As filed with the Securities and Exchange Commission on May 21, 1999
Registration No. 333-_______
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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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MODIS PROFESSIONAL SERVICES, INC.
(Exact name of registrant as specified in charter)
Florida 59-3116655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Independent Drive, Jacksonville, FL 32202
(Address of principal executive office, including zip code)
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MODIS PROFESSIONAL SERVICES, INC.
AMENDED AND RESTATED 1995 STOCK OPTION PLAN
------------------------------------
Marc M. Mayo, Esq.
Senior Vice President, Secretary
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, FL 32202
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<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
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<S> <C> <C> <C> <C>
Common Stock $.01
par value per share 8,000,000 shares $14.21 $113,680,000 $31,603
================================================================================================
(1) Estimated solely for purposes of determining the registration fee. This
amount, calculated pursuant to Rule 457(c), was based on the average of the
high and low prices of the Registrant's Common Stock on May 17, 1999, as
reported on the New York Stock Exchange.
</TABLE>
-----------------------
<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 in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999;
(c) 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 Company 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.
Item 5. Interests of Named Experts and Counsel
Not applicable.
<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.
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 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,
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<PAGE>
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.
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
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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.
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description
4.1 Articles of Incorporation, as amended (incorporated by reference to
the Company's Definitive Proxy Statement on Schedule 14A filed July
14, 1998).
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<PAGE>
4.2 Amended and Restated Bylaws (incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998).
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
10.1 Modis Professional Services, Inc. Amended and Restated 1995 Stock
Option Plan (incorporated by reference to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998).
23.1 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included in Exhibit
5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included as part of the signature page hereto).
Item 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% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) of this Section do not
apply if the Registration Statement is on Form 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.
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<PAGE>
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. Subsequent Documents Incorporated by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed the
initial bona fide offering thereof.
C. Indemnification of Officers, Directors and Controlling Persons.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Jacksonville, Florida, on May 18, 1999.
MODIS PROFESSIONAL SERVICES, INC.
By: /s/ Derek E. Dewan
-------------------------------
Name: Derek E. Dewan
Title: Chairman, President and Chief
Executive Officer
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<PAGE>
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Derek E. Dewan, Michael D. Abney, Marc M.
Mayo, and Robert P. Crouch and each of them (with full power in each to act
alone), as his true and lawful attorneys- in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on May 18, 1999.
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, Treasurer, Chief
- ---------------------------- Financial Officer and Director (principal
Michael D. Abney financial officer)
/s/ Robert P. Crouch Vice President and Chief Accounting Officer
- ---------------------------- (principal accounting officer)
Robert P. Crouch
/s/ John K. Anderson Director
- ----------------------------
John K. Anderson
/s/ T. Wayne Davis Director
- ----------------------------
T. Wayne Davis
/s/ Daniel M. Doyle Director
- ----------------------------
Daniel M. Doyle
/s/ Peter J. Tanous Director
- ----------------------------
Peter J. Tanous
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 Articles of Incorporation, as amended (incorporated by reference to
the Company's Definitive Proxy Statement on Schedule 14A filed July
14, 1998).
4.2 Amended and Restated Bylaws (incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998).
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
10.1 Modis Professional Services, Inc. Amended and Restated 1995 Stock
Option Plan (incorporated by reference to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998).
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
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
May 19, 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
8,000,000 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 Modis Professional Services, Inc. Amended and Restated 1995 Stock Option
Plan (the "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. Upon issuance, delivery and payment therefor in accordance with the
terms of the Plan, 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,
\s\ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT 23
[PRICEWATERHOUSECOOPERS LOGO]
PricewaterhouseCoopers LLP
50 N. Laura Street, Suite 3000
Jacksonville, FL 32202-3658
Telephone (904)354-0671
Facsimile (904) 366-3678
Consent of Independent Accountants
May 11, 1999
Consent of PricewaterhouseCoopers LLP
We 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 for the year ended
December 31, 1998.
\s\ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
