As filed with the Securities and Exchange Commission on November 13, 1998
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
MODIS PROFESSIONAL SERVICES, INC.
(Exact name of registrant as specified in charter)
Florida 59-3116655
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization) Marc M. Mayo, Esq.
One Independent Drive Senior Vice President
Jacksonville, FL 32202 and General Counsel
904-360-2000 One Independent Drive
(Address, including zip code, and telephone Jacksonville, FL 32202
number, including area code, of registrant's 904-360-2000
principal executive offices) (Name, address, including zip code,
and telephone number including area
code, of agent for service)
--------------------
Copies to:
Michael B. Kirwan, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 N. Laura St., Suite 2800
Jacksonville, FL 32202
--------------------
Approximate date of commencement of proposed sale to public: From time to time
after the effective date of this registration statement.
____________________
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 interest
reinvestment plans, please 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>
Proposed
maximum Proposed
Amount aggregate maximum Amount of
Title of Shares to be offering price aggregate registration
to be registered registered per Share (1) offering price (1) fee
<S> <C> <C> <C> <C>
Common Stock $.01 par value per share 6,603,524 shares $14.75 $97,401,979 $27,077.75
======================================= ====================== =============== ====================== ================
</TABLE>
Estimated solely for purposes of determining the registration fee. This amount,
calculated pursuant to Rule 457(c), was based on the average of the high and low
prices of the Registrant's Common Stock on November 12, 1998, as reported on the
New York Stock Exchange.
-----------------------
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
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>
We will amend and complete the information in this prospectus. Although we
are permitted by U.S. federal securities law to offer these securities using
this prospectus, we may not sell them or accept your offer to buy them until the
documentation filed with the SEC relating to these securities has been declared
effective by the SEC. This prospectus is not an offer to sell these securities
or our solicitation of your offer to buy these securities in any jurisdiction
where that would not be permitted or legal.
SUBJECT TO COMPLETION, DATED November 13, 1998
PROSPECTUS
6,603,524 SHARES OF
COMMON STOCK
MODIS PROFESSIONAL SERVICES, INC.
This Prospectus relates to 6,603,524 shares of Common Stock of Modis
Professional Services, Inc. (the "Company"). 1,130,011 of the shares were
acquired from the Company by certain shareholders in connection with the
acquisition by the Company of Office Specialists, Inc., 4,598,698 of the shares
were acquired from the Company by certain shareholders in connection with the
acquisition by the Company of each of Actium Technologies, Inc., Actium Tools,
Inc., and Actium Corporation and 874,815 of the shares were acquired from the
Company by certain Shareholders (together, the "Selling Shareholders") in
connection with the acquisition by the Company of Consulting Partners, Inc. See
"Selling Shareholders". The Selling Shareholders may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended. See
"Plan of Distribution."
The shares may be sold from time to time by the Selling Shareholders, or by
pledgees, donees, transferees or other successors in interest. See "Selling
Shareholders" and "Plan of Distribution."
None of the proceeds from the sale of the shares by the Selling
Shareholders will be received by the Company. The Company will bear all expenses
in connection with the registration of the shares being offered by the Selling
Shareholders. The Selling Shareholders will bear any brokerage commissions,
discounts and other costs associated with respect to sales of the shares. The
Company has agreed to indemnify the Selling Shareholders against certain
liabilities, including liabilities under the Securities Act.
The shares of Common Stock of the Company are traded on the New York Stock
Exchange ("NYSE") under the symbol MPS. On _______ , 1998, the last sales price
for the shares of Common Stock as reported by NYSE was $ per share.
---------------------
Neither the SEC nor any State securities commission has determined whether
this prospectus is truthful or complete. Nor have they made, nor will they make,
any determination as to whether anyone should buy these securities. Any
representation to the contrary is a criminal offense.
The date of this Prospectus is November ___, 1998
2
<PAGE>
TABLE OF CONTENTS
PAGE
WHERE YOU CAN FIND MORE INFORMATION............................................3
THE COMPANY....................................................................4
SELLING SHAREHOLDERS...........................................................5
PLAN OF DISTRIBUTION...........................................................7
LEGAL OPINIONS.................................................................7
EXPERTS........................................................................7
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed.
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1997;
(2) The Company's Quarterly Reports on Form 10-Q/A for the quarters ended
March 31, 1998 and June 30, 1998;
(3) The Company's Current Report on Form 8-K/A dated October 1, 1998;
(4) The Company's Current Report on Form 8-K dated November 12, 1998;
(5) The Company's Definitive Proxy Statement on Schedule 14A filed July 2,
1998; and
(6) The description of the Company's Common Stock set forth in the
Company's registration statement filed pursuant to Section 12 of the Exchange
Act, and any amendment or report filed for the purpose of updating any such
description.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Marc M. Mayo
Senior Vice President, General Counsel and Secretary
Modis Professional Services, Inc.
One Independent Drive
Jacksonville, Florida 32202
904-360-2000
You should rely only on the information incorporated by reference or
provided in this prospectus. We have authorized no one to provide you with
different information. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of the document.
3
<PAGE>
THE COMPANY
The Company is a global provider of business services, including
consulting, outsourcing, outplacement, training and strategic staffing services.
The Company provides human resource solutions in the information technology,
accounting, legal, engineering/technical and scientific areas. The Company
serves the Fortune 1000 and other leading businesses through its offices located
in the United States, Canada, the United Kingdom, Continental Europe and Latin
America. The Company's revenues are primarily from the United States, as the
Company's global expansion began during 1997 through a series of acquisitions.
The Company's business is comprised of two divisions, Information Technology and
Professional Services.
The Company is incorporated under the laws of the State of Florida. The
address and telephone number of its principal executive offices are One
Independent Drive, Jacksonville, Florida, 32202, telephone number (904) 360-
2000.
4
<PAGE>
SELLING SHAREHOLDERS
The following table sets forth (i) the name of each of the Selling
Shareholders, (ii) the number of shares of Common Stock beneficially owned by
each Selling Shareholder prior to the offering and being offered hereby, and
(iii) the number of shares of Common Stock beneficially owned by each Selling
Shareholder after completion of the offering.
<TABLE>
<CAPTION>
SHARES SHARES
BENEFICIALLY SHARES BENEFICIALLY
OWNED PRIOR TO BEING OWNED
SELLING SHAREHOLDER OFFERING(1)(2) OFFERED AFTER OFFERING(2)
------------------- -------------- --------- -----------------
<S> <C> <C> <C>
Richard A. Koplow(3)................ 416,136 416,136 0
Florence Koplow(4).................. 337,484 337,484 0
Lawrence E. Derito(5)............... 151,561 151,561 0
Brent Road Limited Partnership(6)... 78,652 78,652 0
The Lexington Trust, dated December
24, 1985(7)........................ 73,089 73,089 0
The Concord Trust, dated December
28, 1985(8)........................ 73,089 73,089 0
Charles A. Murray (9)............... 2,690,248 2,690,248 0
John L. Connolly (10)............... 1,540,570 1,540,570 0
Alan T. Schiffman, John Hopkins, and
Kenneth S. Foreman, Trustees
U/A/D September 30, 1996
for the benefit of
Kate L. Connolly (11)........... 45,985 45,985 0
Alan T. Schiffman, John Hopkins, and
Kenneth S. Foreman, Trustees
U/A/D September 30, 1996
for the benefit of
Steven J. Connolly (12)........... 45,985 45,985 0
Alan T. Schiffman, John Hopkins, and
Kenneth S. Foreman, Trustees
U/A/D December 23, 1997
for the benefit of
Kate L. Connolly (13)........... 45,985 45,985 0
Alan T. Schiffman, John Hopkins, and
Kenneth S. Foreman, Trustees
U/A/D December 23, 1997
for the benefit of
Steven J. Connolly (14)........... 45,985 45,985 0
Mark O'Connor, John Campbell, and
John Hopkins, Trustees
U/A/D September 30, 1996
for the benefit of
Molly Sara Murray (15)........... 45,985 45,985 0
Mark O'Connor, John Campbell, and
John Hopkins, Trustees
U/A/D September 30, 1996
for the benefit of
Melissa Hannah Murray (16)........... 45,985 45,985 0
Mark O'Connor, John Campbell, and
John Hopkins, Trustees
U/A/D December 19, 1997
for the benefit of
Melissa Hannah Murray (17)........... 45,985 45,985 0
Mark O'Connor, John Campbell, and
John Hopkins, Trustees
U/A/D December 19, 1997
for the benefit of
Molly Sara Murray (18)............... 45,985 45,985 0
Cathy F. Schermer (19)................ 863,879 863,879 0
Consulting Partners, Inc.
Employee Stock Ownership
Plan and Trust (20).................. 10,936 10,936 0
--------- --------- ---------
Total............................. 6,603,524 6,603,524 0
</TABLE>
5
<PAGE>
(1) All share ownership information was provided to the Company by the
Selling Shareholders.
(2) Assumes that all of the shares held by the Selling Shareholders and
being offered hereby are sold, and that the Selling Shareholders acquire no
additional shares of Common Stock prior to completion of this offering. Other
than Charles A. Murray and John L. Connolly, each Selling Shareholder
beneficially owns less than 1% of the total number of shares of Common Stock
outstanding. Mr. Murray owns approximately 2.4% of the total number of shares
of Common Stock outstanding. Mr. Connolly owns approximately 1.4% of the total
number of shares of Common Stock outstanding.
(3) Mr. Koplow served as Chairman of the Board and Treasurer of Office
Specialists, Inc. prior to its acquisition by the Company. Includes (i) 146,178
shares beneficially owned as co-trustee of two trusts for the benefit of Mr.
Koplow's children and (ii) 78,652 shares beneficially owned as the general
partner of a partnership, the limited partner of which is one of Mr. Koplow's
minor children. Does not include 191,306 shares held by Mr. Koplow's wife,
Florence Koplow. Mr. Koplow disclaims beneficial ownership of all such shares.
(4) Mrs. Koplow served as Secretary and Director of Office Specialists,
Inc. prior to its acquisition by the Company. Includes 146,178 shares
beneficially owned as co-trustee of two trusts for the benefit of Mrs. Koplow's
children. Does not include 191,306 shares held by Mrs. Koplow's husband, Richard
A. Koplow.
(5) Mr. Derito serves as President of Office Specialists, Inc., which has
recently been sold by the Company to Randstad U.S., L.P. Mr. Derito previously
served as Chief Executive Officer, President and Vice Chairman of the Board of
Office Specialists, Inc. prior to its acquisition by the Company.
(6) The Brent Road Limited Partnership is a limited partnership of which
Richard A. Koplow is the general partner and one of Mr. Koplow's minor children
is the limited partner.
(7) The Lexington Trust is a trust for the benefit of Richard and Florence
Koplow's children, of which Richard and Florence Koplow are the co-trustees.
(8) The Concord Trust is a trust for the benefit of Richard and Florence
Koplow's children, of which Richard and Florence Koplow are the co-trustees.
(9) Mr. Murray serves as Chief Executive Officer of Actium Technologies,
Inc. and Actium Tools, Inc. (together, the "Actium Companies") and previously
served as Chief Executive Officer and a director of the Actium Companies prior
to their acquisition by the Company.
(10) Mr. Connolly serves as Senior Vice President of Actium Technologies,
Inc. and Chief Operating Officer of Actium Tools, Inc. and previously served as
Chief Operating Officer, Secretary and a director of Actium Technologies, Inc.
and as Chief Operating Officer, President, Secretary and a director of Actium
Tools, Inc. prior to their acquisition by the Company.
(11) The shares are owned by a trust for the benefit of John L. Connolly's
minor daughter. Mr. Connolly disclaims beneficial ownership of all shares held
by the trust.
(12) The shares are owned by a trust for the benefit of John L. Connolly's
minor son. Mr. Connolly disclaims beneficial ownership of all shares held by the
trust.
(13) The shares are owned by a trust for the benefit of John L. Connolly's
minor daughter. Mr. Connolly disclaims beneficial ownership of all shares held
by the trust.
(14) The shares are owned by a trust for the benefit of John L. Connolly's
minor son. Mr. Connolly disclaims beneficial ownership of all shares held by the
trust.
(15) The shares are owned by a trust for the benefit of Charles A. Murray's
minor daughter. Mr. Murray disclaims beneficial ownership of all shares held by
the trust.
(16) The shares are owned by a trust for the benefit of Charles A. Murray's
minor daughter. Mr. Murray disclaims beneficial ownership of all shares held by
the trust.
(17) The shares are owned by a trust for the benefit of Charles A. Murray's
minor daughter. Mr. Murray disclaims beneficial ownership of all shares held by
the trust.
(18) The shares are owned by a trust for the benefit of Charles A. Murray's
minor daughter. Mr. Murray disclaims beneficial ownership of all shares held by
the trust.
(19) Cathy F. Schermer served as chairperson of the Board, Vice President,
Secretary and Treasurer of Consulting Partners, Inc. prior to its acquisition by
the Company. Includes 87,481 shares held in escrow by SunTrust Bank Atlanta
pursuant to the Escrow Agreement dated August 31, 1998.
(20) The Consulting Partners, Inc. Employee Stock Ownership Plan and Trust
was established in 1990 for the purpose of providing retirement benefits for
eligible employees of Consulting Partners, Inc.
6
<PAGE>
PLAN OF DISTRIBUTION
The shares may be sold from time to time by the Selling Shareholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made on one or more exchanges including the New York Stock Exchange or such
other national securities exchange or automated interdealer quotation system on
which shares of the Common Stock are then listed, through negotiated
transactions or otherwise at prices and at terms then prevailing or at prices
related to the then current market price or in negotiated transactions. The
shares may be sold by one or more of the following methods: (a) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
(b) purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this Prospectus; (c) a block trade in which
the broker or dealer so engaged will attempt to sell the Shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction; (d) an exchange distribution in accordance with the rules of such
exchange; and (e) through the writing of options on the Shares.
If necessary, a supplemental prospectus which describes the method of sale
in greater detail may be filed by the Company with the Commission pursuant to
Rule 424(c) under the Securities Act of 1933, as amended, under certain
circumstances. In effecting sales, brokers or dealers engaged by the Selling
Stockholders and/or purchasers of the shares may arrange for other brokers or
dealers to participate. Brokers or dealers will receive commissions, concessions
or discounts from the Selling Stockholder and/or the purchasers of the Shares in
amounts to be negotiated prior to the sale. In addition, any shares covered by
this Prospectus which qualify for sale pursuant to Rule 144 under the Securities
Act may be sold under Rule 144 rather than pursuant to this Prospectus. From
time to time the Selling Stockholders may engage in short sales, short sales
versus the box, puts and calls, contracts for future sale, and other
transactions in securities of the Company or derivatives thereof, and may sell
and deliver the Shares in connection therewith. The Company will bear all
expenses in connection with the registration of the shares being offered by the
Selling Shareholders. The Selling Shareholders will bear any brokerage
commissions, discounts and other costs associated with the sale of the shares.
The Company has agreed to indemnify the Selling Shareholders against certain
liabilities including liabilities under the Securities Act. The Selling
Shareholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities Act.
The Selling Stockholders and any broker or dealer who acts in connection
with the sale of the shares hereunder may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act and any commissions received
by such broker-dealers and any profit on the resale of the shares sold by them
while acting as principals might be deemed to be underwriting discounts or
commissions under the Securities Act.
Because Selling Shareholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, the Selling Shareholders will be
subject to the prospectus delivery requirements of the Securities Act, which may
include delivery through the facilities of the NYSE pursuant to Rule 153 under
the Securities Act. The Company has informed the Selling Shareholders that the
anti-manipulative provisions of Regulation M promulgated under the Exchange Act
may apply to their sales in the market.
LEGAL OPINIONS
A legal opinion to the effect that the shares offered hereby by the Selling
Shareholders are validly issued, fully paid and non-assessable has been rendered
by LeBoeuf, Lamb, Greene & MacRae, L.L.P., Jacksonville, Florida, counsel to the
Company.
EXPERTS
The consolidated balance sheets as of December 31, 1997 and 1996 and the
consolidated statements of income, retained earnings, and cash flows for each of
the three years in the period ended December 31, 1997, incorporated by reference
in this Prospectus, have been incorporated herein in reliance upon the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in accounting and auditing.
7
<PAGE>
6,603,524 Shares
ACCUSTAFF
INCORPORATED
Common Stock
P R O S P E C T U S
November ___, 1998
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Registration fee to SEC $27,077.75
Accounting fees and expenses 10,000
Legal fees and expenses 10,000
Miscellaneous expenses 10,000
---------
Total $57,077.75
==========
The foregoing items, except for the registration fee to the Securities and
Exchange Commission, are estimated. The Company has agreed to bear all expenses
in connection with the registration of the Shares being offered by the Selling
Shareholders. The Selling Shareholders will bear any brokerage commissions,
discounts and other costs associated with the sale of the Shares. The Company
has agreed to indemnify the Selling Shareholders against certain liabilities
including liabilities under the Securities Act.
Item 15. Indemnification of Directors and Officers
Article 10 of the Bylaws of the Registrant require the Registrant, to the
fullest extent permitted or required by the Florida Business Corporation Act
(the "FBCA"), to (i) indemnify its directors against any and all liabilities and
(ii) advance any and all reasonable expenses, incurred in any proceeding to
which any such director is a party or in which such director is deposed or
called to testify as a witness because he or she is or was a director of the
Registrant.
The Registrant's Bylaws also provide that the Registrant may purchase
insurance on behalf of one or more of its directors, irrespective of whether the
Registrant would be obligated to indemnify or advance expenses to such director.
The Registrant has purchased insurance to protect directors, officers, employees
or other agents and the Registrant from any liability asserted against them for
acts taken or omissions occurring in their capacities as such.
The Registrant's Articles of Incorporation limit or eliminate the liability
of the Registrant's directors or officers to the Registrant or its shareholders
for any monetary damages to the full extent permitted under the FBCA. The
Registrant's Articles of Incorporation also require the Registrant to indemnify
a director or officer of the Registrant who is or was a party to any proceeding
by reason of the fact that he or she is or was such a director or officer or is
or was serving at the request of the Registrant as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other profit or non-profit enterprise against all liabilities
and expenses incurred in the proceeding except such liabilities and expenses as
are incurred because of his or her willful misconduct or knowing violation of
the criminal law.
Section 607.0850(1) of the FBCA empowers a corporation to indemnify any
person who was or is a party to any proceeding (other than an action by or in
the right of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against liability incurred in connection
with such proceeding (including any appeal thereof) if he or she acted in good
faith and in a manner he or she 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 reasonable cause to believe his or her conduct was
unlawful.
Section 607.0850(2) of the FBCA empowers a corporation to indemnify any
person who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth in the preceding paragraph,
against expenses and
II-1
<PAGE>
amounts paid in settlement not exceeding, in the judgment of the board of
directors, the estimated expenses of litigating the proceeding including
appeals, provided that the person acted under the standards set forth in the
preceding paragraph. However, no indemnification may be made for any claim,
issue or matter as to which such person is adjudged to be liable unless, and
only to the extent that, the court in which such proceeding was brought, or any
other court of competent jurisdiction, determines upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
that the court deems proper.
Section 607.0850(3) of the FBCA provides that to the extent a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in the defense of any proceeding referred to in subsections (1) and
(2) of Section 607.0850 or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses actually and reasonably incurred
by him or her in connection therewith.
Section 607.0850(4) provides that any indemnification under subsections (1)
and (2) of Section 607.0850, unless determined by a court, shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in subsections (1) and (2) of Section 607.0850. Such determination shall
be made:
(a) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such proceeding;
(b) if such a quorum is not obtainable, or, even if obtainable, by a
majority vote of a committee duly designated by the board of directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
(c) by independent legal counsel:
(1) selected by the board of directors as prescribed in paragraph (a) or a
committee selected as prescribed in paragraph (b); or
(2) if no quorum of directors can be obtained under paragraph (a) no
committee can be designated under paragraph (b), by a majority vote of the full
board of directors (in which directors who are parties may participate); or
(d) by the shareholders by a majority vote of a quorum of shareholders who
were not parties to such proceedings or if no quorum is obtainable, by a
majority vote of shareholders who were not parties to such proceeding.
Expenses incurred by a director or officer in defending a civil or criminal
proceeding may be paid by the corporation in advance of the final disposition
thereof upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it is ultimately determined that such director
or officer is not entitled to indemnification under Section 607.0850.
Section 607.0850(7) of the FBCA states that indemnification and advancement
of expenses are not exclusive and empowers the corporation to make any other
further indemnification or advancement of expenses of its directors, officers,
employees or agents under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, for actions in an official capacity and in
other capacities while holding an office. However, a corporation cannot
indemnify or advance expenses if a judgment or other final adjudication
establishes that the actions of the director, officer, employee or agent (a)
violated criminal law, unless the director, officer, employee or agent had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful, (b) derived an improper
personal benefit from such transaction, (c) was or is a director in a
circumstance where the liability under Section 607.0834 of the FBCA (relating to
unlawful distributions) applies, or (d) engages in willful misconduct or
conscious disregard for the best interests of the corporation in a proceeding by
or in right of the corporation to procure a judgment in its favor or in a
proceeding by or in right of a shareholder.
Section 607.0850(9) of the FBCA permits any director, officer, employee or
agent who is or was a party to a proceeding to apply for indemnification or
advancement of expenses to any court of competent jurisdiction.
Section 607.0850(12) of the FBCA permits a corporation to purchase and
maintain insurance for a director,
II-2
<PAGE>
officer, employee or agent against any liability incurred in his or her official
capacity or arising out of his or her status as such regardless of the
corporation's power to indemnify him or her against such liability under this
section.
According to Section 607.0831 of the FBCA, a director is not personally
liable for monetary damages to the Registrant or any other person for any
statement, vote, decision or failure to act, regarding corporate management or
policy, unless the director breached or failed to perform his duties as a
director and the director's breach of, or failure to perform those duties
constitutes: (i) a violation of criminal law, unless the director had reasonable
cause to believe his conduct was lawful or had no reason to believe his conduct
was unlawful; (ii) a transaction from which the director derived improper
personal benefit; (iii) a violation of Section 607.0834 of the FBCA, which
concerns unlawful payment of dividends; or (iv) in a proceeding by or in the
right of the corporation or a proceeding by or in the right of someone other
than the corporation or a stockholder, conscious disregard for the best interest
of the corporation, or willful misconduct, or recklessness or an act or omission
which was committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety or property.
Item 16. Exhibits and Financial Statement Schedules
The following exhibits are filed as part of this Registration Statement:
Exhibit
No. Description
4.1 Articles of Incorporation, as amended
4.2 Amended and Restated Bylaws
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23.1 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included in
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included as part of the signature page hereto)
Item 17. Undertakings.
A. Rule 415 Offerings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the 1933 Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post- effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; provided,
however, that paragraphs (1)(i) and (1)(ii) of this Section do not apply if the
Registration Statement is on Form
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<PAGE>
S-3, Form S-8 or Form F- 3 and 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 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. Subsequent Documents Incorporated by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 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 the
initial bona fide offering thereof.
C. Indemnification of Officers, Directors and Controlling Persons.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
D. Prospectus in a Registration Statement at the Time of Effectiveness.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus 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.
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<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 be
signed on its behalf by the undersigned, thereunto duly authorized, in
Jacksonville, Florida, on September 4, 1998.
MODIS PROFESSIONAL SERVICES, INC.
By: /s/ Derek E. Dewan
------------------------------------
Name: Derek E. Dewan
Title: Chairman, President and Chief
Executive Officer
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<PAGE>
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Derek E. Dewan, Michael D. Abney, Marc M.
Mayo, and Robert P. Crouch and each of them (with full power in each to act
alone), as his true and lawful attorneys- in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on September 4, 1998.
Signature Title
--------- -----
/s/ Derek E. Dewan
- -------------------------------- Chairman, President, Chief Executive Officer
Derek E. Dewan and Director (principal executive officer)
/s/ Michael D. Abney
- -------------------------------- Senior Vice President, Chief Financial Officer,
Michael D. Abney Treasurer and Director (principal financial
officer)
/s/ Robert P. Crouch
- -------------------------------- Vice President and Controller (principal
Robert P. Crouch accounting officer)
/s/ John K. Anderson, Jr.
- -------------------------------- Director
John K. Anderson, Jr.
/s/ T. Wayne Davis
- -------------------------------- Director
T. Wayne Davis
/s/ Daniel M. Doyle
- -------------------------------- Director
Daniel M. Doyle
/s/ Peter J. Tanous
- -------------------------------- Director
Peter J. Tanous
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 Articles of Incorporation, as amended (Incorporated herein
by reference to Exhibit 3 to the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1998).
4.2 Amended and Restated Bylaws (Incorporated herein by
reference to Exhibit 3.1 to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1998).
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23.1 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included
in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included as part of the signature page
hereto).
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EXHIBIT 5
OPINION OF COUNSEL
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
50 N. LAURA STREET SUITE 2800
JACKSONVILLE, FL 32202-3650
(904) 354-8000
FACSIMILE: (904) 353-1673
November 12, 1998
Modis Professional Services, Inc.
One Independent Drive
Jacksonville, FL 32202
Ladies and Gentlemen:
We have acted as counsel to Modis Professional Services, Inc., a Florida
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the offer and sale of 6,603,524 issued
and outstanding shares (the "Shares") of the Company's common stock, par value
$0.01 per share, which are being offered for the account of certain selling
shareholders (the "Selling Shareholders"). Certain of the Selling Shareholders
acquired 1,130,011 of the Shares in connection with the acquisition by the
Company of Office Specialists, Inc., 4,598,698 of the Shares were acquired from
the Company by certain of the Selling Shareholders in connection with the
acquisition by the Company of Actium Technologies, Inc., Actium Tools, Inc., and
Actium Corporation, and 874,815 of the shares were acquired from the Company by
certain of the Selling Shareholders in connection with the acquisition by the
Company of Consulting Partners, Inc. The Company will not receive any proceeds
from the sale of the Shares.
We have examined such documents, corporate records and other instruments,
and have made such other and further investigations as we have deemed relevant
and necessary for the purposes of this opinion. We have assumed, without
inquiry, the authenticity of all documents submitted to us as originals, the
genuineness of all signatures, the legal capacity of all natural persons and the
conformity with authentic original documents of any copies thereof submitted to
us for our examination.
Based upon the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. The Company has been incorporated under the laws of the State of Florida
and the Company's status is active.
2. The Shares have been legally issued, and are fully paid and
non-assessable.
The opinions rendered herein are limited to the laws of the State of
Florida and the Federal laws of the United States.
This opinion is being delivered in connection with the Registration
Statement and, accordingly, may not be used for any other purpose without our
prior written consent. We assume no obligation to update or supplement this
opinion to reflect any facts or circumstances that may hereafter come to our
attention with respect to the opinions expressed above, including any changes in
applicable law that may hereafter occur.
We hereby consent to the use of our name in the Registration Statement as
counsel who will pass upon the legality of the Shares and as having prepared
this opinion, and to the use of this opinion as an exhibit to the Registration
Statement. We also consent to the use of our name as counsel for the Company and
to any references to this firm in the prospectus that constitutes part of the
Registration Statement.
In giving this consent, we do not hereby admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules or regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT 23.2
CONSENT OF PRICEWATERHOUSECOOPERS LLP
November 12, 1998
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
Modis Professional Services, Inc. on Form S- 3 (File No. ) of our report dated
March 20, 1998, except for notes 15, 16, and 17, as to which the date is
November 11, 1998, on our audits of the consolidated financial statements of
Modis Professional Services, Inc. as of December 31, 1997, which report is
included in the company's filing on Form 8-K, dated November 12, 1998. We also
consent to the reference to our firm under the caption "Experts."
/s/ PricewaterhouseCoopers LLP
Jacksonville, Florida
