As filed with the Securities and Exchange Commission on April 5, 1995
Registration No. 33-18856
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
POST-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
UNIFORCE TEMPORARY PERSONNEL, INC.
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
New York 13-1996648
- - ------------------------------- ---------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
---------------------------
1335 Jericho Turnpike
New Hyde Park, New York 11040
(516) 437-3300
-----------------------------------------------------------------
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
---------------------------
John Fanning
Uniforce Temporary Personnel, Inc.
1335 Jericho Turnpike
New Hyde Park, New York 11040
---------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Post-Effective Amendment to the Registration
Statement becomes effective.
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, other than securities offered only in connection with
dividend or reinvestment plans, check the following box. /X/
<PAGE>
UNIFORCE TEMPORARY PERSONNEL, INC.
---------------------------
CROSS REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
Showing Location in Prospectus of Information
Required by Items of Form S-3
---------------------------
<TABLE>
<CAPTION>
ITEM NUMBER AND HEADING IN
FORM S-3 REGISTRATION STATEMENT CAPTION OR LOCATION IN PROSPECTUS
<S> <C>
1. Forepart of the Registration Statement
and Outside Front Cover Page of
Prospectus...................................................... Forepart of the Registration
Statement; Outside Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Pages
of Prospectus................................................... Inside Front Cover Page of
Prospectus
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges.............................. *
4. Use of Proceeds................................................. Use of Proceeds
5. Determination of Offering Price................................. *
6. Dilution........................................................ *
7. Selling Security Holders........................................ Selling Shareholders
8. Plan of Distribution............................................ Plan of Distribution
9. Description of Securities to be
Registered...................................................... *
10. Interests of Named Experts and Counsel.......................... *
11. Material Changes................................................ *
12. Incorporation of Certain Information
by Reference.................................................... Incorporation of Certain
Information by Reference
Disclosure of Commission Position on
Indemnification for Securities Act
13. Liabilities..................................................... *
</TABLE>
- - ------------------
* Not applicable.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 5, 1995
PROSPECTUS
145,875 SHARES
UNIFORCE(R)
TEMPORARY PERSONNEL, INC.
Common Stock ($.01 par value)
This Prospectus relates to the reoffer and resale by certain selling
shareholders (the "Selling Shareholders") of shares (the "Shares") of the Common
Stock, $.01 par value (the "Common Stock"), of Uniforce Temporary Personnel,
Inc. (the "Company") issued or that may be issued by the Company to the Selling
Shareholders upon the exercise of outstanding stock options granted under the
Company's Incentive Stock Option Plan (the "ISO Plan") and the Company's 1985
Incentive Stock Option Plan (the "1985 Plan"). The offer and sale of the Shares
to the Selling Shareholders were previously registered under the Securities Act
of 1933, as amended (the "Securities Act"). The Shares are being reoffered and
resold for the account of the Selling Shareholders and the Company will not
receive any of the proceeds from the resale of the Shares.
The Selling Shareholders have advised the Company that the resale of
their Shares may be effected from time to time in one or more transactions in
the over-the-counter market, in negotiated transactions or otherwise at market
prices prevailing at the time of the sale or at prices otherwise negotiated. See
"Plan of Distribution." The Company will bear all expenses in connection with
the preparation of this Prospectus.
The Common Stock of the Company is traded in the Nasdaq National
Market ("Nasdaq") under the symbol "UNFR." On April 4, 1995, the last sale price
for the Common Stock, as reported by Nasdaq, was $9.75.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is April __, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; Northwestern Atrium Center, Suite 1400,
500 West Madison Street, Chicago, Illinois 60661; and Seven World Trade Center,
13th Floor, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
TABLE OF CONTENTS
AVAILABLE INFORMATION.......................................................2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................3
GENERAL INFORMATION.........................................................4
USE OF PROCEEDS.............................................................4
SELLING SHAREHOLDERS........................................................4
PLAN OF DISTRIBUTION........................................................5
LEGAL MATTERS...............................................................5
EXPERTS.....................................................................5
ADDITIONAL INFORMATION......................................................5
-2-
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1994 is incorporated by reference in this Prospectus and shall be deemed to
be a part hereof. All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination
of this offering, are deemed to be incorporated by reference in this Prospectus
and shall be deemed to be a part hereof from the date of filing of such
documents.
The Company's Application for Registration of its Common Stock under
Section 12(g) of the Exchange Act filed on April 20, 1984 is incorporated by
reference in this Prospectus and shall be deemed to be a part hereof.
The Company hereby undertakes to provide without charge to each
person to whom a copy of this Prospectus has been delivered, on the written or
oral request of any such person, a copy of any or all of the documents referred
to above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents. Written requests for such copies should
be directed to Uniforce Temporary Personnel, Inc. at 1335 Jericho Turnpike, New
Hyde Park, New York 11040, Attention: Diane J. Geller, Secretary. Oral requests
should be directed to such officer (telephone number (516) 437-3300).
---------------------------
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or any Selling Shareholder. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, the securities offered
hereby to any person in any state or other jurisdiction in which such offer or
solicitation is unlawful. The delivery of this Prospectus at any time does not
imply that information contained herein is correct as of any time subsequent to
its date.
-3-
<PAGE>
GENERAL INFORMATION
The Company's core business is the granting of licenses to operate
offices and the operation of offices that provide supplemental staffing services
to businesses, educational institutions, professional and service organizations,
federal, state and local governmental agencies and others in the United States.
The Company offers specialized product lines at several of its Company-owned and
licensed offices, including Information Services, office automation and medical
support services. The Company also supplies payroll, billing and/or financial
support services to independent supplemental staffing firms, provides temporary
laboratory staffing support to the scientific community and provides
confidential consulting and payrolling, permitting clients to utilize the
services of former 1099 independent contractors and consultants.
The Company's principal executive offices are located at 1335 Jericho
Turnpike, New Hyde Park, New York 11040. The Company's telephone number at such
location is (516) 437-3300.
The Shares offered hereby were or will be purchased by the Selling
Shareholders upon exercise of options granted to them under the ISO Plan and the
1985 Plan and will be sold for the account of the Selling Shareholders.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the reoffer and
resale of the Shares by the Selling Shareholders.
SELLING SHAREHOLDERS
This Prospectus relates to the reoffer and resale of Shares issued or
that may be issued to the Selling Shareholders under the ISO Plan and the 1985
Plan.
The following table sets forth (i) the number of shares of Common
Stock owned by each Selling Shareholder at March 31, 1995, (ii) the number of
Shares to be offered for resale by each Selling Shareholder and (iii) the number
and percentage of shares of Common Stock to be held by each Selling Shareholder
after completion of the offering.
<TABLE>
<CAPTION>
Number of shares of
Common Stock/
Number of Percentage of Class to
Number of shares of Shares to be be Owned After
Common Stock Owned at Offered for Completion of the
Name March 31, 1995 Resale Offering(1)
- - ---------------------------------------- ------------------------ ----------------- ------------------------
<S> <C> <C> <C>
John Fanning(2).......................... 1,854,260(3) 40,000 1,814,260/39.3
Rosemary Maniscalco(4)................... 159,515(5) 24,500 135,015/3.0
Harry V. Maccarrone(6)................... 52,450(7) 30,125 22,325/(8)
</TABLE>
(1) Assumes the issuance on March 31, 1995 of the shares of Common Stock
subject to options (exercisable within 60 days after such date) held by
each of Mr. Fanning, Ms. Maniscalco and Mr. Maccarrone pursuant to the
Company's 1991 Stock Option Plan (the "1991 Plan") for purposes of
calculating the respective percentages of Common Stock owned by Mr.
Fanning, Ms. Maniscalco or Mr. Maccarrone.
(2) Mr. Fanning, a founder of the Company, has served as Chairman of the
Board, President and Chief Executive Officer of the Company for more than
five years and as a Director of the Company (or its predecessor) since
1961.
(3) Includes 89,000 shares of Common Stock deemed to be beneficially owned by
Mr. Fanning by reason of his right to acquire such shares within 60 days
after March 31, 1995 through the exercise of stock options granted to him
pursuant to the ISO Plan, the 1985 Plan and the 1991 Plan.
(4) Ms. Maniscalco has been Executive Vice President of the Company since May
1984, Chief Operating Officer since June 1992 and a Director of the
Company since 1983.
-4-
<PAGE>
(5) Includes 103,290 shares of Common Stock deemed to be beneficially owned by
Ms. Maniscalco by reason of her right to acquire such shares within 60
days of March 31, 1995 through the exercise of stock options granted to
her under the ISO Plan, the 1985 Plan and the 1991 Plan of the Company.
(6) Mr. Maccarrone has been Vice President-Finance, Treasurer and Chief
Financial Officer of the Company effective May 1, 1989, and a Director of
the Company since 1989.
(7) Represents 52,450 shares of Common Stock deemed to be beneficially owned
by Mr. Maccarrone by reason of his right to acquire such shares within 60
days after March 31, 1995 through the exercise of stock options granted to
him pursuant to the ISO Plan, the 1985 Plan and the 1991 Plan of the
Company.
(8) Less than 1% of the number of outstanding shares of Common Stock at March
31, 1995.
PLAN OF DISTRIBUTION
It is anticipated that all of the Shares will be offered by the
Selling Shareholders from time to time in the open market, either directly or
through brokers or agents, or in privately negotiated transactions. The Selling
Shareholders have advised the Company that they are not parties to any
agreement, arrangement or understanding as to such sales.
LEGAL MATTERS
Certain legal matters in connection with the issuance of the Shares
offered hereby have been passed upon for the Company by Messrs. Golenbock and
Barell, 645 Fifth Avenue, New York, New York 10022.
EXPERTS
The consolidated financial statements of Uniforce Temporary
Personnel, Inc., and subsidiaries as of December 31, 1994 and 1993 and for each
of the years in the three-year period ended December 31, 1994 have been
incorporated by reference herein in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing. The report of KPMG Peat Marwick LLP refers to a change in the method
of accounting for income taxes.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission a
Registration Statement on Form S-3 under the Securities Act with respect to the
Shares offered hereby. For further information with respect to the Company and
the securities offered hereby, reference is made to the Registration Statement.
Statements contained in this Prospectus as to the contents of any contract or
other document are not necessarily complete, and in each instance, reference is
made to the copy of such contract or document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference.
-5-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, all of which will be paid by the Registrant, are as
follows:
SEC Registration Fee........................... $ 271.58
Accounting Fees and Expenses................... 4,000.00*
Legal Fees and Expenses........................ 5,500.00*
Blue Sky Fees and Expenses..................... 50.00
Miscellaneous Expenses......................... 78.42
---------
Total.......................................... $9,900.00
*Includes amounts previously paid.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except as hereinafter set forth, there is no statute, charter
provision, by-law, contract or other arrangement under which any controlling
person, director or officer of the Company is insured or indemnified in any
manner against liability which he may incur in his capacity as such.
The Company's authority to indemnify its directors and
officers is governed by the provisions of Sections 721 to 726 of the New York
Business Corporation Law, as follows:
Section 721 Nonexclusivity of Statutory Provisions for
Indemnification of Directors and Officers -- The indemnification and advancement
of expenses granted pursuant to, or provided by, this article shall not be
deemed exclusive of any other rights to which a director or officer seeking
indemnification or advancement of expenses may be entitled, whether contained in
the certificate of incorporation or the by-laws or, when authorized by such
certificate of incorporation or by-laws, (i) a resolution of shareholders, (ii)
a resolution of directors, or (iii) an agreement providing for such
indemnification, provided that no indemnification may be made to or on behalf of
any director or officer if a judgment or other final adjudication adverse to the
director or officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled. Nothing
contained in this article shall affect any rights to indemnification to which
corporate personnel other than directors and officers may be entitled by
contract or otherwise under law.
Section 722 Authorization for Indemnification of Directors and
Officers -- (a) A corporation may indemnify any person, made, or threatened to
be made, a party to an action or proceeding other than one by or in the right of
the corporation to procure a judgment in its favor, whether civil or criminal,
including an action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director or officer of the
corporation served in any capacity at the request of the corporation, by reason
of the fact that he, his testator or intestate, was a director or officer of the
corporation, or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, if such director
II-1
<PAGE>
or officer acted, in good faith, for a purpose which he reasonably believed to
be in, or, in the case of service for any other corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise, not opposed to,
the best interests of the corporation and, in criminal actions or proceedings,
in addition, had no reasonable cause to believe that his conduct was unlawful.
(b) The termination of any such civil or
criminal action or proceeding by judgment, settlement, conviction or upon a plea
of nolo contendere, or its equivalent, shall not in itself create a presumption
that any such director or officer did not act, in good faith, for a purpose
which he reasonably believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise, not opposed to, the best interests of the corporation or that
he had reasonable cause to believe that his conduct was unlawful.
(c) A corporation may indemnify any person made,
or threatened to be made, a party to an action by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he,
his testator or intestate, is or was a director or officer of the corporation,
or is or was serving at the request of the corporation as a director or officer
of any other corporation of any type or kind, domestic or foreign, of any
partnership, joint venture, trust, employee benefit plan or other enterprise,
against amounts paid in settlement and reasonable expenses, including attorneys'
fees, actually and necessarily incurred by him in connection with the defense or
settlement of such action, or in connection with an appeal therein if such
director or officer acted, in good faith, for a purpose which he reasonably
believed to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation, except that no
indemnification under this paragraph shall be made in respect of (1) a
threatened action, or a pending action which is settled or otherwise disposed
of, or (2) any claim issue or matter as to which such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that the
court in which the action was brought, or, if no action was brought, any court
of competent jurisdiction, determines upon application that, in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such portion of the settlement amount and expenses as the court
deems proper.
(d) For the purpose of this section, a
corporation shall be deemed to have requested a person to serve an employee
benefit plan where the performance by such person of his duties to the
corporation also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan; excise taxes
assessed on a person with respect to an employee benefit plan pursuant to
applicable law shall be considered fines; and action taken or omitted by a
person with respect to an employee benefit plan in the performance of such
person's duties for a purpose reasonably believed by such person to be in the
interest of the participants and beneficiaries of the plan shall be deemed to be
for a purpose which is not opposed to the best interests of the corporation.
Section 723 Payment of Indemnification Other Than By Court
Award -- (a) A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in section 722 shall be entitled to indemnification as authorized in
such section.
(b) Except as provided in paragraph (a), any
indemnification under section 722 or otherwise permitted by section 721, unless
ordered by a court under section 724 (Indemnification of directors and officers
by a court), shall be made by the corporation, only if authorized in the
specific case:
II-2
<PAGE>
(1) By the board acting by a quorum
consisting of directors who are not parties to such action or proceeding upon a
finding that the director or officer has met the standard of conduct set forth
in section 722 or established pursuant to section 721, as the case may be, or,
(2) If a quorum under subparagraph (1)
is not obtainable or, even if obtainable, a quorum of disinterested directors so
directs;
(A) By the board upon the
opinion in writing of independent legal counsel that indemnification is proper
in the circumstances because the applicable standard of conduct set forth in
such sections has been met by such director or officer, or
(B) By the shareholders upon a
finding that the director or officer has met the applicable standard of conduct
set forth in such sections.
(C) Expenses incurred in
defending a civil or criminal action or proceeding may be paid by the
corporation in advance of the final disposition of such action or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount as, and to the extent, required by paragraph (a) of section
725.
Section 724 Indemnification of Directors and Officers by a
Court -- (a) Notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary resolution of the board or of the
shareholders in the specific case under section 723 (Payment of indemnification
other than by court award), indemnification shall be awarded by a court to the
extent authorized under section 722 (Authorization for indemnification of
directors and officers), and paragraph (a) of section 723. Application therefor
may be made, in every case, either:
(1) In the civil action or proceeding in
which the expenses were incurred or other amounts were paid, or
(2) To the supreme court in a separate
proceeding, in which case the application shall set forth the disposition of any
previous application made to any court for the same or similar relief and also
reasonable cause for the failure to make application for such relief in action
or proceeding in which the expenses were incurred or other amounts were paid.
(b) The application shall be made in such manner
and form as may be required by the applicable rules of court or, in the absence
thereof, by direction of a court to which it is made. Such application shall be
upon notice to the corporation. The court may also direct that notice be given
at the expense of the corporation to the shareholders and such other persons as
it may designate in such manner as it may require.
(c) Where indemnification is sought by judicial
action, the court may allow a person such reasonable expenses, including
attorneys' fees, during the pendency of the litigation as are necessary in
connection with his defense therein, if the court shall find that the defendant
has by his pleadings or during the course of the litigation raised genuine
issues of fact or law.
Section 725 Other Provisions Affecting Indemnification of
Directors and Officers -- (a) All expenses incurred in defending a civil or
criminal action or proceeding which are advanced by the corporation under
paragraph (c) of section 723 (Payment of indemnification other than by court
award) or allowed by a court under paragraph (c) of section 724 (Indemnification
of directors and officers by a court) shall be repaid in case the person
receiving such advancement or allowance is ultimately found, under the procedure
set forth in this article, not to be entitled to indemnification or, where
indemnification
II-3
<PAGE>
is granted, to the extent the expenses so advanced by the corporation or allowed
by the court exceed the indemnification to which he is entitled:
(b) No indemnification, advancement or allowance
shall be made under this article in any circumstance where it appears:
(1) That the indemnification would be
inconsistent with the law of the jurisdiction of incorporation of a foreign
corporation which prohibits or otherwise limits such indemnification;
(2) That the indemnification would be
inconsistent with a provision of the certificate of incorporation, a by-law, a
resolution of the board or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause of
action asserted in the threatened or pending action or proceeding in which the
expenses were incurred or other amounts were paid, which prohibits or otherwise
limits indemnification; or
(3) If there has been a settlement
approved by the court, that the indemnification would be inconsistent with any
condition with respect to indemnification expressly imposed by the court in
approving the settlement.
(c) If any expenses or other amounts are paid by
way of indemnification, otherwise than by court order or action by the
shareholders, the corporation shall, not later than the next annual meeting of
shareholders unless such meeting is held within three months from the date of
such payment, and in any event, within fifteen months from the date of such
payment, mail to its shareholders of record at the time entitled to vote for the
election of directors a statement specifying the persons paid, the amounts paid,
and the nature and status at the time of such payment of the litigation or
threatened litigation.
(d) If any action with respect to
indemnification of directors and officers is taken by way of amendment of the
by-laws, resolution of directors, or by agreement, then the corporation shall,
not later than the next annual meeting of shareholders, unless such meeting is
held within three months from the date of such action, and, in any event, within
fifteen months from the date of such action, mail to its shareholders of record
at the time entitled to vote for the election of directors a statement
specifying the action taken.
(e) Any notification required to be made
pursuant to the foregoing paragraph (c) or (d) of this section by any domestic
mutual insurer shall be satisfied by compliance with the corresponding
provisions of section one thousand two hundred sixteen of the insurance law.
(f) The provisions of this article relating to
indemnification of directors and officers and insurance therefor shall apply to
domestic corporations and foreign corporations doing business in this state,
except as provided in section 1320 (Exemption from certain provisions).
Section 726 Insurance for Indemnification of Directors and
Officers -- (a) Subject to paragraph (b), a corporation shall have power to
purchase and maintain insurance:
(1) To indemnify the corporation for any
obligation which it incurs as a result of the indemnification of directors and
officers under the provisions of this article, and
(2) To indemnify directors and officers
in instances in which they may be indemnified by the corporation under the
provisions of this article, and
II-4
<PAGE>
(3) To indemnify directors and officers
in instances in which they may not otherwise be indemnified by the corporation
under the provisions of this article provided the contract of insurance covering
such directors and officers provides, in a manner acceptable to the
superintendent of insurance, for a retention amount and for co-insurance.
(b) No insurance under paragraph (a) may provide
for any payment, other than cost of defense, to or on behalf of any director or
officer.
(1) if a judgment or other final
adjudication adverse to the insured director or officer establishes that his
acts of active and deliberate dishonesty were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled, or
(2) in relation to any risk the
insurance of which is prohibited under the insurance law of this state.
(c) Insurance under any or all subparagraphs of
paragraph (a) may be included in a single contract or supplement thereto.
Retrospective rated contracts are prohibited.
(d) The corporation shall, within the time and
to the persons provided in paragraph (c) of section 725 (Other provisions
affecting indemnification of directors or officers), mail a statement in respect
of any insurance it has purchased or renewed under this section, specifying the
insurance carrier, date of the contract, cost of the insurance, corporate
positions insured, and a statement explaining all sums, not previously reported
in a statement to shareholders, paid under any indemnification insurance
contract.
(e) This section is the public policy of this
state to spread the risk of corporate management, notwithstanding any other
general or special law of this state or of any other jurisdiction including the
federal government.
----------- ------------ ----------
The Company's certificate of incorporation provides that the
personal liability of the directors of the Company to the Company or its
shareholders for damages for any breach of duty as directors, is eliminated to
the fullest extent permitted by the Business Corporation Law of the State of New
York. The Company's certificate of incorporation also provides that the Company
shall, to the fullest extent permitted by Sections 722 and 723 of the New York
Business Corporation Law, indemnify any and all persons whom it shall have power
to indemnify under said sections from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said sections,
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of shareholders or directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to persons who have ceased to be
directors, officers, employees or agents and shall inure to the benefit of the
heirs, executors and administrators of such persons.
The Company's by-laws provide for indemnification of the
Company's directors and officers to the fullest extent permitted by the laws of
the State of New York and permit the Company to enter into indemnity agreements
with its officers and directors (the "Indemnity Agreements"). The Company has
entered into Indemnity Agreements with John Fanning, Rosemary Maniscalco, Harry
V. Maccarrone, John H. Brinckerhoff III, Gordon Robinett, Daniel Raynor, Diane
J. Geller and Joseph A. Driscoll. The Indemnity Agreements provide that the
Company shall indemnify such officers or directors from and against any and all
liabilities, costs and expenses, amounts of judgments, fines,
II-5
<PAGE>
penalties and amounts paid in settlement of or incurred in defense of any
settlement in connection with any threatened, pending or completed claim,
action, suit or proceeding in which such persons are a party, or which may be
asserted against them by reason of their being or having been an officer or
director of the Company (the "Losses"), unless it is determined that such
officers and directors did not act in good faith and for a purpose which they
reasonably believed to be in, or in the case of service to an entity related to
the Company, not opposed to, the best interests of the Company and, in the case
of a criminal proceeding or action, that they had reasonable cause to believe
that their conduct was unlawful. No indemnification may be made under the
Indemnity Agreements for Losses incurred by such officers or directors who are
parties to any proceeding or action by or in the right of the Company to procure
a judgment in its favor in respect of (i) any claim, issue or matter as to which
such officers or directors shall have been adjudged liable to the Company or
(ii) any threatened or pending action to which such officers or directors are a
party or are threatened to be made a party which is settled or otherwise
disposed of, unless any court in which such action or proceeding is brought or
any court of competent jurisdiction shall determine that, in view of all of the
circumstances, such officers or directors are reasonably entitled to indemnity.
Such indemnification shall be in addition to any other rights to which such
officers or directors may be entitled under any law, charter provision, by-law,
agreement, vote of shareholders or otherwise.
The Company maintains a $1,000,000 directors and officers
liability insurance policy.
ITEM 16. EXHIBITS.
EXHIBIT INDEX
EXHIBIT
*4(a) Uniforce Temporary Personnel, Inc. Incentive Stock Option
Plan, as amended through March 9, 1993, incorporated by
reference to Exhibit 10(a) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1992.
*4(b) Forms of agreements under Incentive Stock Option Plan.
*4(c) Uniforce Temporary Personnel, Inc. 1985 Incentive Stock Option
Plan, as amended through December 7, 1993, incorporated by
reference to Exhibit 10(b) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1993.
*4(d) Forms of agreements under 1985 Incentive Stock Option Plan.
*5 Opinion of Golenbock and Barell with respect to the securities
registered hereunder.
23(a) Consent of KPMG Peat Marwick LLP
*23(b) Consent of Golenbock and Barell (included within Exhibit 5).
- - ----------------------
* Previously filed
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
a. To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration
statement to include any material information with respect to the plan of
distribution not
II-6
<PAGE>
previously disclosed in the registration statement or any material change to
such information in the registration statement.
b. That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
c. 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 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 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against each 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 Act and will
be governed by the final adjudication of such issue.
II-7
<PAGE>
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-3 and has duly caused this
amendment to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the Town of North Hempstead, State of
New York, on this 31st day of March, 1995.
UNIFORCE TEMPORARY PERSONNEL, INC.
(Registrant)
By: /S/ JOHN C. FANNING
---------------------------------------
John C. Fanning, Chairman of the Board,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/S/ JOHN C. FANNING Chairman of the Board,
- - ---------------------------- President and Chief
(John C. Fanning) Executive Officer March 31, 1995
/S/ ROSEMARY MANISCALCO Executive Vice President,
- - ---------------------------- Chief Operating Officer
(Rosemary Maniscalco) and Director March 31, 1995
Vice President-Finance,
Treasurer, Principal
/S/ HARRY V. MACCARRONE Financial and Chief
- - ---------------------------- Accounting Officer and
(Harry V. Maccarrone) Director March 31, 1995
/S/ JOHN H. BRINCKERHOFF III
- - ----------------------------
(John H. Brinckerhoff III) Director March 31, 1995
/S/ GORDON ROBINETT
- - ----------------------------
(Gordon Robinett) Director March 31, 1995
/S/ DANIEL RAYNOR
- - ----------------------------
(Daniel Raynor) Director March 31, 1995
/S JOSEPH A. DRISCOLL
- - ----------------------------
(Joseph A. Driscoll) Director March 31, 1995
II-8
KPMG Peat Marwick LLP
The Board of Directors
Uniforce Temporary Personnel, Inc.:
We consent to the use of our report incorporated by reference herein and to the
reference to our firm under the heading "Experts" in the prospectus. Our report
refers to a change in the method of accounting for income taxes.
/s/ KPMG Peat Marwick LLP
------------------------
KPMG PEAT MARWICK LLP
Jericho, New York
March 28, 1995
Member Firm of
Klynveld Peat Marwick Goerdeler
