As filed with the Securities and Exchange Commission on July 1, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACCUSTAFF INCORPORATED
(Exact name of registrant as specified in its charter)
Florida No. 59-3116655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Independent Drive, Jacksonville, Florida 32202
(Address of principal executive office, including zip code)
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ACTIUM TOOLS, INC.
1996 EQUITY COMPENSATION PLAN
ACTIUM TOOLS, INC.
1997 STOCK OPTION PLAN
ACTIUM TECHNOLOGIES, INC.
1996 EQUITY COMPENSATION PLAN
ACTIUM TECHNOLOGIES, INC.
1997 STOCK OPTION PLAN
(Full title of plans)
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Marc M. Mayo
Senior Vice President and General Counsel
AccuStaff Incorporated
One Independent Drive, Jacksonville Florida, 32202
(904) 360-2000
(Name, address and telephone number, including area code, of agent for service)
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Copies to:
Pamela K. Phillips, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, Florida 32202
(904) 354-8000
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of each class Proposed Proposed maximum
of securities to be Amount to be maximum offering aggregate offering Amount of
registered registered* price per share** price** registration fee
- ------------------- ------------ ----------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, 312,000 $30.96875 $9,662,250 $2,851
$.01 par value per shares
share
</TABLE>
*In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers any additional securities to be offered or
issued in connection with a stock split, stock dividend or similar transaction.
**Determined on the basis of the average of the high and low sale price on June
25, 1998, solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by AccuStaff,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference in this Registration
Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Company's Quarterly Report on Form 10-Q for the fiscal year ended
March 31, 1998.
3. The Company's Current Report on Form 8-K dated June 8, 1998.
4. The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A filed pursuant to 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 Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be part
hereof from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel.
The legality of the shares of Common Stock of the Company will be passed
upon for the Company by LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Item 6. Indemnification of Directors and Officers.
Article 10 of the Bylaws of the Company require the Company, 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 Company.
The Company's Bylaws also provide that the Company may purchase insurance
on behalf of one or more of its directors, irrespective of whether the Company
would be obligated to indemnify or advance expenses to such director. The
Company has purchased insurance to protect directors, officers, employees or
other agents and the Company from any liability asserted against them for acts
taken or omissions occurring in their capacities as such.
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 amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expenses of litigating the proceeding
to conclusion, actually and reasonably incurred in connection with the defense
or settlement of such proceeding, including any appeal thereof, 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 indemnify for such expenses as 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 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 subsection (1)
or subsection (2) of Section 607.0850, unless pursuant to a determination 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 subsection (1) or subsection (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 the committee prescribed in paragraph (b); or
(2) if a quorum of directors cannot be obtained under paragraph (a),
and the committee cannot be designated under paragraph (b), selected 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.
Section 607.0850(6) provides that 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 or
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 such offices. 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, or
omissions to act, were material to the cause of action so adjudicated and
constitute (a) a violation of the 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) a
transaction from which the director, officer, employee or agent derived an
improper personal benefit, (c) in the case of a director, a circumstance where
the liability provisions of Section 607.0834 of the FBCA (relating to unlawful
distributions) are applicable, or (d) willful misconduct or a 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 the right of a shareholder.
Item 8. Exhibits.
Exhibit No.
*4(a) Articles of Incorporation of the Company, as amended. (Incorporated
herein by reference to Exhibit 3.1 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1995.)
*4(b) Bylaws of the Company, as amended. (Incorporated herein by reference
to Exhibit 3.2 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1996.)
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23(a) Consent of Coopers & Lybrand L.L.P.
23(b) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included in
Exhibit 5)
24 Power of Attorney (included on the signature page of this
Registration Statement)
- --------------------
*Incorporated herein by reference.
Item 9. Undertakings.
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 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 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 end 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 a 20 percent 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) do not apply if the
registration statement is on Form 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 Securities and
Exchange Commission by the Registrant pursuant to section 13 or section 15(d) of
the Exchange Act, that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at 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.
(4) 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 Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) 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 provisions described under Item 6 above, 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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, 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
attorney-in-fact and agent, 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 and 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.
SIGNATURES
The Registrant. 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-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 the 30th day
of June, 1998.
ACCUSTAFF INCORPORATED
By: /s/ Derek E. Dewan
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Derek E. Dewan
Chairman, 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/ Derek E. Dewan Chairman of the Board, June 30, 1998
- ---------------------------- Chief Executive Officer,
Derek E. Dewan President and Director
(principal executive officer)
/s/ Michael D. Abney Senior Vice President, June 30, 1998
- ---------------------------- Chief Financial Officer,
Michael D. Abney Secretary, Treasurer and
Director (principal financial
director)
/s/ Robert P. Crouch Vice President and Controller June 30, 1998
- ---------------------------- (principal accounting officer)
Robert P. Crouch
/s/ John K. Anderson, Jr. Director June 30, 1998
- ----------------------------
John K. Anderson, Jr.
/s/ T. Wayne Davis Director June 30, 1998
- ----------------------------
T. Wayne Davis
/s/ Daniel M. Doyle Director June 30, 1998
- ----------------------------
Daniel M. Doyle
/s/ Peter J. Tanous Director June 30, 1998
- ----------------------------
Peter J. Tanous
EXHIBIT INDEX
Exhibit
No. Page No.
- ------- --------
*4(a) Articles of Incorporation of the Company, as amended.
(Incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended
December 31, 1995.)
*4(b) Bylaws of the Company, as amended. (Incorporated herein
by reference to Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1996.)
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23(a) Consent of Coopers & Lybrand L.L.P.
23(b) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
(included in Exhibit 5)
24 Power of Attorney (included on the signature page of
this Registration Statement)
- -----------------------------
*Incorporated herein by reference
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
A Limited Liability Partnership Including
Professional Corporations
125 West 55th Street
New York, NY 10019-5389
June 30, 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") to be filed by the Company on or shortly after the
date hereof with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to 312,000 additional
shares of the Company's common stock, par value $0.01 per share (the "Common
Stock"), to be issued pursuant to options outstanding under the Actium Tools,
Inc. 1996 Equity Compensation Plan, as amended, the Actium Tools, Inc. 1997
Stock Option Plan, as amended, the Actium Technologies, Inc. 1996 Equity
Compensation Plan, as amended and the Actium Technologies, Inc. 1997 Stock
Option Plan, as amended (the "Plans"), which options were assumed by the Company
in accordance with the Agreement and Plan of Merger, dated March 24, 1998, among
the Company, Actium of Delaware, Inc., Actium of Delaware II, Inc., Actium of
Delaware III, Inc., Actium Technologies, Inc., Actium Tools, Inc. and Actium
Corporation (the "Actium Transaction"). The Actium Transaction became effective
on March 26, 1998.
In connection with this opinion, we have made such investigations and have
considered such matters of law and of fact, including the examination of
originals or copies, certified or otherwise identified to our satisfaction, of
such records and documents of the Company, certificates of officers and
representatives of the Company, certificates of public officials and such other
documents as we have deemed appropriate as a basis for the opinions hereinafter
set forth. With respect to all of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to the originals of all documents submitted to
us as copies.
Based upon the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. Upon issuance, delivery and payment therefor in accordance with the
terms of the Plans, the Common Stock will be legally issued, fully paid and
non-assessable.
This opinion is limited to the laws of the State of Florida and the Federal
laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name therein.
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,
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
Consent of Coopers & Lybrand, 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 and
Subsidiaries as of December 31, 1997 and 1996, and for each of the three years
in the period ended December 31, 1997, which report is included in the Annual
Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Jacksonville, Florida
June 29, 1998
