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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): May 25, 2000
ACSYS, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Georgia 000-23711 58-2299173
(STATE OR OTHER JURISDICTION (COMMISSION FILE NUMBER) (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
75 14th Street
Suite 2200
Atlanta, Georgia 30309
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (404) 817-9440
N/A
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 1: CHANGES IN CONTROL OF THE REGISTRANT
On May 25, 2000, Platform Purchaser Inc., a Georgia corporation (the
"Purchaser") and a wholly owned subsidiary of Tiberia B.V., a company organized
under the laws of the Netherlands ("Tiberia") which is indirectly owned by
Vedior N.V., a company organized under the laws of the Netherlands ("Vedior"),
and ING Bank Corporate Investments B.V., an investment company organized under
the laws of the Netherlands ("ING") and an indirect subsidiary of ING Groep
N.V., a holding company organized under the laws of the Netherlands with
subsidiaries primarily engaged in financial services, accepted for payment at a
price of $5.00 per share 14,186,892 shares of the Registrant's common stock, no
par value per share (including the associated series A junior participating
preferred stock purchase rights, the "Shares"), which were validly tendered and
not properly withdrawn pursuant to the tender offer commenced on April 27, 2000
by the Purchaser (the "Tender Offer"). Such number of shares equaled
approximately 97.8% of the Registrant's outstanding Shares. The Tender Offer
expired at 12:00 midnight, New York City time, on Wednesday, May 24, 2000.
The Purchaser provided for a subsequent offering period which expired at
5:00 p.m., New York City time, on Thursday, June 8, 2000.
The Tender Offer was made pursuant to an Agreement and Plan of Merger,
dated as of April 16, 2000 (the "Merger Agreement"), by and among Tiberia, the
Purchaser, Vedior, Select Appointments North America Inc., a Delaware
corporation ("SANA") and a wholly owned subsidiary of Vedior, and the
Registrant.
The Merger Agreement provides that, following consummation of the
Tender Offer and satisfaction of the other conditions set forth in the Merger
Agreement, and in accordance with the relevant provisions of the Georgia
Business Corporations Code (the "GBCC") and Federal securities laws, the
Purchaser shall be merged with and into the Registrant (the "Merger"). The
Registrant will survive the Merger as a wholly owned subsidiary of Tiberia. In
the Merger, any remaining Shares will cease to be outstanding and, except for
Shares held by shareholders of the Registrant who perfect their dissenters'
rights under the GBCC, will be converted into the right to receive cash in the
amount of $5.00 per Share. The Registrant's board of directors (the "Board") has
previously approved the Merger and the Merger Agreement. As a result of the
Tender Offer, the affirmative vote of shareholders of the Registrant is not
required to approve the Merger. Pursuant to the authority contained in the
Merger Agreement, the parties thereto have agreed that the Merger shall occur no
later then June 30, 2000.
SOURCE OF FUNDS
The Purchaser has advised the Registrant that the source of funds for
the Tender Offer, the Merger, and related fees and expenses will come from the
following financing arrangements. Immediately prior to the Purchaser's purchase
of Shares pursuant to the Tender Offer, the Purchaser became a wholly owned
subsidiary of Tiberia, the common equity of which is owned
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by Vedior Holding B.V. ("Vedior Holding"), a subsidiary of Vedior, and the
preferred equity of which is owned by Entero B.V. ("Entero"), a subsidiary of
ING. In connection with these financing arrangements, (i) the Purchaser has
incurred indebtedness owed to Tiberia in the amount of approximately $40 million
and the Purchaser has issued its common shares to Tiberia for consideration of
approximately $40 million, with the aggregate proceeds of such transactions
being used to purchase the Shares pursuant to the Tender Offer, (ii) Tiberia has
incurred indebtedness owed to Entero in the amount of approximately $40 million
and (iii) Vedior Holding has purchased all of Tiberia's outstanding common
shares in consideration of approximately $13 million and Entero has obtained $27
million of Tiberia's preferred equity. The indebtedness owed by Tiberia to
Entero and the Tiberia preferred equity owned by Entero are exchangeable into
depositary receipts in respect of Vedior common shares at a fixed exchange rate,
with a mandatory exchange to occur at such fixed exchange rate if the market
price of depositary receipts in respect of Vedior common shares equals or
exceeds a certain value for at least 60 consecutive trading days. After five
years, Vedior may purchase such exchangeable Tiberia indebtedness and preferred
equity for the amount originally paid for them by Entero (together with any
accrued and unpaid interest or dividends thereon, respectively, their "original
cost"). If Vedior does not make such purchase, the holder of such exchangeable
Tiberia indebtedness and preferred equity may (i) exchange its holdings at their
original cost for depositary receipts in respect of Vedior common shares at
their then current market prices or (ii) cause Tiberia to sell its shares of the
Purchaser's (which, pursuant to the Merger, will have become the Registrant's)
common stock, and (a) repay the exchangeable debt at its original cost out of
the proceeds of such sale, (b) apply the proceeds of such sale against payment
of the original cost of Tiberia's preferred equity to the holder thereof and (c)
distribute any remaining excess proceeds to Tiberia for distribution to the
holder of Tiberia's common shares. The holder of such Tiberia exchangeable debt
also has the option to receive payment in depositary receipts in respect of
Vedior common shares, in lieu of cash, upon the acceleration of amounts owed
under such exchangeable debt if an event of default thereunder has occurred and
is continuing.
The exchangeable indebtedness owed by Tiberia to Entero is unsecured,
bearing interest at a rate of 9.5% per annum and maturing on June 30, 2005. Each
of the approximately 30 million shares of the preferred equity of Tiberia held
by Entero is entitled to annually receive a preferred dividend equal to 8.0% of
its Euro 1 par value. The indebtedness owed by the Purchaser to Tiberia is
unsecured, bearing interest at a rate equal to the interest rate payable on the
indebtedness owed by Tiberia to Entero described above plus 0.2% and maturing
two business days before such exchangeable indebtedness owed by Tiberia to
Entero will mature.
The foregoing description is qualified in its entirety by reference to
(i) the Agreement in Principle between ING and VHBV relating to the Acquisition
of Acsys, Inc., a copy of which was filed as Exhibit (b)(1) to the Tender Offer
Statement on Schedule TO filed by Vedior, Tiberia and the Purchaser with the
Securities and Exchange Commission on April 27, 2000 (the
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"Schedule TO"), and (ii) the forms of the following documents, copies of which
were filed as Exhibits (b)(2)-(b)(7) to Amendment No. 2 to the Schedule TO filed
on May 17, 2000: (a) Amendment to the Agreement in Principle between ING and
VHBV relating to the Acquisition of Acsys, Inc., among ING, Vedior Holding and
Vedior; (b) Exchangeable Loan Agreement among Entero, Tiberia and Vedior; (c)
Loan Agreement between Tiberia and the Purchaser; (d) Articles of Association of
Tiberia; (e) Share Exchange Agreement among Entero, Vedior Holding and Vedior;
and (f) Shareholders Agreement between Entero and Vedior Holding. Each of the
foregoing documents should be read in its entirety for a more complete
description of the matters summarized above.
OFFICERS AND DIRECTORS OF THE REGISTRANT
The Merger Agreement provides that, promptly upon the acceptance for
payment of, and the payment by the Purchaser for, any Shares pursuant to the
Tender Offer, Tiberia shall be entitled to designate such number of directors
(the "Designees"), rounded up to the next whole number, on the Board as is equal
to the product of the total number of directors on the Board multiplied by the
percentage that the number of Shares so accepted for payment bears to the total
number of Shares outstanding. The Merger Agreement provides further that the
Registrant will, upon request of Tiberia, use its reasonable efforts either to
increase the size of the Board or secure the resignations of such number of
directors, or both, as is necessary to enable the Designees to be elected to the
Board, subject to Section 14(f) of the Securities Exchange Act and Rule 14f-1
promulgated thereunder. Notwithstanding the foregoing, there will be until the
effective time of the Merger at least three members of the Board who were
directors on the date of the Merger Agreement and who would constitute
"continuing directors" within the meaning of Section 14-2-1110(b) of the GBCC.
On May 26, 2000, acting by unanimous written consent of the Board: (i)
the size of the Board was increased from seven directors to nine directors; (ii)
the Registrant accepted the resignations of the following directors: David C.
Cooper, Harry J. Sauer and Brady W. Mullinax, Jr.; and (iii) the following five
Designees were elected to the Board: Rene den Hertog, James King, Tony Martin,
C. K. Zachary Miles and Arnold Joannes Marie van der Ven, in each case effective
upon the date of the acceptance for payment of, and the payment by the Purchaser
for, any Shares pursuant to the Tender Offer, each to hold terms expiring at the
Registrant's 2000 annual meeting (which 2000 annual meeting has been
postponed indefinitely).
ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS
No financial statements are required to be filed as part of this
Report. The following exhibits are filed as part of this Report.
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EXHIBIT NO. DESCRIPTION
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2.1 Agreement and Plan of Merger, dated as of April 16,
2000, by and among Tiberia, the Purchaser, Vedior,
SANA and the Registrant (incorporated by reference
to Exhibit 2.1 to the Registrant's Form 8-K filed
on April 18, 2000).
10.1 Agreement in Principle between ING and VHBV
Relating to the Acquisition of Acsys, Inc., dated
as of April 13, 2000, among ING, Vedior Holding and
Vedior (incorporated by reference to Exhibit (b)(1)
to the Schedule TO filed by Vedior, Tiberia and the
Purchaser on April 27, 2000).
10.2 Form of the Amendment to the Agreement in Principle
between ING and VHBV relating to the Acquisition of
Acsys, Inc., among ING, Vedior Holding and Vedior
(incorporated by reference to Exhibit (b)(2) to
Amendment No. 2 to the Schedule TO filed by Vedior
on May 17, 2000).
10.3 Form of the Exchangeable Loan Agreement, among
Entero, Tiberia and Vedior (incorporated by
reference to Exhibit (b)(3) to Amendment No. 2 to
the Schedule TO filed by Vedior on May 17, 2000).
10.4 Form of the Loan Agreement between Tiberia and the
Purchaser (incorporated by reference to Exhibit
(b)(4) to Amendment No. 2 to the Schedule TO filed
by Vedior on May 17, 2000).
10.5 Form of the Articles of Association of Tiberia
(incorporated by reference to Exhibit (b)(5) to
Amendment No. 2 to the Schedule TO filed by Vedior
on May 17, 2000).
10.6 Form of the Share Exchange Agreement among Entero,
Vedior Holding and Vedior (incorporated by
reference to Exhibit (b)(6) to Amendment No. 2 to
the Schedule TO filed by Vedior on May 17, 2000).
10.7 Form of the Shareholders Agreement between Entero
and Vedior Holding (incorporated by reference to
Exhibit (b)(7) to Amendment No. 2 to the Schedule
TO filed by Vedior on May 17, 2000).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
ACSYS, INC.
By: /s/ Brady W. Mullinax, Jr.
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Brady W. Mullinax, Jr.
Executive Vice President - Finance and
Administration, Chief Financial Officer
and Secretary
Dated: June 9, 2000
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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2.1 Agreement and Plan of Merger, dated as of April 16,
2000, by and among Tiberia, the Purchaser, Vedior,
SANA and the Registrant (incorporated by reference
to Exhibit 2.1 to the Registrant's Form 8-K filed
on April 18, 2000).
10.1 Agreement in Principle between ING and VHBV
Relating to the Acquisition of Acsys, Inc., dated
as of April 13, 2000, among ING, Vedior Holding and
Vedior (incorporated by reference to Exhibit (b)(1)
to the Schedule TO filed by Vedior, Tiberia and the
Purchaser on April 27, 2000).
10.2 Form of the Amendment to the Agreement in Principle
between ING and VHBV relating to the Acquisition of
Acsys, Inc., among ING, Vedior Holding and Vedior
(incorporated by reference to Exhibit (b)(2) to
Amendment No. 2 to the Schedule TO filed by Vedior
on May 17, 2000).
10.3 Form of the Exchangeable Loan Agreement, among
Entero, Tiberia and Vedior (incorporated by
reference to Exhibit (b)(3) to Amendment No. 2 to
the Schedule TO filed by Vedior on May 17, 2000).
10.4 Form of the Loan Agreement between Tiberia and the
Purchaser (incorporated by reference to Exhibit
(b)(4) to Amendment No. 2 to the Schedule TO filed
by Vedior on May 17, 2000).
10.5 Form of the Articles of Association of Tiberia
(incorporated by reference to Exhibit (b)(5) to
Amendment No. 2 to the Schedule TO filed by Vedior
on May 17, 2000).
10.6 Form of the Share Exchange Agreement among Entero,
Vedior Holding and Vedior (incorporated by
reference to Exhibit (b)(6) to Amendment No. 2 to
the Schedule TO filed by Vedior on May 17, 2000).
10.7 Form of the Shareholders Agreement between Entero
and Vedior Holding (incorporated by reference to
Exhibit (b)(7) to Amendment No. 2 to the Schedule
TO filed by Vedior on May 17, 2000).
