As filed with the Securities and Exchange Commission on April 6, 1998.
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
ACCUSTAFF INCORPORATED
(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)
One Independent Drive
Jacksonville, Florida 32202
904-360-2000
(Address, including zip code, and telephone
number, including area code, of registrant's
principal executive offices)
ACCUSTAFF INCORPORATED
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTOR STOCK PLAN
(Full title of the plan)
Marc M. Mayo, Esq.
Senior Vice President
and General Counsel
One Independent Drive
Jacksonville, Florida 32202
904-360-2000
(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, Florida 32202
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Proposed
Amount maximum maximum Amount of
Title of Securities to be offering price aggregate registration
to be registered registered(1) per Share(2) offering price(2) fee
- --------------------------------------- ---------------------- --------------- ---------------------- ----------------
Common Stock $.01 par value per
share(3) 1,000,000 $34.38 $34,380,000 $10,142.10
======================================= ====================== =============== ====================== ================
<FN>
(1) This Registration Statement also includes any additional shares that may
hereafter become issuable as a result of the antidilution
adjustment provisions of the Registrant's Amended and Restated Non-Employee
Director Stock Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h).
(3) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests in the Plan.
- -------------------------------------------------------------------------------------------------------------------
</FN>
</TABLE>
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act of 1933")
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant (File No. 0-24484) with
the Securities and Exchange Commission are hereby incorporated by reference in
this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997; and
(2) The description of Common Stock contained in the Registrant's
Registration Statement on Form 8-A, filed under Section 12 of the Exchange Act,
including all amendments or reports filed for the purpose of updating such
description.
All other documents subsequently filed by the Registrant or the Plan
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Prospectus and to be a part thereof from the date of filing of
such documents.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable.
II-1
<PAGE>
ITEM 6. 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.
Section 607.0850(1) of the Florida Business Corporation Act (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 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.
II-2
<PAGE>
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.
II-3
<PAGE>
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, 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; (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, 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 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS
Exhibits required to be filed with the Registration Statement are
listed in the following Exhibit Index. Certain of such exhibits that have
heretofore been filed with the Commission and that are designated by reference
to their exhibit number in prior filings are hereby incorporated herein by
reference and made a part hereof.
ITEM 9. UNDERTAKINGS
(a) 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
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;
(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;
II-4
<PAGE>
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
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 being 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) 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 Section 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 that 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 the Registrant pursuant to the Registrant's certificate of
incorporation, bylaws, 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 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-5
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Jacksonville, State of
Florida, on December 9, 1997.
ACCUSTAFF INCORPORATED
(Registrant)
By: /s/ Derek E. Dewan
---------------------------------
Derek E. Dewan
Chairman, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW BY ALL MEN BY THESE PRESENT that each person whose signature
appears below constitutes and appoints Derek E. Dewan and Michael D. Abney 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 December 9, 1997.
Signature Title
/s/ Derek E. Dewan Chairman, President, Chief Executive Officer
- ----------------------------- and Director (principal executive officer)
Derek E. Dewan
/s/ Michael D. Abney Senior Vice President, Chief Financial Officer,
- ----------------------------- Secretary, Treasurer and Director (principal
Michael D. Abney financial officer)
(Signatures continue on following page)
II-6
<PAGE>
/s/ Robert P. Crouch Vice President and Controller (principal
- ---------------------------- accounting officer)
Robert P. Crouch
/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
II-7
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act, the
AccuStaff Incorporated Non-Employee Director Stock Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned plan
administrator, thereunto duly authorized, in the City of Jacksonville, State of
Florida, on December 9, 1997.
ACCUSTAFF INCORPORATED
NON-EMPLOYEE DIRECTOR STOCK PLAN
THE BOARD OF DIRECTORS
(Plan Administrator)
By: /s/ Robert P. Crouch
-----------------------------
Name: Robert P. Crouch
Title: Vice President and
Controller
II-8
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
4.1 Certificate of Incorporation, as amended, of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1995)
4.2 Bylaws, as amended, of the Registrant (incorporated herein by
reference to Exhibit 3.2 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1996)
4.3 Accustaff Incorporated Amended and Restated Non-Employee Director
Stock Plan
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included in
Exhibit 5.1)
24.1 Power of Attorney (included on signature page of this Registration
Statement)
II-9
ACCUSTAFF INCORPORATED AMENDED AND RESTATED
NON-EMPLOYEE DIRECTOR STOCK PLAN
1. PURPOSES
The purposes of the AccuStaff Incorporated Amended and Restated Non-
Employee Director Stock Option Plan are to provide an incentive and reward to
the Company's non-employee directors.
2. DEFINITIONS
2.1 For purposes of the Plan the following terms shall have the
definition which is attributed to them unless another definition is clearly
indicated by a particular usage and context.
(a) "Agreement" means the written document issued by the
Board to a Participant whereby an Award is made to that
Participant.
(b) "Award" means the issuance pursuant to the Plan of an
Option.
(c) "Awarded Shares" means Shares subject to outstanding
Awards.
(d) "Board" means the Company's Board of Directors.
(e) "Code" means the Internal Revenue Code of 1986, as
amended.
(f) "Company" means AccuStaff Incorporated, a corporation
incorporated under the laws of the state of Florida, and any
successor thereto.
(g) "Director" means a member of the Board.
(h) "Effective Date of Grant" means the effective date of
grant for each Option established by Section 5.1 of the
Plan.
(i) "Employee" means any individual who performs services as
a common law employee for the Company, a Parent or
Subsidiary, and is included on the regular payroll of the
Company, a Parent or Subsidiary.
(j) "Fair Market Value" means the value established by the
Board based upon such factors as the Board in its sole
discretion shall decide including, but not limited to, a
valuation prepared by an independent third party appraiser
selected, or approved, by the Board. If at any time the
Stock is traded on an established trading system, it means
the last sale price reported on any stock exchange or
over-the-counter trading system on which Shares are trading
on a specified date or, if not so trading, the average of
the closing bid and asked prices for a Share on a specified
date. If no sale has been made on the specified date, then
prices on the last preceding day on which any such sale
shall have been made shall be used in determining fair
market value under either method prescribed in the previous
sentence.
(k) "Option" means the right to purchase from the Company a
stated number of Shares at a specified price.
(l) "Option Price" means the purchase price per Share
subject to an Option.
(m) "Parent" means any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company
if, at the time of a granting of an option, each of the
corporations (other than the Company) in the unbroken chain
owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain within the meaning of Code
Section 424(e) and any regulations or rulings promulgated
thereunder.
(n) "Participant" means a Director who has received an Award
under the Plan.
(o) "Plan" means the AccuStaff Incorporated Amended and
Restated Non-Employee Director Stock Plan, as evidenced
herein and as amended from time to time.
(p) "Rule 16b-3" means Rule 16b-3 as promulgated by the
Securities and Exchange Commission under the 1934 Act, or
any successor rule or regulation thereto.
(q) "Share" means one share of the common stock, $.01 par
value, of the Company.
(r) "Subsidiary" means any corporation in an unbroken chain
of corporations beginning with the Company if, at the time
of the granting of the Award, each of the corporations
(other than the last corporation) in the unbroken chain owns
stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other
corporations in such chain, within the meaning of Code
Section 424(f) and any regulations or rulings promulgated
thereunder.
(s) "1933 Act" means the Securities Act of 1933, as amended.
(t) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
1
<PAGE>
3. ADMINISTRATION
3.1 The Plan is intended to meet the requirements of Rule 16b-3 adopted
under the 1934 Act and accordingly is intended to be self-governing. To this
end, the Plan requires no discretionary action by any administrative body with
regard to any transaction under the Plan.
3.2 The Plan shall be administered by the full Board.
3.3 The action of a majority of the Board at which a quorum is present,
or an action approved in writing by a majority of the Board, shall be the valid
actions of the Board.
3.4 The Board shall have the authority to interpret and construe the
Plan, to prescribe, amend and rescind rules and regulations relating to it, to
determine the details and provisions of each Agreement and make all other
determinations necessary or advisable for the administration of the Plan,
including, without limitation, the amending or modifying of outstanding Options
or Awards, provided that the Participant consents to such action. The Board
shall also have the discretion and authority to specify, with respect to Options
or Awards of a particular Participant, the effect upon such Participant's right
to exercise an Option or Award upon death, which effect might include
acceleration of the date at which an Option or Award may be exercised in full;
provided, however, that in no event may an Option or Award be exercised after
the expiration of ten (10) years from the Effective Date of Grant. The
interpretation and construction by the Board of any provisions of the Plan or
any Option or Award granted under it and all actions of the Board shall be
binding on all parties hereto. No member of the Board shall be liable for any
action or determination made in good faith with respect to the Plan or any
Option or Award granted under it.
4. ELIGIBILITY
4.1 Each Director who is not an Employee shall be a Participant.
5. AWARD OF OPTION
5.1 (a) On the date on which a Participant is first elected or
appointed as a Director of the Company during the existence of the Plan, such
Participant shall automatically be granted a non-qualified Option to purchase
60,000 Shares (an "Initial Grant").
2
<PAGE>
(b) Each year on the date on which a Participant is reelected
as a Director of the Company during the existence of the Plan, such Participant
shall automatically be granted a non-qualified Option to purchase 20,000 Shares
(an "Annual Grant").
(c) The maximum number of Shares (underlying Options granted
pursuant to Sections 5.1(a) and 5.1(b)) granted to a Participant serving as a
Director of the Company prior to the Company's 1996 annual meeting of
stockholders shall not exceed 160,000 during the lifetime of his service to the
Company. The maximum number of Shares (underlying Options granted pursuant to
Sections 5.1(a) and 5.1(b)) granted to a Participant first elected a Director of
the Company on or after the Company's 1996 annual meeting of stockholders shall
not exceed 100,000 during the lifetime of his service to the Company.
(d) The Board shall have the authority to grant additional
Options, in excess of those described in Sections 5.1(a) and 5.1(b), to a
Participant as the Board may determine in its discretion.
5.2 The Option Price per share shall be the Fair Market Value of a
Share on the Effective Date of Grant.
6. STOCK
6.1 The aggregate number of Shares which may be issued under the Plan
shall be 1,600,000 Shares.
6.2 In the event that any outstanding Award under the Plan expires or
is terminated for any reason, the Awarded Shares subject to that Award may again
be the subject of an Award under the Plan.
7. TERMS AND CONDITIONS
7.1 Awards granted pursuant to the Plan shall be evidenced by
Agreements, which Agreements shall contain or shall be subject to the following
terms and conditions, whether or not such terms and conditions are specifically
included therein:
(a) Number of Shares. Each Initial Grant Agreement shall state
that it pertains to 60,000 Shares. Each Annual Grant Agreement shall state that
is pertains to 20,000 Shares.
(b) Date. Each Agreement shall state the Effective Date of
Grant.
(c) Price. Each Agreement shall state the Option Price.
3
<PAGE>
(d) Method and Time of Payment. With respect to any Award, or
portion thereof, the Option Price shall be payable on the exercise of the Award
and shall be paid in cash, in Shares (including Shares acquired pursuant to the
Plan), or a combination of both. Shares transferred in payment of the Option
Price shall be valued as of date of transfer based on their then Fair Market
Value.
(e) Transfer of Option or Stock. No Award shall be
transferable by the Participant, except by will or the laws of descent and
distribution upon the Participant's death and subject to any other limitations
of the Plan. In addition to any other restriction hereunder or otherwise
provided in the Agreement with the Participant, no Shares acquired pursuant to
an Award may be sold, transferred or otherwise disposed of prior to the end of
the six month period which begins on the Effective Date of Grant of such Award.
(f) Recapitalization. Appropriate adjustments shall be made in
the number of Awarded Shares and in the aggregate number of Shares which may be
issued under the Plan in order to give effect to changes made in the number of
outstanding Shares as a result of a merger, consolidation, recapitalization,
reclassification, combination, stock dividend, stock split, or other relevant
change. Notwithstanding the foregoing, (i) Options subject to grant or
previously granted under the Plan at the time of any event described above shall
be subject to only such adjustment as shall be necessary to maintain the
proportionate interest of the Participant and preserve, without exceeding, the
value of such Options, and (ii) the number of Shares subject to award under the
Plan at the time of any event described above shall be subject to only such
adjustment as shall be necessary to maintain the relative proportionate interest
represented by such Shares immediately prior to any such event.
(g) Investment Purpose.
(i) The Company shall not be obligated to sell or
issue any Shares pursuant to any Award unless such Shares are at the
time effectively registered or exempt from registration under the 1933
Act. The determination of whether a Share is exempt from registration
shall be made by the Company's legal counsel and its determination
shall be conclusive and binding on all parties hereto.
(ii) Notwithstanding anything in the Plan to the
contrary, each Award under the Plan shall be granted on the condition
that the purchases of Shares thereunder shall be for investment
purposes and not with a view for resale or distribution except that in
the event the Shares subject to such Award are registered under the
1933 Act, or in the event of a resale of such Shares without such
registration that would otherwise be permissible, such condition shall
be inoperative if in the opinion of counsel for the Company such
condition
4
<PAGE>
is not required under the 1933 Act or any other applicable law,
regulation, or rule of any governmental agency.
(h) Vesting Schedule. An Option may not be exercised prior to
the date it is vested. Each Initial Grant shall be subject to a vesting schedule
which will provide that 20% of the total Shares subject to the Option shall vest
on each of the first five (5) anniversaries of the Effective Grant Date. Each
Annual Grant shall be subject to a vesting schedule which will provide that 33
1/3% of the total Shares subject to the Option shall vest on each of the first
three (3) anniversaries of the Effective Grant Date.
(i) Duration of Award. Options granted pursuant to the Plan
will have a term of ten (10) years from the Effective Date of Grant. An Option
granted pursuant to an Award shall terminate when it has been fully exercised,
unless terminated sooner pursuant to the provisions of this paragraph 7.1(i).
If for any reason a Participant ceases to be a Director of the Company
one year or more after the Director's initial election or appointment to the
Board while holding an Option granted under the Plan, such Options as have
vested on or prior to such time shall continue to be exercisable for a period of
three (3) years after such termination or the remainder of the term of the
Option, whichever is shorter. If for any reason a Participant ceases to be a
Director of the Company within one year after the Director's initial election or
appointment to the Board, such Option shall be canceled as of the date of such
termination.
7.2 The Company may place such legends on stock certificates
representing the Shares as the Company, in its sole discretion, deems necessary
or appropriate to reflect restrictions under the Plan, the Agreement, the Code,
the securities laws or otherwise.
7.3 Notwithstanding any provision herein to the contrary, service as a
Director shall be at the pleasure of the shareholders of the Company. Nothing
contained in the Plan or in any Award granted pursuant to it shall confer upon
any Participant a right to continue as a Director.
7.4 Any person entitled to exercise an Option may do so in whole or in
part by delivering to the Company at its principal office, attention Corporate
Secretary, a written notice of exercise. The written notice shall specify the
number of Shares for which an option is being exercised. The notice shall be
accompanied by full payment of the option Price for the Shares being purchased.
During the Participant's lifetime, an option may be exercised only by the
Participant, or on the Participant's behalf by the Participant's legal guardian.
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7.5 A Participant shall have no rights as a stockholder with respect to
any Shares subject to an Option until the date of the issuance of a stock
certificate to him for such Shares. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such stock certificate is issued, except as provided in Plan Section 7.1(f).
8. AMENDMENT OR DISCONTINUANCE OF PLAN
8.1 The Board may at any time amend, suspend or discontinue the Plan;
provided, however, that without further approval of the shareholders of the
Company no amendments by the Board shall:
(a) Change the class of persons eligible to participate;
(b) Increase the aggregate number of Shares which may be issued
under the Plan, except as provided in Section 6.1 of the Plan; or
(c) Otherwise be made if shareholder approval is required to
satisfy the requirements of Rule 16(b)(3) promulgated under the
1934 Act.
8.2 No amendment to the Plan shall alter or impair any Award granted
under the Plan without the consent of the holders thereof.
8.3 Articles 4, 5 and 7 of the Plan, in the aggregate, may not be
amended more than once every six months, unless such amendment is permitted by
Rule 16b- 3(c)(2)(ii)(B) under the 1934 Act.
9. INDEMNIFICATION OF BOARD
In addition to such other rights of indemnification as they may have as
Directors, the members of the Board shall be indemnified by the Company against
the reasonable expenses, including attorneys' fees, actually incurred in
connection with the defense of any pending, threatened or possible action, suit
or proceeding, or in connection with any pending, threatened or possible appeal
therein, to which they or any of them may be a party by reason of any actual or
alleged action taken or failure to act under or in connection with the Plan or
any option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by the Company) or paid
by them in satisfaction of a judgment in any such action, suit or proceeding,
except in relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such Board member is liable for gross negligence or
willful misconduct in the performance of his duties; provided that within sixty
days after institution of any such action, suit or proceeding a Board member
shall in writing
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offer the Company the opportunity, at its own expense, to handle and defend the
same.
10. NO OBLIGATION TO EXERCISE OPTION
The granting of an Option shall impose no obligation upon the
Participant to exercise such Option.
11. EFFECTIVE DATE; DURATION OF THE PLAN
11.1 The Plan shall become effective as of December 29, 1993.
11.2 No Award may be made after the tenth anniversary of the effective
date of the Plan.
7
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
April 3, 1998
AccuStaff Incorporated
One Independent Drive
Jacksonville, FL 32202
Ladies and Gentlemen:
We have acted as counsel to AccuStaff Incorporated, a Florida
corporation (the "Company"), in connection with the Registration
Statement on Form S-8 (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 1,000,000 shares of the Company's
common stock, par value $0.01 per share (the "Common Stock"),
pursuant to the AccuStaff Incorporated Amended and Restated Non-
Employee Director Stock Plan (the "Plan").
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 Common Stock will be legally issued, fully paid and
non-assessable when: (i) the Registration Statement shall have become
effective under the Securities Act; (ii) the Common Stock shall have
been issued and sold in the manner contemplated by the Plan; and
(iii) certificates representing the Common Stock shall have been
executed, countersigned and registered and delivered to the
purchasers against payment of the agreed consideration therefor.
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 Common
Stock for the Company 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.
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
AccuStaff Incorporated on Form S-8 of our report dated March 20, 1998, on our
audits of the consolidated financial statements of AccuStaff Incorporated as of
December 31, 1997, which report is included in this Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
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Jacksonville, Florida
April 6, 1998
