<PAGE>
As filed with the Securities and Exchange Commission on December 20, 2000
Registration No. 333-
=====================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under The Securities Act of 1933
COMFORCE Corporation
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Delaware 7361 36 - 2262248
--------------------------------- ---------------------------- ----------------------------------
<S> <C> <C>
(State or other jurisdiction (Primary Standard Industrial (I.R.S Employer Identification No.)
of incorporation or organization) Classification Code Number)
</TABLE>
____________________
COMFORCE Corporation
415 Crossways Park Drive
P.O. Box 9006
Woodbury, New York 11797
(516) 437-3300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
____________________
Harry Maccarrone
Executive Vice President
COMFORCE Corporation
415 Crossways Park Drive
P.O. Box 9006
Woodbury, New York 11797
(516) 437-3300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
____________________
Copy to:
David G. Edwards, Esquire
Doepken Keevican & Weiss Professional Corporation
58th Floor, USX Tower
600 Grant Street
Pittsburgh, Pennsylvania 15219-2703
(412) 355-2600
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
____________________
<PAGE>
(Cover page continued)
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement as determined by market conditions and other factors.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ X ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Class Amount to be Proposed Maximum Proposed Maximum Amount of
of Securities to be Registered (1) Offering Price Per Aggregate Offering Registration
Registered Share (2) Price (2) Fee
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 555,628 $1.69 $939,012 $601.00
=============================================================================================================
</TABLE>
(1) Includes certain shares of common stock of COMFORCE Corporation issuable
pursuant to the terms of a contract entered with COMFORCE.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices of
COMFORCE's shares of common stock traded on the American Stock Exchange
within five business days prior to the filing of this registration
statement. The per share price of $1.69 represents such average on December
15, 2000, a date within five business days prior to the filing of this
registration statement.
COMFORCE hereby amends this Registration Statement on such date or dates as may
be necessary to delay its effective date until COMFORCE shall file a further
amendment which specifically states that this Registration Statement shall
thereafter become effective in accordance with section 8(a) of the Securities
Act of 1933, or until the Registration Statement shall become effective on such
date as the Commission, acting pursuant to said section 8(a), may determine.
<PAGE>
Subject to Completion Dated December 20, 2000
PROSPECTUS
COMFORCE Corporation
555,628 Shares of Common Stock
This prospectus relates to 555,628 shares of common stock of COMFORCE
Corporation that may be sold from time to time by the selling stockholders named
in this prospectus. These shares are issuable to the selling stockholders upon
the exercise by them of options they received in connection with their
settlement of litigation with COMFORCE.
The common stock is traded on the American Stock Exchange under the symbol
CFS. On December 15, 2000, the last reported sale price of the common stock on
the American Stock Exchange was $1.75 per share.
Investing in the common stock involves certain risks. You should carefully
consider the risk factors beginning on page 2. Neither the Securities and
Exchange Commission nor any state securities commission has approved or
disapproved of these securities or determined that this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
COMFORCE Corporation
415 Crossways Park Drive
P.O. Box 9006
Woodbury, New York 11797
(516) 437-3300
The date of this Prospectus is _________, 2000.
<PAGE>
TABLE OF CONTENTS
Page
Risk Factors............................................................. 2
Where You Can Find More Information...................................... 7
The Company.............................................................. 7
Use of Proceeds.......................................................... 9
Selling Stockholders..................................................... 9
Method of Sale........................................................... 9
Legal Matters............................................................ 10
Experts.................................................................. 10
RISK FACTORS
Before you invest in the common stock, you should consider carefully the
following factors, in addition to the other information contained in this
prospectus. In addition to historical information, this prospectus contains
forward-looking statements that involve risks and uncertainties. Our actual
results could differ materially from those projected or suggested in any
forward-looking statement. The factors discussed below and the other factors
discussed in this prospectus could cause or contribute to such differences.
Other factors which we have not yet identified could also cause or contribute to
such differences.
Our share price has been volatile and could be further impacted by the shares
offered in this offering.
From time to time, the market price for our common stock has been, and may
continue to be, volatile. The market price may fluctuate because of our
quarterly operating results, the operating results of other staffing companies,
changes in general conditions in the economy, the financial markets or the
staffing industry, natural disasters or other developments. In addition, in
recent years the stock market has experienced extreme price and volume
fluctuations. This volatility has had a significant effect on the market prices
of securities issued by many companies for reasons unrelated to their operating
performance.
In addition, a substantial number of shares of our common stock is being
offered for resale as a part of this offering. The sale of a substantial number
of shares of our common stock in the public market could cause the market price
of our common stock to decline.
Our high level of debt could adversely affect our ability to compete, limit our
ability to borrow and heighten our vulnerability to adverse economic conditions.
We have a very high level of debt. Our level of debt could have important
consequences to you, including the following:
. we will have to use a substantial portion of our cash flow from operations to
pay for debt service, rather than for operations or growth;
. our competitors with less debt could have a competitive advantage;
. we could be more vulnerable to economic downturns and less able to take
advantage of significant business opportunities or react to changes in market
or industry conditions;
. we will be vulnerable to increases in interest rates to the extent of
borrowings under our bank credit facility; and
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. we may have to dispose of material assets or operations or refinance our debt
to meet our debt service obligations.
Our failure to generate sufficient cash flows to support our amortization
charges could require a write-off that adversely affects our financial condition
and results of operations.
More than 50% of our total assets are intangible assets. These intangible
assets substantially represent amounts attributable to goodwill recorded in
connection with our acquisitions and are generally amortized over a five to 40
year period. This amortization results in significant annual charges. Various
factors could impact our ability to generate the cash flows necessary to support
this amortization schedule, including
. fluctuations in the economy;
. the degree and nature of competition;
. demand for our services; and
. our ability to integrate the operations of acquired businesses, to recruit
and place staffing professionals and to maintain gross margins in the face of
pricing pressures.
If we fail to generate sufficient cash flows to support the amortization
charge, an impairment of the asset may occur. The resulting write-off could
have a material adverse effect on our business, financial condition and results
of operations.
The terms of the agreements governing our debt could constrain us in our
operations and in pursuing corporate opportunities.
The agreements governing the public debt obligations of our COMFORCE
Operating, Inc. subsidiary, and the credit facility to which we and our
subsidiaries are parties, contain restrictions that affect our ability to incur
debt, make distributions, make acquisitions, create liens, make capital
expenditures and affiliate payments and pay dividends. They also require us to
limit our capital expenditures, affiliate payments and dividends. In addition,
our credit facility requires us to meet specified financial ratios and tests.
Events beyond our control may affect our ability to comply with these
covenants and restrictions, and we may not achieve operating results that will
comply with the financial ratios and tests. If we do not comply with these
covenants and restrictions, an event of default could occur. An event of
default under any of our financing agreements could have a material adverse
effect on our business and financial condition if it is not cured or waived.
We may be unable to charge our customers for higher costs of employing staffing
personnel.
We must pay unemployment insurance premiums and workers' compensation
benefits for our billable employees. The states in which our employees perform
services set unemployment insurance premiums annually. These premiums could
increase for various reasons, including increased levels of unemployment and the
lengthening of periods for which unemployment compensation is available.
Workers' compensation costs may increase if the various states in which we
conduct operations raise their required levels of compensation or liberalize
allowable claims. We are focusing on efforts to reduce our potential exposure to
such claims. We are largely self-insured with respect to workers' compensation
claims, but we maintain an umbrella insurance policy limiting our exposure for
self-insured claims to $250,000 per claim and a total of $2.9 million in any
year. However, we may incur costs related to workers' compensation claims at
rates higher than anticipated if we experience an increase in the number or the
severity of claims.
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Our costs could also increase as the result of any future health care
reforms. Certain federal and state legislative proposals have included
provisions extending health insurance benefits to billable employees who do not
presently receive such benefits.
We may not be able to increase the fees charged to our customers to an
amount sufficient to cover increased costs related to workers' compensation,
unemployment insurance and health care reforms or other employment-related
regulatory changes.
We have incurred losses in two of the last three years and we may continue to
incur losses.
On a historical basis, we had net losses in two of the last three fiscal
years. We had net losses of $2.0 million for 1999 and $3.7 million for 1997
and net income of $0.8 million for 1998. In addition, we had a net loss before
extraordinary gains of $952,000 for the nine months ended September 30, 2000.
Our operations may not be profitable in the future.
We could face liability for the misconduct of our employees or for claims made
by them in the workplace.
Contingent staffing and consulting firms are in the business of employing
people and placing them in the workplaces of other businesses. A risk of such
activity includes possible claims by our customers of employee misconduct or
negligence, claims of discrimination or harassment, claims relating to
employment of illegal aliens and other similar claims. We have implemented
policies and guidelines to minimize our exposure to these risks. However,
failure to follow these policies and guidelines may result in negative
publicity. In addition, we could be required to pay money damages or fines.
Although historically we have not had any significant problems in this area, we
may experience such problems in the future.
We are also exposed to liability for actions taken by our employees while
on assignment, such as damage caused by their errors, misuse of customer
proprietary information or theft of customer property. We maintain insurance to
limit our exposure to these risks. However, because of the nature of our
assignments, in particular the access of our employees to customer information
systems and confidential information, and the potential liability for improper
acts by employees, insurance coverage may not continue to be available or may
not be adequate to cover any such liability.
Fluctuations in the general economy could reduce demand for our services.
The general level of economic activity in the country significantly affects
demand for staffing and consulting services. Companies use staffing and
consulting services to manage personnel costs and changes in staffing needs, in
part due to business fluctuations. When economic activity increases, employers
often add employees from staffing and consulting companies before they hire
full-time employees. During such times, there is intense competition among
staffing and consulting companies for qualified personnel for placement, and we
may not be able to recruit and retain sufficient personnel to meet the needs of
our clients. Conversely, as economic activity slows, companies may choose to
reduce their usage of employees from staffing and consulting companies before
laying off their regular employees.
Heightened competition for staffing personnel and customers could adversely
impact our business.
The contingent staffing and consulting industry is highly competitive.
Heightened competition for customers as well as for contingent personnel could
adversely impact our business in several ways:
. We may need to reduce our current fee scales without being able to reduce the
personnel costs of our billable employees.
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. Large, traditional staffing companies have begun to enter the specialty
staffing and consulting sector. As a result, margins may decrease,
particularly for the less highly skilled personnel in that sector.
. Barriers to entry in the contingent staffing business are low, and we could
experience competition from additional competitors entering the business.
. We may not be able to fulfill our customers' needs because of shortages of
qualified personnel, which currently exist in some specialty sectors and
could continue to occur in the future.
. Customers could employ personnel directly (rather than using our services) to
ensure the availability of such personnel.
Some of our competitors have greater marketing, financial and personnel
resources than we do and could offer increased competition. We expect that the
level of competition will remain high in the future and that this competition
could affect our margins, which could have a material adverse effect on our
business, financial condition and results of operations.
The loss of key personnel could adversely affect our operations.
We depend in a significant way on our management. Our success depends upon
the availability and performance of John Fanning, our Chairman and Chief
Executive Officer, and Harry Maccarrone, our Executive Vice President and Chief
Financial Officer. The loss of the services of either of these key persons
could have a material adverse effect upon our operations.
Control by insiders could inhibit a third party from seeking to acquire us.
John Fanning, our Chairman and Chief Executive Officer, and Harry
Maccarrone, our Executive Vice President and Chief Financial Officer, together
currently control approximately 30% of our outstanding common stock. As a
result, they will have a significant influence on all issues submitted to our
stockholders. This concentration of ownership could limit the price that
certain investors might be willing to pay in the future for shares of our common
stock and could make it more difficult for a third party to acquire, or could
discourage a third party from attempting to acquire control of us.
Our board's ability to authorize and issue new classes of preferred stock could
be used to discourage a takeover.
Our certificate of incorporation and bylaws authorize the issuance of
preferred stock and establish advance notice requirements for director
nominations and actions to be taken at stockholder meetings. These provisions
could discourage or impede a tender offer, proxy contest or other similar
transaction involving control of COMFORCE, including transactions in which the
stockholders might otherwise receive a premium for their shares over then
current market prices and other transactions that they may deem to be in their
best interests. In particular, preferred stock
. has a preferred position over the common stock in liquidation;
. generally has the right to a fixed or minimum dividend before any dividend is
paid or accrued on the common stock;
. may have the right to approve certain extraordinary corporate matters; and
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. could contain terms that would
. delay or prevent a change in control of COMFORCE;
. make removal of our present management more difficult;
. restrict the payment of dividends and other distributions to the holders
of common stock; and
. make it more difficult for a hostile acquiror to gain control of COMFORCE.
Our business is dependent on our ability to attract staffing personnel.
Our business depends on our ability to attract and retain personnel who
possess the skills and experience necessary to meet the staffing and consulting
requirements of our customers. Competition for individuals with proven skills
in certain areas, particularly information technology, is intense. We compete
for such individuals with other contingent staffing and consulting firms,
systems integrators, providers of outsourcing services, computer systems
consultants, customers and personnel agencies. We must continually evaluate and
upgrade our base of available personnel to keep pace with customers' changing
needs and emerging technologies. We may not be able to continue to attract
qualified personnel in sufficient numbers and on acceptable economic terms. In
addition, although the employment agreements we have entered into contain non-
compete covenants, we may not be able to effectively enforce such agreements
against our former employees.
A significant portion of our revenues are attributable to a few key customers
the loss of which could adversely affect our operations.
As is common in the staffing industry, our engagements to provide services
to our customers are generally non-exclusive, of a short-term nature and subject
to termination by the customer with little or no notice, although some of our
business is done through long-term contracts and contracts that provide us with
the first opportunity to supply the personnel required by the customer. During
1999, our four largest customers accounted for approximately 28% of our
revenues. We also have numerous other significant customers. The loss of or a
material reduction in the revenues from any of our significant customers could
have a material adverse effect on our business, results of operations and
financial condition.
6
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You can read and copy
any document filed by us at the public reference facilities maintained by the
SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. You may request copies
of these documents, upon payment of a duplicating fee, by writing the SEC at the
address in the previous sentence. Please call the SEC at 1-800-SEC-0330 for
further information on the operation of its public reference room. Our SEC
filings are also available on the SEC's Website at "http://www.sec.gov".
The SEC allows us to incorporate by reference information from other
documents that we file with it, which means that we can disclose important
information by referring you to those documents. The information incorporated
by reference is an important part of this prospectus, and information that we
file later with the SEC will automatically update and supersede this
information. We incorporate by reference the following documents:
. Our Annual Report on Form 10-K for the year ended December 31, 1999.
. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2000.
. Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2000
. Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2000
. Our Current Report on Form 8-K dated December 19, 2000.
. The description of our common stock contained in our Form 8-A dated
October 10, 1985, as amended by Amendment No. 1 on Form 8A/A dated July 25,
1997.
. All other documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus and prior to
termination of this offering of common stock.
You may request a copy of any of these documents, except exhibits to the
documents (unless the exhibits are specifically incorporated by reference), at
no cost, by writing or telephoning us at the following address:
COMFORCE Corporation
Attention: Linda Annicelli
415 Crossways Park Drive
P.O. Box 9006
Woodbury, New York 11797
(516) 437-3300
You should rely only on the information contained in this document or that we
have referred you to. We have not authorized anyone else to provide you with
different information.
THE COMPANY
We are a leading provider of specialty staffing, consulting and outsourcing
services, primarily to Fortune 500 companies for their information technology,
telecommunications, scientific and engineering-related needs. Through a
national network of 62 offices (47 company-owned and 15 licensed), we recruit
and place highly skilled contingent personnel and provide financial and
outsourcing services for a broad customer base, including Sun Microsystems,
Bellsouth Telecommunications, Inc. and Microsoft Corporation. Since entering the
staffing services business in 1995, we have grown significantly through a
combination of acquisitions and internal growth. Our
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contingent labor force consists primarily of computer programmers, systems
consultants and analysts, engineers, technicians, scientists, researchers and
skilled office support personnel.
We operate in two business segments -- Staff Augmentation and Financial
Services. The Staff Augmentation segment provides Information Technology (IT),
Telecom and Staffing services. The Financial Services segment provides
outsourcing and consulting services. A description of the types of services
provided by each segment follows:
Staff Augmentation Segment
. Information Technology. In the IT field, we provide highly skilled
programmers, help desk personnel, systems consultants and analysts,
software engineers and project managers for a wide range of technical
assignments, including client server, mainframe, desktop services and
Internet/Intranet. In addition to these staffing services, we provide non-
recruited payrolling services to certain of our IT customers.
. Telecom. We provide skilled Telecom personnel to plan, design, engineer,
install and maintain wireless and wireline telecommunications systems,
including cellular, PCS, microwave, radio, satellite and other networks.
. Staffing. We provide Technical Staffing services for national laboratory
research in such areas as environmental safety, alternative energy source
development and laser technology, and provide highly-skilled labor meeting
diverse commercial needs in the avionics and aerospace, architectural,
automotive, energy and power, pharmaceutical, marine and petrochemical
fields. In the Professional Staffing field, we provide highly specialized
professional chemists, biologists, engineers, laboratory instrumentation
operators, technicians and others to companies involved in pharmaceutical,
environmental, biotech and processing businesses. We also recruit and train
skilled clerical personnel who provide more traditional services for
medical office, legal and accounting professionals.
Financial Services Segment
. PrO Unlimited. Through our PrO Unlimited subsidiary, we provide
confidential consulting and conversion services to companies that require
assistance in complying with regulations associated with the use of
independent contractors, returning retirees and consultants. If
appropriate, we may become the employer of some or all of these clients,
staff (on a non-recruited basis) and provide various services for these
employees, including preparing payrolls, withholding taxes and tracking
hours and vacation and sick days.
. Funding and Support Services. We provide payroll funding services and back
office support to independent consulting and staffing companies. Our back
office services include payroll processing and billing, preparation and
analysis of various management reports, payment of all federal, state and
local payroll taxes and preparation and filing of quarterly and annual
payroll tax returns for the contingent personnel employed and placed by
independently owned and operated staffing and consulting firms. In
providing payroll funding services, we purchase the accounts receivable of
independent staffing firms and receive payments directly from these firms'
clients.
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USE OF PROCEEDS
COMFORCE will not receive any of the proceeds from the sale of the shares
by the selling stockholders. However, COMFORCE will receive the amount of the
exercise price of the options if and when the options are exercised and the
shares are purchased by the selling stockholders.
SELLING STOCKHOLDERS
The security holders listed below and any permitted transferee, pledgee or
assignee of this holder named in any supplement to this prospectus are offering
for resale 555,628 shares of common stock. We undertake to file a supplement to
name as a selling stockholder any such subsequent permitted holder of these
shares of common stock. The table below sets forth information as of the date of
this prospectus concerning the beneficial ownership of common stock by each
selling stockholder named below.
<TABLE>
<CAPTION>
Before the Offering After the Offering
Shares Beneficially Percentage of Shares Beneficially Percentage of
Name of Selling Owned Beneficial Owned Beneficial
Stockholder Ownership Ownership
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Austin Iodice 370,419 (1) 2.2% (2) 0 (3) 0% (3)
Anthony Giglio 185,209 (1) 1.1% (2) 0 (3) 0% (3)
</TABLE>
(1) These shares of common stock are issuable upon the exercise of currently
exercisable options at an exercise price of $0.6625 per share, which
options expire on January 2, 2006. All of these shares are registered for
resale under the registration statement of which this prospectus is a part.
(2) As a percentage of all of our issued and outstanding shares of common stock
plus the shares issuable to the selling shareholder for whom the percentage
is calculated and for no other person.
(3) Assumes that all of the shares registered for resale will be sold as part
of this offering.
METHOD OF SALE
The selling stockholders may offer and sell the shares of common stock to
which this prospectus relates from time to time in one or more types of
transactions (which may include block transactions) on the American Stock
exchange, where our common stock is listed for trading under the symbol CFS, in
other markets where our common stock is traded, in negotiated transactions,
through put or call options transactions, through short sales transactions, or
through a combination of such methods of sale. The selling stockholders will
sell the common stock at prices which are current when the sales take place or
at other prices to which the parties agree. The selling stockholders may use
brokers or dealers to sell the shares, and will pay any brokerage fees or
commissions relating to sales in amounts to be negotiated by the parties prior
to sale. The selling stockholders and any brokers or dealers participating in
the sale of the common stock may be deemed to be underwriters within the meaning
of the Securities Act of 1933, and any discounts and commissions received by
them and any profit realized by them on the resale of the shares may be deemed
to be underwriting discounts or commissions under the Securities Act of 1933.
Some shares may also be sold by other people or entities that have received the
shares from the selling stockholders by gift, by operation of law, including the
laws of descent and distribution, or by other transfers or assignments.
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The selling stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act of
1933, provided the selling stockholders meet the criteria and conform to the
requirements of this rule.
LEGAL MATTERS
Doepken, Keevican & Weiss Professional Corporation, Pittsburgh,
Pennsylvania, will render a legal opinion on the validity of the common stock
being offered.
EXPERTS
The consolidated balance sheet of COMFORCE Corporation and Subsidiaries as
of December 31, 1999, and the related consolidated statements of operations,
changes in stockholders' equity, cash flows and financial statement schedule for
the year ended December 31, 1999 are incorporated in this prospectus and
registration statement by reference in reliance upon the report of KPMG LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of that firm as experts in accounting and auditing.
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K for the year ended December 31, 1998, have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses estimated to be incurred (other than the fees of the
Commission which are actual) in connection with the offering, all of which are
payable by COMFORCE, are as follows:
Description Amount
----------------------------------- --------------------
SEC. Registration Fee $ 601
Printing Costs 200*
Legal Fees 4,000*
Accounting Fees 4,000*
Miscellaneous 1,199*
Total $10,000*
___________
*Estimate
Item 15. Indemnification of Directors and Officers.
The Registrant's Bylaws effectively provide that the Registrant, to the
full extent permitted by Section 145 of the General Corporation Law of the State
of Delaware, as amended from time to time ("Section 145"), shall indemnify all
directors and officers of COMFORCE and may indemnify all employees,
representatives and other persons as permitted pursuant thereto.
Section 145 permits a corporation to indemnify its directors and officers
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by a third party if such directors or
officers acted in good faith and in a manner they 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 reason to believe their conduct was
unlawful. In a derivative action, indemnification may be made only for expenses
actually and reasonably incurred by directors and officers in connection with
the defense or settlement of an action or suit and only with respect to a matter
as to which they shall have acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interest of the corporation, except
that no indemnification shall be made if such person shall have been adjudged
liable to the corporation, unless and only to the extent that the court in which
the action or suit was brought shall determine upon application that the
defendant officers or directors are reasonably entitled to indemnity for such
expenses despite such adjudication of liability.
COMFORCE has entered into separate indemnification agreements with certain
of its current directors, officers and employees. COMFORCE maintains insurance
against liabilities incurred under the Securities Act of 1933 for the benefit of
its officers and directors.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers or
persons controlling COMFORCE pursuant to the foregoing provisions,
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COMFORCE has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 16. Exhibits**
2.1 Agreement and Plan of Merger, dated as of August 13, 1997, by and among
COMFORCE Corporation, COMFORCE Columbus, Inc. and Uniforce Services, Inc.
(included as an exhibit to COMFORCE Corporation's Current Report on Form
8-K dated August 20, 1997 and incorporated herein by reference).
2.2 Stockholders Agreement, dated as of August 13, 1997, by and among COMFORCE
Corporation, COMFORCE Columbus, Inc., John Fanning and Fanning Limited
Partnership, L.P. (included as an exhibit to COMFORCE Corporation's Current
Report on Form 8-K dated August 20, 1997 and incorporated herein by
reference).
2.3 Registration Rights Agreement dated as of August 13, 1997 by and among
COMFORCE Corporation, John Fanning and Fanning Asset Partners, L.P., a
Georgia limited partnership (included as an exhibit to Amendment No. 2 to
the Registration Statement on Form S-4 of COMFORCE Corporation filed with
the Commission on October 24, 1997 (Registration No. 333-35451) and
incorporated herein by reference).
3.1 Restated Certificate of Incorporation of COMFORCE Corporation, as amended
by Certificates of Amendment filed with the Delaware Secretary of State on
June 14, 1987 and February 12, 1991 (included as an exhibit to Amendment
No. 1 to the Registration Statement on Form S-1 of COMFORCE Corporation
filed with the Commission on May 10, 1996 (Registration No. 033-6043) and
incorporated herein by reference).
3.2 Certificate of Ownership (Merger) of COMFORCE Corporation into Lori
Corporation (included as an exhibit to COMFORCE Corporation's Annual Report
on Form 10-K for the year ended December 31, 1995 and incorporated herein
by reference).
3.3 Bylaws of COMFORCE Corporation, as amended and restated effective as of
February 26, 1997 (included as an exhibit to COMFORCE Corporation's Annual
Report on Form 10-K for the year ended December 31, 1996 and incorporated
herein by reference).
3.4 Certificate of Ownership (Merger) of AZATAR into COMFORCE Corporation
(included as an exhibit to COMFORCE Corporation's Current Report on Form
8-K dated November 8, 1996 and incorporated herein by reference).
3.5 Certificate of Incorporation of COMFORCE Operating, Inc., as amended by
Certificates of Amendment filed with the Delaware Secretary of State on
November 24, 1997 (included as an exhibit to the Registration Statement on
Form S-4 of COMFORCE Operating, Inc. filed with the Commission on December
24, 1997 (Registration No. 333-43341) and incorporated herein by
reference).
3.6 Bylaws of COMFORCE Operating, Inc. (included as an exhibit to the
Registration Statement on Form S-4 of COMFORCE Operating, Inc. filed with
the Commission on December 24, 1997 (Registration No. 333-43341) and
incorporated herein by reference).
4.1 Indenture dated as of November 26, 1997 with respect to 12% Senior Notes
due 2007 between COMFORCE Operating, Inc., as issuer, and Wilmington Trust
Company, as trustee (included as an exhibit to COMFORCE Corporation's
Current Report on Form 8-K dated December 9, 1997 and incorporated herein
by reference).
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<PAGE>
4.2 Indenture dated as of November 26, 1997 with respect to 15% Senior Secured
PIK Debentures due 2009 between COMFORCE Corporation, as issuer, and The
Bank of New York, as trustee (included as an exhibit to COMFORCE
Corporation's Current Report on Form 8-K dated December 9, 1997 and
incorporated herein by reference).
5.1* Opinion of Doepken Keevican & Weiss.
10.1 Loan and Security Agreement dated as of November 26, 1997 among COMFORCE
Corporation and specified subsidiaries thereof and Heller Financial, Inc.,
as lender and agent for other lenders (included as an exhibit to COMFORCE
Corporation's Current Report on Form 8-K dated December 9, 1997 and
incorporated herein by reference).
10.2 Purchase Agreement, dated as of November 19, 1997, by and between COMFORCE
Operating, Inc. and NatWest Capital Markets Limited, as Initial Purchaser
(included as an exhibit to the Registration Statement on Form S-4 of
COMFORCE Corporation filed with the Commission on December 24, 1997
(Registration No. 333-43327) and incorporated herein by reference).
10.3 Purchase Agreement, dated as of November 19, 1997, dated as of
November 26, 1997, by and between COMFORCE Corporation and NatWest Capital
Markets Limited, as Initial Purchaser (included as an exhibit to the
Registration Statement on Form S-4 of COMFORCE Corporation filed with the
Commission on December 24, 1997 (Registration No. 333-43327) and
incorporated herein by reference).
10.4 Warrant Agreement dated November 26, 1997 by and between COMFORCE
Corporation and The Bank of New York, as Warrant Agent (included as an
exhibit to the Registration Statement on Form S-4 of COMFORCE Corporation
filed with the Commission on December 24, 1997 (Registration No. 333-
43327) and incorporated herein by reference).
10.5 Pledge Agreement dated November 26, 1997 by and between COMFORCE
Corporation and The Bank of New York, as Collateral Agent (included as an
exhibit to the Registration Statement on Form S-4 of COMFORCE Corporation
filed with the Commission on December 24, 1997 (Registration No. 333-
43327) and incorporated herein by reference).
10.6 Employment Agreement dated as of January 1, 1999 between COMFORCE
Corporation, COMFORCE Operating, Inc. and John C. Fanning (included as an
exhibit to COMFORCE Corporation's Annual Report on Form 10-K for the year
ended December 31, 1998 and incorporated herein by reference).
10.7 Amendment to Employment Agreement dated March 28, 2000 amending Employment
Agreement dated as of January 1, 1999 between COMFORCE Corporation,
COMFORCE Operating, Inc. and John C. Fanning (included as an exhibit to
COMFORCE Corporation's Annual Report on Form 10-K for the year ended
December 31, 1999 and incorporated herein by reference).
10.8 Employment Agreement dated as of January 1, 1999 among COMFORCE
Corporation, COMFORCE Operating, Inc. and Harry Maccarrone (included as an
exhibit to COMFORCE Corporation's Annual Report on Form 10-K for the year
ended December 31, 1998 and incorporated herein by reference).
10.9 Loan and Security Agreement dated as of December 14, 2000 among COMFORCE
Corporation, COMFORCE Operating, Inc. and other named subsidiaries, and
IBJ Whitehall Business Credit Corporation, as lender and agent, and other
named participating lenders (included as an exhibit to COMFORCE
Corporation's Current Report on Form 8-K dated December 19, 2000 and
incorporated herein by reference).
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<PAGE>
10.10 First Supplemental Indenture dated as of November 29, 2000 between
COMFORCE Corporation and The Bank of New York, as trustee, to Indenture
dated as of November 26, 1997 lenders (included as an exhibit to COMFORCE
Corporation's Current Report on Form 8-K dated December 19, 2000 and
incorporated herein by reference).
10.11 First Supplemental Indenture dated as of November 29, 2000 between
COMFORCE Corporation and Wilmington Trust Company, as trustee, to
Indenture dated as of November 26, 1997 lenders (included as an exhibit
to COMFORCE Corporation's Current Report on Form 8-K dated December 19,
2000 and incorporated herein by reference).
10.12 Second Supplemental Indenture dated as of December 4, 2000 between
COMFORCE Corporation and The Bank of New York, as trustee, to Indenture
dated as of November 26, 1997 lenders (included as an exhibit to COMFORCE
Corporation's Current Report on Form 8-K dated December 19, 2000 and
incorporated herein by reference).
10.13 Second Supplemental Indenture dated as of December 4, 2000 between
COMFORCE Corporation and Wilmington Trust Company, as trustee, to
Indenture dated as of November 26, 1997 lenders (included as an exhibit
to COMFORCE Corporation's Current Report on Form 8-K dated December 19,
2000 and incorporated herein by reference).
21.1* List of Subsidiaries.
23.1* Consent of KPMG LLP.
23.2* Consent of PricewaterhouseCoopers, LLP
23.3 Consent of Doepken Keevican & Weiss (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
24.1* Powers of Attorney.
__________________________
* Filed herewith.
** For documents incorporated herein by reference to exhibits included in SEC
filings of COMFORCE Corporation, the registration number for COMFORCE
Corporation is, unless otherwise noted, 001-06801.
Item 17. Undertakings.
(a) The 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; and
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<PAGE>
(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 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 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 the 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 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 the 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
a 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 Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by a 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 Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be filed on its behalf by the
undersigned, thereunto duly authorized, in the City of Woodbury, State of New
York, on December 19, 2000.
COMFORCE Corporation
(Registrant)
By: /s/ Harry Maccarrone
---------------------
Executive Vice President
and Chief Financial 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 dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------ ------------------------------ ------------------
<S> <C> <C>
/s/ John C. Fanning* Chairman, Chief Executive
------------------------------------ Officer and Director
John C. Fanning (Principal Executive Officer) December 19, 2000
/s/ Harry Maccarrone Executive Vice President,
------------------------------------ Chief Financial Officer
Harry Maccarrone and Director (Principal
Financial and Accounting Officer) December 19, 2000
/s/ Kenneth Daley* Director December 19, 2000
------------------------------------
Kenneth Daley
/s/ Keith Goldberg* Director December 19, 2000
------------------------------------
Keith Goldberg
/s/ Gordon Robinett* Director December 19, 2000
------------------------------------
Gordon Robinett
* By: /s/ Harry Maccarrone Attorney-in-Fact December 19, 2000
-------------------------
Harry Maccarrone
</TABLE>
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