As filed with the Securities and Exchange Commission on October 1, 1999
Registration No. 333-_______
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
Form S-8
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)
One Independent Drive, Jacksonville, FL 32202
(Address of principal executive office, including
zip code)
------------------------------------
MODIS PROFESSIONAL SERVICES, INC.
RETIREMENT SAVING PLAN
MODIS PROFESSIONAL SERVICES, INC.
EXECUTIVE OPTION PLAN
(Full title of plans)
------------------------------------
Marc M. Mayo, Esq. Copies to:
Senior Vice President, Secretary Pamela K. Phillips, Esq.
and General Counsel LeBoeuf, Lamb, Greene & MacRae, L.L.P.
One Independent Drive 50 N. Laura St., Suite 2800
Jacksonville, Florida 32202 Jacksonville, FL 32202
904-360-2000 904- 354-8000
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------
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 1,450,000 shares $13.69 $19,850,000 $5,156
$.01 par value per share
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of determining the registration fee. This
amount, calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), was based on the average high and low prices of
the common stock of Modis Professional Services, Inc. as reported on the New
York Stock Exchange on September 30, 1999.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the Modis Professional Services, Inc. Retirement Savings Plan.
<PAGE>
PART I
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 THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by reference into
this Registration Statement and are deemed to be a part thereof from the date of
the filing of such documents:
(a) The Company's Annual Report on Form 10-K, as amended on Form 10-K/A,
for the fiscal year ended December 31, 1998;
(b) The Modis Professional Services, Inc. Retirement Savings Plan's Annual
Report on Form 11-K for the year ended December 31, 1998;
(c) The Company's Quarterly Reports on Form 10-Q for the quarter ended
March 31, 1999, and for the quarter ended June 30, 1999; and
(d) The description of the Company's Common Stock set forth in the
Company's registration statement filed pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and any amendment or
report filed for the purpose of updating any such description.
All other documents subsequently filed by the Registrant 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
Registration Statement and to be a part thereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities
Not applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel
Not applicable.
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.
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 amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expenses of litigating the
II-2
<PAGE>
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) and 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.
II-3
<PAGE>
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, 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 7. Exemption from Registration Claimed.
Not applicable.
II-4
<PAGE>
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
10.1 Executive Option Plan
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).
The undersigned Registrant hereby undertakes that it has submitted the
Modis Professional Services, Inc. Retirement Savings Plan (the "Plan") and any
amendments thereto to the Internal Revenue Service ("IRS") in a timely manner,
and has made or will make all changes required by the IRS in order to qualify
the Plan under Section 401 of the Internal Revenue Code of 1986, as amended.
Item 9. 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
Securities 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 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;
II-5
<PAGE>
provided, however, that paragraphs (1)(i) and (1)(ii) of this Section 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
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 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed 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.
II-6
<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Jacksonville, Florida, on September 30, 1999.
MODIS PROFESSIONAL SERVICES, INC.
(Registrant)
By: /s/ Derek E. Dewan
Name: Derek E. Dewan
Title: Chairman, President and Chief
Executive Officer
II-7
<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 30, 1999.
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, Treasurer, Chief
Michael D. Abney Financial Officer and Director (principal
financial officer)
/s/ Robert P. Crouch Vice President and Chief Accounting Officer
Robert P. Crouch (principal accounting officer)
/s/ John R. Kennedy Director
John R. Kennedy
/s/ T. Wayne Davis Director
T. Wayne Davis
/s/ Peter J. Tanous Director
Peter J. Tanous
II-8
<PAGE>
The Plans. Pursuant to the requirements of the Securities Act of 1933, the
Modis Professional Services, Inc. Retirement Savings Plan and the Modis
Professional Services, Inc. Executive Option Plan have duly caused this
Registration Statement to be signed on their behalf by the undersigned plan
administrator, thereunto duly authorized, in the City of Jacksonville, State of
Florida, on September 30, 1999.
Modis Professional Services, Inc.
Retirement Savings Plan and Executive
Option Plan
Modis Professional Services, Inc.
(Plan Administrator)
By: /s/ Robert P. Crouch
Name: Robert P. Crouch
Vice President and Chief Accounting
Officer
II-9
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
10.1 Executive Option Plan
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).
EXHIBIT 5.1
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
October 1, 1999
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-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
500,000 additional shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"), to be issued pursuant to the Modis Professional
Services, Inc. Retirement Savings Plan, adopted on July 1, 1997 (the "Retirement
Savings Plan"), and with respect to 950,000 shares of the Company's common
stock, par value $0.01 per share, to be issued pursuant to the Modis
Professional Services, Inc. Executive Option Plan (the "Executive Option Plan").
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. The Common Stock will be legally issued, fully paid and non-assessable
in accordance with the terms of the Retirement Saving Plan or of the Executive
Option Plan, upon issuance, delivery and payment.
<PAGE>
Modis Professional Services, Inc.
October 1, 1999
Page 2
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,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT 10.1
MODIS PROFESSIONAL SERVICES, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement"), entered into as of this date
of January 1, 1999, by and between Modis Professional Services, Incorporated, a
Florida corporation (the "Company"), and Derek E. Dewan (the "Optionee").
WHEREAS, the Company desires to afford the Optionee the opportunity to
acquire shares of the Company's common stock so the Optionee has a proprietary
interest in the Company, and the Optionee desires the opportunity to acquire
shares of the Company; and
WHEREAS, by action of the Compensation Committee of the Board of Directors,
the Company granted to the Optionee an option to purchase 950,000 shares
("Option"); and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such Option;
NOW THEREFORE, as an employment incentive and to encourage stock ownership,
and also in consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. Grant of Option and Purchase Price. Effective January 1, 1999, the Company
hereby grants to the Optionee, subject to the terms, restrictions, limitations
and conditions stated herein, an Option to purchase 950,000 shares of the
Company's common stock, par value $.01 per share (the "Stock"), at a price of
$14.6250 per share ("Option Price").
2. Vesting. The Option granted hereunder shall be vested upon grant and
immediately exercisable by the Optionee.
3. Exercise Terms. The Optionee must exercise the Option for at least the lesser
of 100 shares or the number of shares of purchasable stock as to which the
Option remains unexercised. In the event this Option is not exercised with
respect to all or any part of the shares subject to this Option prior to its
expiration, the shares with respect to which this Option was not exercised shall
no longer be subject to this Option.
4. Transferability. The Option granted hereunder may only be transferred by the
Optionee during his lifetime to any member of his immediate family or a trust
established for the exclusive benefit of one or more members of his immediate
family (hereinafter referred to as "Transferees"). For purposes of this Section
4, the term "immediate family" is defined as the Optionee's spouse, former
spouse, children, stepchildren, grandchildren (including relationships arising
from legal adoption), and parents. The Options may also be transferred by will
or the laws of descent and distribution or pursuant to a Qualified Domestic
Relations Order.
<PAGE>
5. Notice of Exercise of Option. This Option may be exercised by the Optionee,
Transferee, or by the Optionee's administrators, executors, or personal
representatives, by a written notice (in substantially the form of the Notice of
Exercise attached hereto as Schedule A) signed by the Optionee, Transferee, or
by such administrators, executors or personal representatives, and delivered or
mailed to the Corporate Secretary or such other individual as the Company may
designate. Any such notice shall (a) specify the number of shares of Stock which
the Optionee, Transferee, or Optionee's administrators, executors or personal
representatives, as the case may be, then elects to purchase hereunder, (b)
contain such information as may be reasonably required pursuant to Section 11,
and (c) be accompanied by (i) a certified or cashier's check payable to the
Company in payment of the total Exercise Price applicable to such shares as
provided herein, (ii) shares of Stock owned by the Optionee and duly endorsed or
accompanied by stock transfer powers having a Fair Market Value equal to the
total exercise Price applicable to such shares purchased hereunder or (iii) a
certified or cashier's check accompanied by the number of shares of stock whose
Fair Market Value when added to the amount of the check equals the total
Exercise Price applicable to such shares purchased hereunder. Upon receipt of
any such notice and accompanying payment, and subject to the terms hereof, the
Company agrees to issue to the Optionee, Transferee, or the Optionee's
administrators, executors or personal representatives, stock certificates for
the number of shares specified in such notice registered in the name of the
person exercising the Option. The Company may establish rules regarding the
types of shares the Optionee may transfer in payment of the Option Price in
order to avoid adverse accounting treatment.
6. Adjustment in Shares Subject to the Option. The Company, in its sole and
absolute discretion, may make appropriate adjustments in the number of shares
subject to this Option or the Option Price in order to give effect to changes
made in the number of outstanding shares as the result of a merger,
consolidation, recapitalization, reclassification, combination, stock dividend,
stock split or other relevant change. The Company shall not be obligated to make
any such adjustments, and its determination shall be final and binding on all
parties hereto.
7. Termination of Employment.
(a) In the event of the termination of the Optionee's employment with the
Company or any of its Subsidiaries, other than a termination that is
either (i) for Cause, (ii) voluntary on the part of the Optionee and
without written consent of the Company, or (iii) for reasons of death
or disability or retirement, the Option granted hereunder will
terminate upon the earlier of: (1) the full exercise of the Option,
(2) the expiration of ten years, or (3) six months after such
termination. "Cause" shall mean theft or destruction of property of
the Company, a Parent, or a Subsidiary, disregard of Company rules or
policies, or conduct evincing
2
<PAGE>
willful or wanton disregard of the interests of the Company. Such
determination shall be made by the Board of Directors or a Committee
established by such Board based on information presented by the
Company and the Optionee and shall be final and binding on all parties
hereto.
(b) In the event of a termination of the Optionee's employment that is
either (i) for Cause, or (ii) voluntary on the part of the Optionee
and without the written consent of the Company, this Option, to the
extent not previously exercised, shall terminate immediately and shall
not thereafter be or become exercisable.
(c) In the event of the retirement of the Optionee at the normal
retirement date as prescribed from time to time by the Company or any
Subsidiary, the Optionee shall continue to have the right to exercise
any Options for shares which were purchasable on the date of the
Optionee's retirement (provided that, on the date which is three
months after the date of retirement, the Options will become void and
unexercisable unless on the date of retirement the Optionee enters
into a noncompetition agreement with the Company and continues to
comply with such noncompetition agreement). This Option does not
confer upon the Optionee any right with respect to continuance of
employment by the Company or any of its Subsidiaries. This Option
shall not be affected by any change of employment so long as the
Optionee remains employed with the Company or one of its Subsidiaries.
8. Disabled Optionee. In the event of a termination of employment because of the
Optionee's disability, the Optionee (or his personal representative) may
exercise this Option at any time within six months after such termination.
9. Death of Optionee. In the event of the Optionee's death while employed by the
Company or any of its Subsidiaries or within three months after a termination of
employment (unless such termination was (i) for Cause, or (ii) voluntary on the
part of the Optionee and without the written consent of the Company), the
appropriate persons described in Section 5 hereof or the persons to whom all or
a portion of this Option is transferred in accordance with Section 4 hereof may
exercise this Option at any time within a period ending on the earlier of (a)
the last day of the three months period following the Optionee's death or (b)
the expiration date of this Option.
10. Rights as Shareholder or Employee. This Option shall not entitle the
Optionee or Transferee to any rights as a shareholder of the Company with
respect to any shares subject to this Option until such Option has been
exercised and any such shares issued.
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11. Withholding. The Company reserves the right to make any necessary or
appropriate arrangements to comply with all applicable withholding requirements.
The Company shall have no obligation to deliver a certificate evidencing the
shares purchased upon exercise of the Option unless and until withholding
arrangements satisfactory to the Company are made. Failure to comply with the
required withholding arrangements shall result in forfeiture of any benefits
hereunder.
12. Compliance with Regulatory Matters. The Optionee acknowledges that the
issuance of capital stock of the Company is subject to limitations imposed by
federal and state law and the Optionee hereby agrees that the Company shall not
be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate any law or rule, regulation, order or consent
decree of any regulatory authority (including without limitation the Securities
and Exchange Commission) having jurisdiction over the affairs of the Company.
The Optionee agrees that he will provide the Company with such information as is
reasonably requested by the Company or its counsel to determine whether the
issuance of Stock complies with the provisions described by this Section 12.
13. Entire Agreement. This Agreement constitutes the entire Agreement between
the Optionee and the Company with respect to the Option granted hereunder.
14. Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto and their
representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be governed by,
the laws of the State of Florida.
(c) Any requests or notices to be given hereunder shall be deemed given,
and any elections or exercises to be made or accomplished shall be
deemed made or accomplished, upon actual delivery thereof to the
designated recipient, or three days after deposit thereof in the
United States mail, registered, return receipt requested and postage
prepaid, addressed to the Optionee, at the address set forth below
and, as to the Company, to the executive offices of the Company at One
Independent Drive, Jacksonville, FL 32202.
(d) This Agreement may not be modified except in writing executed by each
of the parties hereto.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused this
Stock Option Agreement to be executed on behalf of the Company and the Company
seal to be affixed hereto and attested to, and the Optionee has executed this
Stock Option Agreement under seal, to be made effective January 1, 1999.
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Modis Professional Services, Inc. Optionee
By: /s/ T. Wayne Davis By: /s/ Derek E. Dewan
------------------ ------------------
Name: T. Wayne Davis Name: Derek E. Dewan
Title: Chairman, Address: 7003 Gaines Court
Compensation Committee Jacksonville, FL 32207
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Schedule A
Notice of Exercise
The undersigned hereby notified Modis Professional Services, Inc. (the
"Company") of this election to exercise the undersigned's stock option to
purchase _______shares of the Company's common stock, par value $.01 per share
(the "Common Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the undersigned and the Company dated January 1, 1999. Accompanying this
Notice is (1) a certified or cashier's check in the amount payable to the
Company, and/or (2) _________shares of the Company's Common Stock presently
owned by the undersigned and duly endorsed or date hereof of $__________, such
amounts being equal, in the aggregate, to the purchase price per share set forth
in the Agreement multiplied by the number of shares being purchased hereby.
IN WITNESS WHEREOF, the undersigned has set his hand and seal, this day of
_________________, _____.
OPTIONEE [OR TRANSFEREE,
OPTIONEE'S ADMINISTRATOR,
EXECUTOR OR PERSONAL
REPRESENTATIVE]
Name:
Position (if other than Optionee):
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EXHIBIT 23.2
Consent of Independent Accountants
September 30, 1999
Consent of PricewaterhouseCoopers LLP
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Modis Professional Services, Inc. of our report dated
March 26, 1999 relating to the consolidated financial statements appearing in
Modis Professional Services, Inc.'s Annual Report on Form 10-K, as amended on
Form 10-K/A, for the year ended December 31, 1998. We also consent to the
incorporation by reference in this Registration Statement of our report dated
June 11, 1999 relating to the financial statements appearing in the Annual
Report of Modis Professional Services, Inc. Retirement Savings Plan on Form 11-K
for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Jacksonville, Florida
