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Registration Statement No. - ______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________
ACSYS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Georgia 58-2299173
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2000 Pennsylvania Avenue, N.W., Suite 7650
Washington, D.C. 20006
(Address of Principal Executive Offices)
ACSYS, Inc. 1997 Employee Incentive Stock Option Plan
ACSYS Resources, Inc. 1996 Equity Compensation Plan
(Full Title of the Plans)
Timothy Mann, Jr.
Chief Executive Officer
ACSYS, Inc.
2000 Pennsylvania Avenue, N.W., Suite 7650
Washington, D.C. 20006
(202) 872-0303
(Name, address, and telephone number of agent for service)
________________________________
Copies Requested to:
Glenn W. Sturm, Esq.
Charles D. Vaughn, Esq.
Nelson Mullins Riley & Scarborough, L.L.P.
999 Peachtree Street, N.E., Suite 1400
Atlanta, Georgia 30309
(404) 817-6000
(404) 817-6050 (Fax)
________________________________
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<CAPTION>
====================================================================================================================
Title of Each Class Proposed Maximum Proposed Maximum
of Securities to be Amount to be Offering Price Aggregate Offering Amount of
Registered Registered(1) per Share Price Registration Fee
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 666,920 $12.38(1) $ 8,256,470(1) $2,435.66
- --------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 135,198 $ 8.00(2) $ 1,081,584 $ 319.07
- --------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 1,197,882 $ 8.50(2) $10,181,997 $3,003.69
- --------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 109,622 $ 2.66(2) $ 291,595(2) $ 86.02
- --------------------------------------------------------------------------------------------------------------------
Total 2,109,622 $19,813,586 $5,844.44
====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457 (c) and (h) on the basis of the average of the high
and low prices of the Company's Common Stock on February 12, 1997, as
reported by the National Association of Securities Dealer's automated
quotation system.
(2) In accordance with Rule 457(h), the registration fee is based upon the
price at which the options may be exercised.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are hereby incorporated by reference into this
registration statement ("Registration Statement"), and 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")
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:
(a) the Company's Prospectus filed on February 6, 1998 with the
Securities and Exchange Commission (the "Commission") pursuant to
Rule 424(b) (the "424(b) Prospectus," which is included within the
Company's Registration Statement on Form S-1) promulgated by the
Commission under the Securities Act of 1933, as amended (the
"Securities Act"); and
(b) the description of the Company's Common Stock contained in the
section titled "Description of Capital Stock" on pages 45-47 of the
424(b) Prospectus, which description is also incorporated by
reference into the Company's Registration Statement on Form 8-A
under the Exchange Act.
ITEM 4. DESCRIPTION OF SECURITIES.
No response is required to this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No response is required to this item.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation eliminate, subject to certain
limited exceptions, the personal liability of a director to the Company or its
shareholders for monetary damage for any breach of duty as a director. There is
no elimination of liability for (i) a breach of duty involving appropriation of
a business opportunity of the Company; (ii) an act or omission which involves
intentional misconduct or a knowing violation of law; (iii) any transaction from
which the director derives an improper personal benefit; or (iv) as to any
payments of a dividend or any other type of distribution that is illegal under
Section 14-2-832 of the Georgia Business Corporation Code (the "GBCC"). In
addition, if at any time the GBCC is amended to authorize further elimination or
limitation of the personal liability of a director, then the liability of each
director of the Company shall be eliminated or limited to the fullest extent
permitted by such provisions, as so amended, without further action by the
shareholders, unless the provisions of the GBCC require such action. The
provision does not limit the right of the Company or its shareholders to seek
injunctive or other equitable relief not involving payments in the nature of
monetary damages.
The Company's bylaws contain certain provisions which provide
indemnification to directors of the Company that is broader than the protection
expressly mandated in Sections 14-2-852 and 14-2-857 of the GBCC. To the extent
that a director or officer of the Company has been successful, on the merits or
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otherwise, in the defense of any action or proceeding brought by reason of the
fact that such person was a director or officer of the Company, Sections 14-2-
852 and 14-2-857 of the GBCC would require the Company to indemnify such persons
against expenses (including attorney's fees) actually and reasonably incurred in
connection therewith. The GBCC expressly allows the Company to provide for
greater indemnification rights to its officers and directors, subject to
shareholder approval.
The indemnification provisions in the Company's bylaws require the Company
to indemnify and hold harmless any director who was or is a party or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding whether civil, criminal, administrative or investigative
(including any action or suit by or in the right of the Company) because he or
she is or was a director of the Company, against expenses (including, but not
limited to, attorney's fees and disbursements, court costs and expert witness
fees), and against judgments, fines, penalties, and amounts paid in settlement
incurred by him or her in connection with the action, suit or proceeding.
Indemnification would be disallowed under any circumstances where
indemnification may not be authorized by action of the Board of Directors, the
shareholders or otherwise. The Board of Directors of the Company also has the
authority to extend to officers, employees and agents the same indemnification
rights held by directors, subject to all the accompanying conditions and
obligations. Indemnified persons would also be entitled to have the Company
advance expenses prior to the final disposition of the proceeding. If it is
ultimately determined that they are not entitled to indemnification, however,
such amounts would be repaid.
The Company has entered into separate indemnification agreements with each
of its directors and executive officers, whereby the Company 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 also provide that the Company shall purchase and maintain
liability insurance for the benefit of its directors and executive officers.
These agreements may not be abrogated by action of the shareholders. There is no
pending litigation or proceeding involving a director, officer, employee or
other agent of the Company as to which indemnification is being sought, nor is
the Company aware of any pending or threatened litigation that may result in
claims for indemnification by any director, officer, employee or other agent.
The Company has also agreed to hold the shareholders harmless from, against and
in respect of federal income tax liabilities, including interest and penalties
imposed thereon (and any state and local income tax liabilities as provided by
applicable law), if any, incurred by the shareholders as a result of a final
determination of an adjustment (by reason of an amended return, claim for
refund, audit, judicial decision or otherwise) to the taxable income of the
Company for any period which results in a decrease for any period in the
Company's taxable income and a corresponding increase for any period in the
taxable income of the shareholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement:
Exhibit
Number Description of Exhibit
-------- ----------------------
5.1 Legal opinion of Nelson Mullins Riley & Scarborough, L.L.P.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Nelson Mullins Riley & Scarborough, L.L.P.
(contained in their opinion filed as Exhibit 5.1).
24 Power of Attorney (contained on the signature pages of this
Registration Statement).
Item 9. UNDERTAKINGS.
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:
(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 the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in aggregate, represent a fundamental change in the information
set forth in this 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 and 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;
(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 the undertakings set forth in paragraph (i)
-------- -------
and (ii) above 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 Company pursuant to Section 13(a) or 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
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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.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's Annual Report
pursuant to Section 13(a) or 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.
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 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 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 and will be governed by the final adjudication of such issue.
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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 Atlanta, State of Georgia, on this 17th day of
February, 1998.
ACSYS, INC.
By: /s/ Timothy Mann, Jr.
------------------------
Timothy Mann, Jr.
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of ACSYS, Inc. (the "Company"), a Georgia corporation, for himself and
not for one another, does hereby constitute and appoint David C. Cooper, Edward
S. Baumstein, and Timothy Mann, Jr., and each of them, a true and lawful
attorney in his name, place and stead, in any and all capacities, to sign his
name to any and all amendments, including post-effective amendments, to this
Registration Statement, and to sign a Registration Statement pursuant to Section
462(b) of the Securities Act of 1933, and to cause the same (together with all
Exhibits thereto) to be filed with the Securities and Exchange Commission,
granting unto said attorneys and each of them full power and authority to do and
perform any act and thing necessary and proper to be done in the premises, as
fully to all intents and purposes as the undersigned could do if personally
present, and each of the undersigned for himself hereby ratifies and confirms
all that said attorneys or any one of them shall 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.
SIGNATURES TITLE DATE
- ---------- ----- ----
/s/ David C. Cooper Chairman of the Board February 17, 1998
- -------------------------- of Directors
David C. Cooper
/s/ Timothy Mann, Jr. Chief Executive Officer and February 17, 1998
- -------------------------- Director (Principal Executive
Timothy Mann, Jr. Officer)
/s/ Edward S. Baumstein President, Chief Operating February 17, 1998
- -------------------------- Officer and Director
Edward S. Baumstein
/s/ Beth Monroe-Chase Chief Development Officer, February 17, 1998
- -------------------------- Executive Vice President
Beth Monroe-Chase and Director
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/s/ Lester E. Gallagher, III Chief Financial Officer February 17, 1998
- ----------------------------- (Principal Financial and
Lester E. Gallagher, III Accounting Officer)
/s/ Barry M. Abelson Director February 17, 1998
- -----------------------------
Barry M. Abelson
/s/ John R. Ficquette Director February 17, 1998
- -----------------------------
John Ficquette
Director February __, 1998
- -----------------------------
William Porter Payne
/s/ Harry J. Sauer Director February 17, 1998
- -----------------------------
Harry J. Sauer
/s/ Mark E. Strassman Director February 17, 1998
- --------------------------
Mark E. Strassman
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EXHIBIT INDEX
Exhibit
Number Exhibit
- ------- -------
5.1 - Legal opinion of Nelson Mullins Riley & Scarborough, L.L.P.
23.1 - Consent of Arthur Andersen LLP
23.2 - Consent of Nelson Mullins Riley & Scarborough, L.L.P.
(contained in their opinion filed as Exhibit 5.1)
24 - Power of Attorney (contained on the signature pages of this
Registration Statement).
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EXHIBIT 5.1
[LETTERHEAD OF NELSON MULLINS RILEY & SCARBOROUGH, L.L.P. APPEARS HERE]
February 17, 1998
ACSYS, Inc.
2000 Pennsylvania Avenue, N.W.
Suite 7650
Washington, D.C. 20006
Ladies and Gentlemen:
We have acted as counsel to ACSYS, Inc. (the "Company") in connection
with the filing of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, covering the offering of up to
2,109,622 shares (the "Shares") of the Company's Common Stock, no par value per
share, that may be issued pursuant to the ACSYS, Inc. Amended and Restated 1997
Stock Option Plan and the Acsys Resources, Inc. 1996 Equity Compensation Plan
(together, the "Plans"). In connection therewith, we have examined such
corporate records, certificates of public officials and other documents and
records as we have considered necessary or proper for the purpose of this
opinion.
The opinion is limited by and is in accordance with, the January 1,
1992, edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal considerations which
we deem relevant, we are of the opinion that the Shares covered by the
Registration Statement, which may be issued pursuant to the Plans, will, when
issued in accordance with the Plans, be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Nelson Mullins Riley & Scarborough, L.L.P.
Nelson Mullins Riley & Scarborough, L.L.P.
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EXHIBIT 23.1
[LETTERHEAD OF ARTHUR ANDERSEN LLP APPEARS HERE]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this S-8 Registration Statement of our report dated November 14,
1997, included in ACSYS Inc.'s Form S-1 Registration Statement (File No.
333-38465) and to all references to our Firm included in this Registration
Statement.
/s/ Arthur Andersen LLP
Philadelphia, Pa.
February 17, 1998
