerated filer o   Accelerated filer þ   Non-accelerated filer o   Smaller reporting company o
        (Do not check if a smaller reporting company).    
 
CALCULATION OF REGISTRATION FEE
                                             
 
                  Proposed     Proposed        
        Amount     Maximum     Maximum        
        to be     Offering Price     Aggregate     Amount of  
  Title of Each Class of Securities to be Registered     Registered (1)(2)     Per Share     Offering Price     Registration Fee  
 
Common Stock, par value $0.01 per share
    1,115,952 shares       $27.56(3)         $30,755,637(3)         $2,193    
 
     
(1)   The amount to be registered includes (a) 659,952 shares of the Registrant’s Common Stock issuable pursuant to new awards made under the 2010 Long-Term Incentive Plan and (b) up to 456,000 shares of the Registrant’s Common Stock which could become eligible for issuance under the Registrant’s 2010 Long-Term Incentive Plan to the extent that awards outstanding under the Registrant’s 2004 and 2005 Long-Term Incentive Plans are repurchased, forfeited, expire or otherwise terminate.
 
(2)   In accordance with Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock which become issuable under the plan by reason of a stock dividend, stock split, recapitalization or other similar transaction.
 
(3)   The proposed offering price per share is estimated in accordance with Rule 457(c) and (h) based on the average of the high and low prices of the Registrant’s Common Stock traded on the NASDAQ Global Market on June 23, 2010. The offering price is estimated solely for the purpose of calculating the registration fee.
 
 

 

 


 

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information required by Part I of Form S-8 will be sent or given to plan participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be and are not filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
We will provide participants without charge, upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents are incorporated by reference in this Section 10(a) Prospectus). We will also provide, without charge, upon written or oral request, other documents required to be delivered to eligible employees pursuant to Rule 428(b) or additional information about the 2010 Long-Term Incentive Plan (the “Plan”) and the Plan’s administrators. If you would like any of those documents or information, please contact:
Core-Mark Holding Company, Inc.
Investor Relations
395 Oyster Point Boulevard, Suite 415
South San Francisco, California 94080
(650) 589-9445
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Core-Mark Holding Company, Inc. (the “Registrant”) are incorporated herein by reference:
  (i)   The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed on March 12, 2010, containing audited financial statements for the Registrant’s latest fiscal year.
 
  (ii)   All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than information contained in Current Reports on Form 8-K that is deemed furnished and not filed), since the end of the fiscal year covered by the annual report referred to in (i) above, including the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, filed on May 6, 2010.
 
  (iii)   The descriptions of the Registrant’s Common Stock which is contained in the Registrant’s Form 10, including any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement 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 a part hereof from the date of filing of such documents.

 

 


 

Any statement contained in a document incorporated by reference herein 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 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
We have adopted provisions in our certificate of incorporation that limit the liability of our directors for monetary damages for breach of their fiduciary duty as directors, except for liability that cannot be eliminated under the Delaware General Corporation Law. Delaware law provides that directors of a company will not be personally liable for monetary damages for breach of their fiduciary duty as directors, except for liabilities: for any breach of their duty of loyalty to us or our stockholders; for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; for unlawful payment of dividend or unlawful stock repurchase or redemption as provided under Section 174 of the Delaware General Corporation Law; or for any transaction from which the director derived an improper personal benefit.
Our certificate of incorporation and bylaws also provide that we will indemnify our directors and officers to the fullest extent permitted by Delaware law. Our bylaws also permit us to purchase insurance on behalf of any officer, director, employee or other agent for any liability arising out of his actions as our officer, director, employee or agent. We have entered into separate indemnification agreements with our directors and certain executive officers that could require us, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. We believe that the limitation of liability provision in our certificate of incorporation and the indemnification agreements will facilitate our ability to continue to attract and retain qualified individuals to serve as directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
       
4.1 (1)  
Certificate of Incorporation of Core-Mark Holding Company, Inc.
4.2 (2)  
Second Amended and Restated Bylaws of Core-Mark Holding Company, Inc.
4.3 (3)  
2010 Long-Term Incentive Plan.
5.1    
Opinion of Weil, Gotshal & Manges LLP (filed herewith).
23.1    
Consent of Deloitte & Touche LLP (filed herewith).
23.2    
Consent of Weil, Gotshal & Manges LLP (included in its opinion which appears as Exhibit 5.1 to this Registration Statement).
24.1    
Power of Attorney (included on the signature page to this Registration Statement and incorporated herein by reference).
 
     
(1)   Incorporated by reference to the Registrant’s Registration Statement on Form 10, filed on September 6, 2005, as amended.
 
(2)   Incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K, filed on August 18, 2008.
 
(3)   Incorporated by reference to Annex A of the Registrant’s Proxy Statement on Form DEF14A, filed on April 13, 2010.
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;

 

 


 

  (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. Notwithstanding the foregoing, any increase or decrease in the 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 the undertakings set forth in 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 Exchange Act that are incorporated by reference in this 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 undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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)   Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

 

 


 

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 South San Francisco, State of California, on June 25, 2010.
         
  CORE-MARK HOLDING COMPANY, INC.
 
 
  By:   /S/ J. MICHAEL WALSH    
  Name:   J. Michael Walsh   
  Title:   President and Chief Executive Officer   
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of J. Michael Walsh and Stacy Loretz-Congdon, or any of them, each acting alone, his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, in connection with the Registrant’s Registration Statement on Form S-8 under the Securities Act of 1933, including to sign the Registration Statement and any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully, to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or 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 date indicated.
         
Signature   Title   Date
 
       
/S/ J. MICHAEL WALSH
  President, Chief Executive Officer   June 25, 2010
         
J. Michael Walsh
  and Director (Principal Executive Officer)    
 
       
/S/ STACY LORETZ-CONGDON
  Senior Vice President and Chief Financial   June 25, 2010
         
Stacy Loretz-Congdon
  Officer (Principal Financial Officer)    
 
       
/S/ CHRISTOPHER MILLER
  Vice President and Chief Accounting Officer   June 25, 2010
         
Christopher Miller
  (Principal Accounting Officer)    
 
       
/S/ RANDOLPH I. THORNTON
  Director; Chairman of the Board   June 25, 2010
         
Randolph I. Thornton
       
 
       
/S/ ROBERT A. ALLEN
  Director   June 25, 2010
         
Robert A. Allen
       
 
       
/S/ STUART W. BOOTH
  Director   June 25, 2010
         
Stuart W. Booth
       
 
       
/S/ GARY F. COLTER
  Director   June 25, 2010
         
Gary F. Colter
       
 
       
/S/ L. WILLIAM KRAUSE
  Director   June 25, 2010
         
L. William Krause
       
 
       
/S/ HARVEY L. TEPNER
  Director   June 25, 2010
         
Harvey L. Tepner
       
 
       

 

 


 

EXHIBIT INDEX
         
  4.1 (1)  
Certificate of Incorporation of Core-Mark Holding Company, Inc.
  4.2 (2)  
Second Amended and Restated Bylaws of Core-Mark Holding Company, Inc.
  4.3 (3)  
2010 Long-Term Incentive Plan.
  5.1    
Opinion of Weil, Gotshal & Manges LLP (filed herewith).
  23.1    
Consent of Deloitte & Touche LLP (filed herewith).
  23.2    
Consent of Weil, Gotshal & Manges LLP (included in its opinion which appears as Exhibit 5.1 to this Registration Statement).
  24.1    
Power of Attorney (included on the signature page to this Registration Statement and incorporated herein by reference).
 
     
(1)   Incorporated by reference to the Registrant’s Registration Statement on Form 10, filed on September 6, 2005, as amended.
 
(2)   Incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K, filed on August 18, 2008.
 
(3)   Incorporated by reference to Annex A of the Registrant’s Proxy Statement on Form DEF14A, filed on April 13, 2010.