<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 29, 1999.
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TMP WORLDWIDE INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 13-3906555
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1633 BROADWAY, 33RD FLOOR
NEW YORK, NEW YORK 10019
(Address of Principal Executive Office) (Zip Code)
</TABLE>
TMP WORLDWIDE INC.
1999 LONG TERM INCENTIVE PLAN
(full title of the plan)
------------------------
ANDREW J. MCKELVEY
CHAIRMAN OF THE BOARD AND CEO
TMP WORLDWIDE INC.
1633 BROADWAY, 33RD FLOOR
NEW YORK, NEW YORK 10019
(Name and address of agent for service)
(212) 977-4200
(Telephone number, including area code, of agent for service)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) SHARE PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, $.001 par value......... 12,136,832 shares $59.75 (2) $725,175,712(2) $201,599
Common Stock, $.001 par value......... 1,470,020 shares $26.875(3) $ 39,506,788(3) $ 10,983
Common Stock, $.001 par value......... 701,200 $38.00 (4) $ 26,645,600(4) $ 7,408
Common Stock, $.001 par value......... 5,000 $43.00 (5) $ 215,000(5) $ 60
Common Stock, $.001 par value......... 599,620 $45.00 (6) $ 26,982,900(6) $ 7,502
Common Stock, $.001 par value......... 87,328 $46.25 (7) $ 4,038,920(7) $ 1,123
TOTAL................................. 15,000,000 shares(8) $228,675
</TABLE>
(1) This registration statement shall also cover any additional indeterminable
number of shares as may be required pursuant to the TMP Worldwide Inc. 1999
Long Term Incentive Plan in the event of a stock dividend, stock split,
recapitalization or other similar change in the Common Stock.
(2) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of calculating
the registration fee, based upon the average high and low prices of the
Common Stock as reported on the Nasdaq National Market on June 25, 1999.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to rule 457(h) and based on an exercise price of $26.875 per share
with respect to options granted to purchase 1,470,020 shares of Common
Stock.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to rule 457(h) and based on an exercise price of $38.00 per share
with respect to options granted to purchase 701,200 shares of Common Stock.
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to rule 457(h) and based on an exercise price of $43.00 per share
with respect to options granted to purchase 5,000 shares of Common Stock.
(6) Estimated solely for the purpose of calculating for registration fee
pursuant to rule 457(h) and based on an exercise price of $45.00 per share
with respect to options granted to purchase 599,620 shares of Common Stock.
(7) Estimated solely for the purpose of calculating the registration fee
pursuant to rule 457(h) and based on an exercise price of $46.25 per share
with respect to options granted to purchase 87,328 shares of Common Stock.
(8) Represents the number of shares of Common Stock under this registration
statement that may be issued under the TMP Worldwide Inc. 1999 Long Term
Incentive Plan.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by TMP Worldwide Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) the Registrants' Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(c) the Registrant's Current Report on Form 8-K, dated June 10, 1999;
(d) the Registrant's Current Report on Form 8-K, dated March 5, 1999;
(e) the Registrant's Current Report on Form 8-K, dated February 12,
1999
(f) the Registrant's Current Report on Form 8-K, dated February 1,
1999; and
(g) the description of Registrant's Common Stock contained in its
Registration Statement on Form 8-A as filed with the Commission on October
16, 1996 and all amendments thereto.
In addition, all documents filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 (the "Exchange
Act") subsequent to the date of this filing and 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 herein by reference and to be a part thereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant maintains: (i) Bylaws which limit personal liability of
Registrant's directors, officers and controlling persons, to the fullest extent
permitted by the General Corporation Law of the State of Delaware, which are
incorporated herein by reference to Exhibit 3.2 of the Registration Statement;
and (ii) indemnification agreements with its current directors and executive
officers, which are incorporated herein by reference to Exhibit 10.2 of the
Registration Statement.
The Registrant maintains directors and officers liability insurance for its
directors and executive officers providing for $10 million of coverage.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
(a) See Index to Exhibits.
II-1
<PAGE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Act;
(b) 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
herein;
(c) to include any material information with respect to the plan of
distribution not previously disclosed herein or any material change to
such information in this registration statement; provided, however, that
the undertakings set forth in paragraphs (i) and (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 Exchange Act
that are incorporated herein by reference;
(2) that for the purpose of determining any liability under the 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; and
(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.
(a) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Act, 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 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.
(b) Insofar as indemnification for liabilities arising under the 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 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 against the Registrant 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-2
<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 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 New York, State of New York on this 28th day of June,
1999.
<TABLE>
<S> <C>
TMP WORLDWIDE INC.
/s/ ANDREW J. MCKELVEY
------------------------------------------------
By: Andrew J. McKelvey
Title: Chairman of the Board and CEO
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ ANDREW J. MCKELVEY Chairman of the Board and
- ------------------------------ CEO (principal executive June 28, 1999
Andrew J. McKelvey officer)
/s/ JAMES J. TREACY Chief Operating Officer and
- ------------------------------ Director June 28, 1999
James J. Treacy
/s/ BART CATALANE Chief Financial Officer
- ------------------------------ (principal financial and June 28, 1999
Bart Catalane accounting officer)
/s/ GEORGE R. EISELE Director
- ------------------------------ June 28, 1999
George R. Eisele
/s/ JOHN R. GAULDING Director
- ------------------------------ June 28, 1999
John R. Gaulding
/s/ MICHAEL KAUFMAN Director
- ------------------------------ June 28, 1999
Michael Kaufman
/s/ JOHN SWANN Director
- ------------------------------ June 28, 1999
John Swann
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
4.1 TMP Worldwide Inc. 1999 Long Term Incentive Plan
4.2 Form of Stock Option Agreement
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Pannell Kerr Forster, P.C.
23.3 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1)
</TABLE>
<PAGE>
EXHIBIT 4.1
TMP WORLDWIDE INC.
1999 LONG TERM INCENTIVE PLAN
1. GENERAL.
(a) PURPOSE. The purpose of the TMP Worldwide Inc. 1999 Long Term
Incentive Plan (the "Plan") is to establish a flexible vehicle through which TMP
Worldwide Inc. (the "Company") can offer equity-based compensation incentives to
eligible recipients with a view toward promoting the long-term financial success
of the Company and enhancing stockholder value.
(b) TYPES OF AWARDS. Awards under the Plan may be in the form of any one
or more of the following: (1) stock options, including "incentive stock options"
("ISOs") within the meaning of Section 422 of the Internal Revenue Code of 1986
(the "Code") and options which do not qualify as ISOs ("NQSOs"), described in
Section 5; (2) stock appreciation rights ("SARs"), described in Section 6; (3)
awards of restricted stock ("Restricted Stock"), described in Section 7; (4)
performance-based awards ("Performance-Based Awards") described in Section 8;
(5) automatic grants of NQSOs to Non-Employee Directors (within the meaning of
Section 9(a)) described in Section 9; and (6) such other types of equity-based
awards as the Committee (defined herein) deems advisable, including, without
limitation, phantom stock awards, stock bonus awards, and dividend equivalent
awards.
(c) STOCK COVERED BY AWARDS. Awards made under the Plan will be made in
the form of or with reference to shares of the Company's common stock, $.001 par
value ("Common Stock"). Shares of Common Stock available for issuance under the
Plan may be either authorized and unissued or held by the Company in its
treasury. No fractional shares of Common Stock will be delivered under the Plan.
(d) DOCUMENTATION OF AWARDS. Each award made under the Plan will be
evidenced by a written agreement or other written instrument the terms of which
will be established by the Committee. To the extent not inconsistent with the
provisions of the Plan, the written agreement or other instrument evidencing an
award will govern the rights and obligations of the parties with respect to the
award.
2. ADMINISTRATION.
(a) COMMITTEE. The Plan will be administered by a committee (the
"Committee") of two or more members of the Company's Board of Directors (the
"Board"). The members of the Committee will be appointed by and serve at the
pleasure of the Board. Unless the Board determines otherwise, each member of the
Committee must be a "non-employee director" within the meaning of Rule 16b-3
issued under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). The Plan will be administered by the Board with respect to discretionary
grants made to Non-Employee Directors.
(b) AUTHORITY OF COMMITTEE. Subject to the limitations of the Plan, the
Committee, acting in its sole and absolute discretion, will have full power and
authority to (1) select the persons to whom awards will be made under the Plan,
(2) make awards to such persons and prescribe the terms and conditions of such
awards (including, without limitation, nonsolicitation, confidentiality and
mandatory dispute resolution conditions), (3) interpret and apply the provisions
of the Plan and of any agreement or other document evidencing an award made
under the Plan, (4) carry out any responsibility or duty specifically reserved
to the Committee under the Plan, and (5) make any and all determinations and
interpretations and take such other actions as may be necessary or desirable in
order to carry out the provisions, intent and purposes of the Plan. A majority
of the members of the Committee will constitute a quorum. The Committee may act
by the vote of a majority of its members present at a meeting at which there is
a quorum or by unanimous written consent. The decision of the Committee as to
any disputed question, including questions of construction, interpretation and
administration, will be final and conclusive on all persons.
(c) DELEGATION OF AUTHORITY. The Committee may delegate any of its powers
and duties under the Plan to such officers of the Company or other persons as
the Committee deems appropriate in accordance with such guidelines as the
Committee may establish, provided, however, that no such
<PAGE>
delegation may be made (1) with respect to any award intended to qualify for the
performance-based compensation exception of Section 162(m)(4)(C) of the Code, or
(2) to the extent it would enable the delegate to grant, fix the terms of or
amend or cancel an award under the Plan to an individual who is required to file
reports with respect to securities of the Company pursuant to Section 16(a) of
the Exchange Act.
(d) INDEMNIFICATION. The Company will indemnify and hold harmless each
member of the Committee and any employee or director of the Company or an
affiliate to whom any duty or power relating to the administration or
interpretation of the Plan is delegated from and against any loss, cost,
liability (including any sum paid in settlement of a claim with the approval of
the Board), damage and expense (including legal and other expenses incident
thereto) arising out of or incurred in connection with the Plan, unless and
except to the extent attributable to such person's fraud or wilful misconduct.
3. PARTICIPATION. (a) Awards may be granted under the Plan to any member
of the Board (whether or not an employee of the Company or an affiliate), to any
officer or other employee of the Company or an affiliate and to any consultant
or other independent contractor who performs or will perform services for the
Company or an affiliate. In selecting participants and determining the nature
and terms of awards made under the Plan, the Committee may give consideration to
the functions and responsibilities of a potential recipient, his or her previous
and/or expected contributions to the business of the Company or its affiliates
and such other factors as the Committee deems relevant under the circumstances.
(b) Non-Employee Directors will receive automatic grants of NQSOs pursuant
to Section 9.
4. LIMITATIONS ON AWARDS UNDER THE PLAN.
(a) AGGREGATE NUMBER OF SHARES. The maximum number of shares of Common
Stock that may be issued under the Plan is the sum of (1) 15,000,000, and (2)
the number of shares remaining available for new awards under the TMP Worldwide
Inc. 1996 Stock Option Plan, as amended, and the TMP Worldwide Inc. 1996 Stock
Option Plan for Non-Employee Directors (collectively, the "Prior Plans")
including, without limitation, shares covered by any option outstanding under
the Prior Plans which, by reason of the subsequent expiration or cancellation of
the option, are not issued under the Prior Plans. In determining the number of
shares that remain issuable under the Plan at any time after the date the Plan
is adopted, the following shares will be deemed not to have been issued (and
will be deemed to remain available for issuance) under the Plan: (i) shares
remaining under an award made under this Plan or under an option granted under
the Prior Plans that terminates or is canceled without having been exercised or
earned in full; (ii) shares subject to an award under this Plan where cash is
delivered to the holder of the award in lieu of such shares; (iii) shares of
restricted stock awarded under this Plan that are forfeited in accordance with
the terms of the applicable award; and (iv) shares that are withheld in order to
pay the purchase price of shares acquired upon the exercise of outstanding
options granted under the Prior Plans or of awards granted under the Plan or to
satisfy the tax withholding obligations associated with such exercise. The
number of shares of Common Stock issued in connection with the exercise of an
option under the Prior Plans or an award under the Plan will be determined net
of any previously-owned shares tendered by the holder of the option or award in
payment of the exercise price or of applicable withholding taxes.
(b) INDIVIDUAL AWARD LIMITS. The maximum number of shares of Common Stock
for which stock options may be granted under the Plan to any person in any
calendar year shall be 1,000,000. The maximum number of shares of Common Stock
subject to SARs granted under the Plan to any person in any calendar year shall
be 1,000,000. The aggregate maximum number of shares of Common Stock subject to
awards, other than options or SARs, that may be granted under the Plan to any
person in any calendar year shall be 1,000,000. For purposes of this subsection,
the repricing of a stock option or SAR shall be treated as a new grant to the
extent required under Section 162(m) of the Code. Subject to these limitations,
each person eligible to participate in the Plan will be eligible in any year to
receive
2
<PAGE>
awards covering up to the full number of shares of Common Stock then available
for awards under the Plan. No more than $1,000,000 may be paid to any individual
with respect to any cash Performance-Based Award covered by Section 8. In
applying this limitation, multiple Performance-Based Awards to the same
individual will be subject to a single $1,000,000 limit if they are either (1)
determined by reference to performance periods of one year or less ending with
or within the same fiscal year of the Company, or (2) determined by reference to
one or more multi-year performance periods ending in the same fiscal year of the
Company.
5. STOCK OPTIONS AWARDS.
(a) ISOS AND NQSOS. Subject to the provisions hereof, including, without
limitation, this Section and Sections 10 and 11, the Committee may grant ISOs
and NQSOs to eligible personnel to purchase shares of Common Stock upon such
terms and conditions as the Committee deems appropriate, provided that the
Committee may only grant ISOs to employees of the Company and its "subsidiaries"
within the meaning of Section 424 of the Code.
(b) REPLACEMENT OPTIONS. The Committee, acting in its discretion, may
provide with respect to an option granted pursuant to this Section 5 (including,
without limitation, any option described in this subsection) that, if the
grantee, while still an employee or otherwise in the service of the Company or
an affiliate, exercises the option in whole or in part using shares of Common
Stock that were owned by the holder for at least six months prior to such
exercise to pay the exercise price, then the grantee will automatically receive
an additional option ("replacement option") to purchase shares of Common Stock.
The number of shares covered by a replacement option may not be greater than the
number of shares used to pay the exercise price under the original option plus
the number of shares withheld by the Company for the payment of income taxes
associated with the exercise of the original option (whether or not such income
taxes are required to be withheld). Unless the Committee determines otherwise, a
replacement option will not become exercisable, if at all, for at least six
months after the date it is granted and, unless sooner terminated, will expire
ten years after the date the option is granted. The Committee may prescribe such
rules and procedures in connection with the exercise of options and the issuance
of replacement options as it deems appropriate, including, without limitation,
procedures for telephonic exercise.
(c) EXERCISE PRICE. The purchase price per share of Common Stock covered
by an option granted pursuant to this Section 5 will be determined by the
Committee when the option is granted. The purchase price per share of Common
Stock covered by an NQSO must be at least equal to the par value per share of
Common Stock on the date the option is granted, provided, however, that the
purchase price per share of Common Stock covered by an NQSO which is a
replacement option (described in the preceding subsection) or which is an option
intended to qualify for the performance-based compensation exception of Section
162(m)(4)(C) of the Code, may not be less than the fair market value per share
of Common Stock (determined under the next subsection) on the date the option is
granted. The purchase price per share of Common Stock covered by an ISO may not
be less than 100% of the fair market value of a share of Common Stock on the
date the ISO is granted (or, in the case of an optionee who, at the time the
option is granted, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or a "subsidiary" of the
Company within the meaning of Section 424 of the Code, 110%).
(d) FAIR MARKET VALUE OF COMMON STOCK. For all purposes of the Plan, the
fair market value of a share of Common Stock on any date will be equal to the
closing price per share as published by the principal national securities
exchange (including, but not limited to, NASDAQ) on which shares of the Common
Stock are traded on such date or, if there is no sale of Common Stock on such
date, the average of the bid and asked prices on such exchange at the close of
trading on such date, or if shares of the Common Stock are not listed on a
national securities exchange on such date, the closing price or, if none, the
average of the bid and asked prices in the over the counter market at the close
of
3
<PAGE>
trading on such date, of if the Common Stock is not traded on a national
securities exchange or the over the counter market value of a share of the
Common Stock on such date as determined in good faith by the Board.
(e) OPTION PERIOD. Subject to the provisions hereof, unless the Committee
determines otherwise, no option granted pursuant to this Section 5 may be
exercised within six months after the date the option is granted. Unless sooner
terminated, all such options will expire ten years after the date the option is
granted (or, in the case of an ISO granted to a ten percent stockholder
described in Section 424 of the Code, five years).
(f) VESTING CONDITIONS. The Committee may establish such vesting and other
restrictions on the exercise of an option and/or upon the disposition of the
stock acquired upon the exercise of an option as it deems appropriate. Unless
the Committee prescribes otherwise, during an optionee's employment or service
with the Company or an affiliate, each option granted pursuant to this Section 5
(other than a replacement option) will be subject to a four-year vesting
schedule pursuant to which, unless sooner terminated or accelerated, the option
will become vested as to 25% of the shares originally covered thereby at the end
of each of the first four years following the date of grant, and each
replacement option will become fully vested as to all of the shares covered
thereby on the first anniversary of the date the option is granted.
(g) EXERCISE OF OPTIONS. An option may be exercised by transmitting to the
Company (1) a notice specifying the number of shares to be purchased and (2)
payment of the exercise price, together with the amount, if any, deemed
necessary by the Committee to enable the Company to satisfy its federal, foreign
or other tax withholding obligations with respect to such exercise (unless other
arrangements acceptable to the Company are made with respect to the satisfaction
of such withholding obligations). The Committee may establish such rules and
procedures as it deems appropriate for the exercise of options under the Plan,
including, without limitation, procedures for telephonic exercise. The purchase
price of shares of Common Stock acquired pursuant to the exercise of an option
granted under the Plan may be paid in cash and/or such other form of payment as
may be permitted by the Committee under the option agreement, including, without
limitation, shares of Common Stock which have been owned by the holder for at
least six (6) months and installment payments under the optionee's promissory
note.
(h) RIGHTS AS A STOCKHOLDER. No shares of Common Stock will be issued in
respect of the exercise of an option granted under the Plan until full payment
therefor has been made (and/or provided for where all or a portion of the
purchase price is being paid in installments), and the applicable income tax
withholding obligation has been satisfied or provided for. The holder of an
option will have no rights as a stockholder with respect to any shares covered
by an option until the date a stock certificate for such shares is issued to him
or her. Except as otherwise provided herein, no adjustments shall be made for
dividend distributions or other rights for which the record date is prior to the
date such stock certificate is issued.
(i) OTHER PROVISIONS. The Committee may impose such other conditions with
respect to the exercise of options, including, without limitation, any
conditions relating to the application of federal or state securities laws or
exchange requirements, as it may deem necessary or advisable.
6. STOCK APPRECIATION RIGHTS.
(a) GENERAL. Subject to the provisions hereof, the Committee may award
SARs to eligible personnel upon such terms and conditions as it deems
appropriate. A SAR is an award entitling the holder, upon exercise, to receive
an amount, in cash or shares of Common Stock or a combination thereof, as
determined by the Committee in its sole discretion, determined with reference to
the appreciation, if any, in the fair market value of Common Stock during the
period beginning on the date the SAR is granted and ending on the date the SAR
is exercised.
4
<PAGE>
(b) TYPES OF SARS. SARs may be awarded under the Plan in conjunction with
a stock option award ("tandem SARs") or independent of any stock option award
("stand-alone SARs"). Tandem SARs awarded in conjunction with a NQSO may be
awarded either at or after the time the NQSO is granted. Tandem SARs awarded in
conjunction with an ISO may only be awarded at the time the ISO is granted.
(c) EXERCISABILITY OF SARS. Unless the Committee determines otherwise, no
SAR may be exercised until the expiration of six months from the date the SAR is
awarded. Except as otherwise provided herein, a tandem SAR will be exercisable
only at the same time and to the same extent and subject to the same conditions
as the related option is exercisable. The exercise of a tandem SAR will cancel
the related option to the extent of the shares of Common Stock with respect to
which the SAR is exercised, and vice versa. Tandem SARs may be exercised only
when the fair market value of the Common Stock to which it relates exceeds the
option exercise price. The Committee may impose such additional service or
performance-based vesting conditions upon the exercise of a SAR (tandem or
stand-alone) as it deems appropriate.
(d) EXERCISE OF SARS. A SAR may be exercised by giving written notice to
the Company identifying the SAR that is being exercised, specifying the number
of shares covered by the exercise and containing such other information or
statements as the Committee may require. The Committee may establish such rules
and procedures as it deems appropriate for the exercise of SARs under the Plan,
including, without limitation, procedures for telephonic exercise. Upon the
exercise of a SAR, the holder will be entitled to receive an amount (in cash
and/or shares of Common Stock as determined by the Committee) equal to the
product of (1) the number of shares with respect to which the SAR is being
exercised and (2) the difference between the fair market value of a share of
Common Stock on the date the SAR is exercised (or such other exercise price as
may be specified in the award) and the exercise price per share of the SAR. As a
condition of exercise, the holder must pay to the Company or make arrangements
satisfactory to the Company for the payment of applicable withholding taxes.
(e) DEFERRAL OF PAYMENT. The Committee may at any time and from time to
time provide for the deferral of delivery of any shares and/or cash for which an
SAR may be exercisable until such date or dates and upon such other terms and
conditions as the Committee may determine.
7. RESTRICTED STOCK AWARDS.
(a) GENERAL. Subject to the provisions of the Plan, the Committee may
award shares of Common Stock to eligible personnel upon such terms and subject
to such forfeiture and other conditions as the Committee deems appropriate. The
terms and conditions of any such stock award will be evidenced by a written
restricted stock agreement or other instrument approved for this purpose by the
Committee.
(b) STOCK CERTIFICATES FOR RESTRICTED STOCK. Unless the Committee elects
to use a different method (such as, for example, the issuance and delivery of
stock certificates) shares of restricted stock will be evidenced by book entries
on the Company's stock transfer records pending the expiration of restrictions
thereon. If a stock certificate for restricted stock is issued in the name of
the grantee, it will bear an appropriate legend to reflect the nature of the
restrictions applicable to the shares represented by the certificate, and the
Committee may require that such stock certificates be held in custody by the
Company until the restrictions on such shares have lapsed. The Committee may
establish such other conditions as it deems appropriate in connection with the
issuance of stock certificates for shares of restricted stock, including,
without limitation, a requirement that the grantee deliver a duly signed stock
power, endorsed in blank, for the shares covered by the award.
(c) PURCHASE PRICE. The purchase price payable for shares of restricted
stock awarded under the Plan will be determined by the Committee. To the extent
permitted by applicable law, the purchase price may be as low as zero and, to
the extent required by the applicable law, the purchase price will be no less
than the par value of the shares covered by the award.
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<PAGE>
(d) RESTRICTIONS AND VESTING. The Committee will establish such conditions
as it deems appropriate on the grant or vesting of restricted stock awarded
under the Plan. Such conditions may be based upon continued service, the
attainment of performance goals (which, in the case of grants of restricted
stock intended to qualify for the performance-based compensation exception under
Section 162(m)(4)(C) of the Code, satisfy the requirements of Section 8) and/or
such other relevant factors or criteria designated by the Committee. The holder
of restricted stock will not be permitted to transfer shares of restricted stock
awarded under the Plan before the time the applicable vesting conditions are
satisfied.
(e) RIGHTS AS A STOCKHOLDER. Except as provided herein and as otherwise
determined by the Committee, the recipient of a restricted stock award shall
have with respect to his or her restricted stock all of the rights of a holder
of shares of Common Stock, including, without limitation, the right to receive
any dividends, the right to vote such shares and, subject to satisfaction of the
applicable vesting conditions, the right to tender such shares. The Committee
may, in its sole discretion, determine at the time of grant that the payment of
dividends will be deferred until, and conditioned upon, the satisfaction of the
applicable vesting conditions.
(f) LAPSE OF RESTRICTIONS. If and when the vesting conditions are
satisfied with respect to a restricted stock award, a certificate for the shares
covered by the award, to the extent vested, will be delivered to the grantee.
All legends shall be removed from said certificates at the time of delivery
except as otherwise required by applicable law.
8. PERFORMANCE-BASED AWARDS.
(a) GENERAL. The Committee may condition the exercise, vesting or
settlement of an award made under the Plan on the achievement of specified
performance goals. The provisions of this Section will apply in the case of a
performance-based award that is intended to generate "qualified performance-
based compensation" within the meaning of Section 162(m) of the Code.
(b) OBJECTIVE PERFORMANCE GOALS. A performance goal established in
connection with an award covered by this Section must be (1) objective, in the
sense that a third party having knowledge of the relevant facts could determine
whether the goal is met, (2) prescribed in writing by the Committee before the
beginning of the applicable performance period or at such later date (when
fulfillment is substantially uncertain) as may be permitted under Section 162(m)
of the Code, and (3) expressed in the following manner with respect to any one
or more of the following business criteria:
(A) attainment of certain target levels of, or a specified percentage
increase in, revenues, income before income taxes and extraordinary items
(determined in accordance with standards established by Opinion No. 30 of
the Accounting Principles Board), net income, earnings before income tax,
earnings before interest, taxes, depreciation and amortization or a
combination of any or all of the foregoing;
(B) attainment of certain target levels of, or a percentage increase in,
after-tax or pre-tax profits;
(C) attainment of certain target levels of, or a specified increase in,
operational cash flow;
(D) achievement of a certain level of, reduction of, or other specified
objectives with regard to limiting the level of increase in, all or a
portion of, the Company's bank debt or other long-term or short-term
public or private debt or other similar financial obligations of the
Company, which may be calculated net of such cash balances and/or other
offsets and adjustments as may be established by the Committee;
(E) attainment of a specified percentage increase in earnings per share or
earnings per share from continuing operations;
6
<PAGE>
(F) attainment of certain target levels of, or a specified increase in
return on capital employed or return on invested capital;
(G) attainment of certain target levels of, or a percentage increase in,
after-tax return on stockholders' equity;
(H) attainment of certain target levels of, or a specified increase in,
economic value added targets based on a cash flow return on investment
formula;
(I) attainment of certain target levels in the fair market value of the
shares of the Company's Common Stock; and
(J) growth in the value of an investment in the Company's Common Stock
assuming the reinvestment of dividends.
If and to the extent permitted under Section 162(m) of the Code, such
performance goals may be determined without regard to (or adjusted for) changes
in accounting methods, corporate transactions (including, without limitation,
dispositions and acquisitions) and other similar types of events or
circumstances occurring during the applicable performance period. The Committee
may not delegate any responsibility with respect to the establishment or
determination of performance goals to which awards covered by this Section are
subject.
(c) CALCULATION OF PERFORMANCE-BASED AWARD. At the expiration of the
applicable performance period, the Committee will determine the extent to which
the performance goals established pursuant to this Section are achieved and the
percentage of each performance-based award that has been earned. The Committee
may reduce the amount that would otherwise be payable pursuant to an award
covered by this Section, but may not exercise its discretion to increase such
amount.
9. NON-EMPLOYEE DIRECTOR STOCK OPTION AWARDS.
(a) DEFINITION. For all purposes hereof, the term "Non-Employee Director"
means any member of the Board who is not also an employee of the Company of any
affiliate.
(b) AUTOMATIC GRANTS. Without further action by the Board or the
stockholders of the Company, (1) each Non-Employee Director shall, subject to
the terms of the Plan, be granted an option to purchase 11,250 shares of Common
Stock on the date he or she first commences service as a Non-Employee Director
provided such date occurs after the date the Plan is adopted (the "Initial
Grant"), and (2) each Non-Employee Director will be granted an option to
purchase 2,500 shares of Common Stock on the trading day following each annual
meeting of the Company's stockholders that occurs after the date the Plan is
adopted and at least one year after the date he or she first became a
Non-Employee Director (the "Annual Grant").
(c) OPTION AGREEMENT. Stock options granted pursuant to this Section 9
will be NQSOs. Such options shall be evidenced by written option agreements on a
form approved by the Board. Such agreements shall contain such terms and
conditions as are not inconsistent with the terms and conditions hereof.
(d) TERMS OF OPTIONS.
(i) EXERCISE PRICE. The purchase price per share deliverable upon the
exercise of an option shall be 100% of the closing price of such
Common Stock, as published by the principal national securities
exchange (including, but not limited to, NASDAQ) on which shares of
the Common Stock are traded on such date, at the date of the grant
of the Option.
(ii) VESTING CONDITIONS. An Initial Grant will be 50% vested at the
time of the grant, and will become 100% vested on the first
anniversary of the date of grant, provided the optionee is still a
Non-Employee Director on the vesting date. An Annual Grant will
7
<PAGE>
become vested as to 50% of the shares originally covered thereby
on each of the first two anniversaries of the grant date, provided
the optionee is still a Non-Employee Director on the vesting date.
(iii) EFFECT OF TERMINATION OF SERVICE. The provisions of Section
11(a) shall apply to options granted pursuant to this Section 9.
(iv) CAPITAL TRANSACTIONS; CHANGE IN CONTROL. The provisions of
Section 12 shall apply to options granted pursuant to this Section
9.
(e) EXPIRATION. Except as otherwise provided herein, if not previously
exercised, each option will expire on the tenth anniversary of the date of
grant.
10. NON-TRANSFERABILITY OF AWARDS. No stock option, SAR, Performance Award
or other stock-based award under the Plan shall be transferable by the recipient
other than upon the recipient's death to a beneficiary designated by the
recipient in a manner acceptable to the Committee, or, if no designated
beneficiary shall survive the recipient, pursuant to the recipient's will or by
the laws of descent and distribution. All stock options and SARs shall be
exercisable during the recipient's lifetime only by the recipient. Tandem stock
appreciation rights shall be transferable, to the extent permitted above, only
with the underlying stock option. Shares of restricted stock may not be
transferred prior to the date on which shares are issued, or, if later, the date
on which such shares have vested and are free of any applicable restriction
imposed hereunder. Except as otherwise specifically provided by law or the
provisions hereof, no award received under the Plan may be transferred in any
manner, and any attempt to transfer any such award shall be void, and no such
award shall in any manner be liable for or subject to the debts, contracts,
liabilities, engagements or torts of any person who shall be entitled to such
award, nor shall it be subject to attachment or legal process for or against
such person. Notwithstanding the foregoing, the Committee may determine at the
time of grant or thereafter that an NQSO is transferable in whole or part to
such persons, under such circumstances, and subject to such conditions as the
Committee may prescribe.
11. EFFECT OF TERMINATION OF EMPLOYMENT OR SERVICE. Unless otherwise
determined by the Committee at grant or, if no rights of the participant are
thereby reduced, thereafter, and subject to earlier termination in accordance
with the provisions hereof, the following rules apply with regard to vesting and
exercise of awards held by a participant at the time of his or her termination
of employment or other service with the Company and its affiliates.
(a) RULES APPLICABLE TO STOCK OPTIONS AND SARS.
(1) TERMINATION BY REASON OF DEATH. If a participant's employment or
service terminates by reason of his or her death, then any stock option or
SAR held by the deceased participant will thereupon become fully vested and
may be exercised by the deceased participant's beneficiary at any time
within one year from the date of death but in no event after expiration of
the stated term.
(2) TERMINATION BY REASON OF DISABILITY. If a participant's employment
or service terminates by reason of his or her disability (defined below),
then any stock option or SAR held by the participant, to the extent
exercisable on the date his or her employment or service terminates, may be
exercised by the participant at any time within one year from the date his
or her employment or service terminates but in no event after expiration of
the stated term. If the participant dies during such one-year period and
before the option or SAR is exercised, then the deceased participant's
beneficiary may exercise the option or SAR, to the extent exercisable by the
deceased participant immediately prior to his or her death, for a period of
one year following the date of death but in no event after expiration of the
stated term. For the purposes hereof, the term "disability" means the
inability of a participant to perform the customary duties of his or her
8
<PAGE>
employment or other service for the Company or an affiliate by reason of a
physical or mental incapacity which is expected to result in death or be of
indefinite duration.
(3) OTHER TERMINATION. If a participant's employment or service
terminates for any reason (other than death or disability) or no reason,
then all stock options and SARs held by the participant, to the extent
otherwise exercisable on the date his or her employment or service is
terminated, may be exercised by the participant at any time within a period
of six months from the termination date, but in no event beyond the
expiration of the stated term of such stock options and SARs.
(b) RULES APPLICABLE TO RESTRICTED STOCK. Upon the termination of a
participant's employment or service for any reason (including death and
disability) or no reason, restricted stock which has not yet become fully vested
will, unless otherwise determined by the Committee, automatically be forfeited
by the participant (or the participant's successors) and any certificate
therefor or book entry with respect thereto or other evidence thereof will be
canceled.
(c) RULES APPLICABLE TO PERFORMANCE-BASED AWARDS. Upon termination of a
participant's employment or service for any reason (including death and
disability) or no reason, then the participant's outstanding performance-based
awards will, unless otherwise determined by the Committee, thereupon expire and
the participant (or his or her beneficiary, as the case may be) will not be
entitled to receive any amount in respect of the performance period or cycle
within which the participant's employment or service is terminated.
(d) RULES APPLICABLE TO OTHER STOCK-BASED AWARDS. Rules similar to those
set forth in subsection (b) (relating to restricted stock awards) will apply in
connection with the termination of employment or service of a participant who
holds any other form of stock-based award granted under the plan that has not
yet vested and/or is contingent upon future performance of services.
12. CAPITAL CHANGES; CHANGE IN CONTROL.
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The aggregate number and
class of shares for which awards may be granted under the Plan, the maximum
number of shares covered by awards that may be granted to any individual in any
calendar year, the number and class of shares covered by each outstanding award
and, if applicable, the exercise price per share shall all be adjusted
proportionately or as otherwise appropriate to reflect any increase or decrease
in the number of issued shares of Common Stock resulting from a split-up or
consolidation of shares or any like capital adjustment, or the payment of any
stock dividend, and/or to reflect a change in the character or class of shares
covered by the Plan arising from a readjustment or recapitalization of the
Company's capital stock.
(b) CHANGE IN CONTROL. If, in connection with a Change in Control (defined
below), the stockholders of the Company receive capital stock of another
corporation ("Exchange Stock") in exchange for their shares of Common Stock
(whether or not such Exchange Stock is the sole consideration), and if the Board
so directs, then all outstanding options will be converted into options to
purchase shares of Exchange Stock. The number of shares and exercise price under
the converted options will be determined by adjusting the number of shares and
exercise price for the options granted hereunder on the same basis as the
determination of the number of shares of Exchange Stock the holders of Common
Stock will receive in connection with the Change in Control and, unless the
Board determines otherwise, the vesting conditions with respect to the converted
options will be substantially the same as the vesting conditions set forth in
the original option agreement. If the Board does not direct the conversion of
outstanding options in connection with a Change in Control, then all optionees
will be permitted to exercise their outstanding options in whole or in part
(whether or not otherwise vested or exercisable) prior to the Change in Control,
and any outstanding options which are not exercised before the Change in Control
will thereupon terminate.
9
<PAGE>
(c) DEFINITION OF CHANGE IN CONTROL. For purposes hereof, the term "Change
in Control" shall be deemed to occur if (1) there shall be consummated (A) any
consolidation, merger or reorganization involving the Company, unless such
consolidation, merger or reorganization is a "Non-Control Transaction" (as
defined below) or (B) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company, or (2) the stockholders of the Company shall
approve any plan or proposal for liquidation or dissolution of the Company, or
(3) any person (as such term is used in Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), shall become
the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act)
of more than 50% of the combined voting power of the Company's then outstanding
voting securities other than (a) a person who owns or owned shares of Class B
Common Stock of the Company, (b) pursuant to a plan or arrangement entered into
by such person and the Company or (c) pursuant to receipt of such shares from a
stockholder of the Company pursuant to such stockholder's will or the laws of
descent and distribution, or (4) during any period of two consecutive years,
individuals who at the beginning of such period constitute the entire Board
shall cease for any reason to constitute a majority thereof unless the election,
or the nomination for election by the Company's stockholders, of each new
director was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period. A
"Non-Control Transaction" shall mean a consolidation, merger or reorganization
of the Company where (1) the stockholders of the Company immediately before such
consolidation, merger or reorganization own, directly or indirectly, at least a
majority of the combined voting power of the outstanding voting securities of
the corporation resulting from such consolidation, merger or reorganization (the
"Surviving Corporation"), (2) the individuals who were members of the Board of
the Company immediately prior to the execution of the agreement providing for
such consolidation, merger or reorganization constitute at least 50% of the
members of the Board of Directors of the Surviving Corporation, or a corporation
directly or indirectly beneficially owning a majority of the voting securities
of the Surviving Corporation and (3) no person (other than (a) the Company, (b)
any subsidiary of the Company, (c) any employee benefit plan (or any trust
forming a part thereof) maintained by the Company, the Surviving Corporation or
any subsidiary, or (d) any person who, immediately prior to such consolidation,
merger or reorganization, beneficially owned more than 50% of the combined
voting power of the Company's then outstanding voting securities) beneficially
owns more than 50% of the combined voting power of the Surviving Corporation's
then outstanding voting securities.
(d) FRACTIONAL SHARES. In the event of any adjustment in the number of
shares covered by any option pursuant to the provisions hereof, any fractional
shares resulting from such adjustment will be disregarded, and each such option
will cover only the number of full shares resulting from the adjustment.
(e) DETERMINATION OF BOARD TO BE FINAL. All adjustments under this Section
shall be made by the Board, and its determination as to what adjustments shall
be made, and the extent thereof, shall be final, binding and conclusive.
13. AMENDMENT AND TERMINATION. The Board may amend or terminate the Plan,
provided, however, that no such action may affect adversely the accrued rights
of the holder of any outstanding award without the consent of the holder. Except
as otherwise provided in Section 12, any amendment which would increase the
aggregate number of shares of Common Stock for which awards may be granted under
the Plan or modify the class of recipients eligible to receive stock-based
awards under the Plan shall be subject to the approval of the Company's
stockholders. The Committee may amend the terms of any agreement or certificate
made or issued hereunder at any time and from time to time provided, however,
that any amendment which would adversely affect the accrued rights of the holder
may not be made without his or her consent.
10
<PAGE>
14. NO RIGHTS CONFERRED. Nothing contained herein will be deemed to give
any individual any right to receive an option under the Plan or to be retained
in the employ or service of the Company or any affiliate of the Company.
15. GOVERNING LAW. The Plan and each option agreement shall be governed by
the laws of the State of Delaware, except as otherwise provided in the option
agreement.
16. DECISIONS AND DETERMINATIONS OF COMMITTEE TO BE FINAL. Any decision or
determination made by the Board pursuant to the provisions hereof and, except to
the extent rights or powers under this Plan are reserved specifically to the
discretion of the Board, all decisions and determinations of the Committee are
final and binding.
17. TERM OF THE PLAN. The Plan shall be effective as of December 9, 1998,
subject to the approval of the stockholders of the Company within one year from
the date of adoption by the Board. The Plan will terminate on December 9, 2008,
unless sooner terminated by the Board. The rights of any person with respect to
an award made under the Plan that is outstanding at the time of the termination
of the Plan shall not be affected solely by reason of the termination of the
Plan and shall continue in accordance with the terms of the award (as then in
effect or thereafter amended) and the Plan.
11
<PAGE>
EXHIBIT 4.2
TMP WORLDWIDE INC.
STOCK OPTION AGREEMENT
AGREEMENT ("Agreement") made as of the of , 199 , by and
between TMP WORLDWIDE INC. a Delaware corporation (the "Company")
and (the "Optionee").
W I T N E S S E T H:
WHEREAS, pursuant to the TMP Worldwide Inc. 1999 Long Term Incentive Plan
(the "Plan"), the Company desires to grant to the Optionee and the Optionee
desires to accept an option to purchase shares of common stock, $.001 par value,
of the Company (the "Common Stock") upon the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant. The Company hereby grants to the Optionee an option to purchase
shares of Common Stock at a purchase price per share of $ .
This option is intended to be treated as an option that does not qualify as an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended.
2. Vesting. Except as specifically provided otherwise herein, the option
will become exercisable, if at all, in accordance with the following schedule
based upon the number of full years of the Optionee's continuous service with
the Company or an affiliate (as defined below) of the Company following the date
of this Agreement:
<TABLE>
<CAPTION>
INCREMENTAL CUMULATIVE
PERCENTAGE OF PERCENTAGE OF
OPTION OPTION
FULL YEARS OF CONTNUOUS EMPLOYMENT/SERVICE EXERCISABLE EXERCISABLE
- ----------------------------------------------------------------- ----------------- ---------------
<S> <C> <C>
Less than 1...................................................... 0% 0%
1........................................................ 25% 25%
2........................................................ 25% 50%
3........................................................ 25% 75%
4 or more................................................ 25% 100%
</TABLE>
If the Optionee performs services for the Company or an affiliate of the Company
in a capacity other than as a director or employee, then, for purposes hereof,
those services will be deemed to be continuous until they are terminated, and
they will be deemed to be terminated at the time provided therefor in the
consulting or other agreement governing the performance of such services or, if
there is no such agreement, at the time the Company or an affiliate of the
Company notifies the Optionee that it no longer contemplates the utilization of
such services. Any fractional shares resulting from the strict application of
the incremental percentages set forth above will be disregarded and the actual
number of shares vesting on any specific date will cover only the full number of
shares determined by applying the relevant incremental percentage. Unless sooner
terminated, the option will expire if and to the extent it is not exercised
within ten years from the date hereof.
3. EXERCISE. Any portion of the option which has vested and is exercisable
may be exercised in whole or in part by delivering to the Vice-President, Human
Resources of the Company ("VP-Human Resources") at its corporate headquarters in
New York, New York (a) a written notice specifying (1) the number of shares to
be purchased, (2) the date of this Agreement and the specific number of shares
referred to in Section 1 of this Agreement, (3) the Optionee's home address and,
if the Optionee has one, the Optionee's social security or U.S. taxpayer
identification number and (4) delivery instructions with respect to the shares
of Common Stock issuable upon exercise, and (b) payment in full of the exercise
price, together with the amount, if any, deemed necessary by the Company to
enable it to satisfy any income tax withholding obligations with respect to the
exercise (unless other
<PAGE>
arrangements acceptable to the Company in its sole discretion have been made).
The Company may from time to time change (or provided alternatives to) the
method of exercise of the option granted hereunder by notice to the Optionee, it
being understood that from and after such notice the Optionee will be bound by
the method (or alternatives) specified in any such notice. The Company (in its
sole and absolute discretion) may permit all or part of the exercise price to be
paid with previously-owned shares of Common Stock, or in installments (together
with interest) evidenced by the Optionee's secured promissory note.
4. ISSUANCE OF SHARES. No shares of Common Stock shall be sold or
delivered hereunder until full payment for such shares has been made. The
Optionee shall have no rights as a stockholder with respect to any shares
covered by the option until a stock certificate for such shares is issued to the
Optionee. Except as otherwise provided herein, no adjustment shall be made for
dividends or distributions of other rights for which the record date is prior to
the date such stock certificate is issued.
5. NO ASSIGNMENT OF OPTION. This option is not assignable or transferable
except upon the Optionee's death to a beneficiary designated by the Optionee in
a written beneficiary designation filed with the Company or, if no duly
designated beneficiary shall survive the Optionee, pursuant to the Optionee's
will and/or by the laws of descent and distribution, and is exercisable during
the Optionee's lifetime only by the Optionee or the Optionee's guardian or legal
representative.
6. TERMINATION OF EMPLOYMENT OR SERVICE. If the Optionee ceases to be
employed by or to perform services for the Company or any of its affiliates for
any reason other than death, then, unless sooner terminated, that portion of the
option which is exercisable on the date of the Optionee's termination of
employment or service will remain exercisable for a period of six months after
such date (twelve months in the case of an Optionee whose employment or service
terminates by reason of disability (as defined below)), and the remaining
portion of the option will automatically expire on such date. If the Optionee's
employment or service terminates by reason of the Optionee's death, then, unless
sooner terminated, the option will become fully vested (to the extent it was not
vested on the date of death) and will remain exercisable by the Optionee's
beneficiary for a period of twelve months after the date of the Optionee's
death. Any vested option which is not exercised within the applicable six- or
twelve-month period following termination of employment or service will
automatically expire. For purposes hereof, the term "disability" means the
inability of the Optionee to perform the customary duties of the Optionee's
employment or other service for the Company or an affiliate of the Company by
reason of a physical or mental incapacity which is expected to result in death
or be of indefinite duration as determined by the Board of Directors of the
Company (the "Board") in its sole and absolute discretion.
7. SECURITIES REGISTRATION REQUIREMENT. Notwithstanding anything herein to
the contrary, the option may not be exercised unless and until a registration
statement covering the shares of Common Stock issuable upon exercise of the
option granted hereunder has been filed with and declared effective by the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
and the option shall in no event be exercisable and shares shall not be issued
hereunder if, in the opinion of counsel to the Company, such exercise and/or
issuance may result in a violation of federal or state securities laws or the
securities laws of any other relevant jurisdiction. Nothing in this Agreement
shall be deemed to obligate the Company to effect any such registration.
8. CAPITAL AND CORPORATE CHANGES.
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The number and class
of shares covered by this option and, if applicable, the exercise price per
share shall be adjusted proportionately or as otherwise appropriate to
reflect any increase or decrease in the number of issued shares of Common
Stock resulting from a split-up or consolidation of shares or any like
capital adjustment,
2
<PAGE>
or the payment of any stock dividend, and/or to reflect a change in the
character or class of shares covered by the Plan arising from a readjustment
or recapitalization of the Company's capital stock.
(b) CHANGE IN CONTROL. If, in connection with a Change in Control
(defined below), the stockholders of the Company receive capital stock of
another corporation ("Exchange Stock") in exchange for their shares of
Common Stock (whether or not such Exchange Stock is the sole consideration),
and if the Board so directs, then this option will be converted into an
option to purchase shares of Exchange Stock. The number of shares and
exercise price under the converted option will be determined by adjusting
the number of shares and exercise price under this option on the same basis
as the determination of the number of shares of Exchange Stock the holders
of Common Stock will receive in connection with the Change in Control and,
unless the Board determines otherwise, the vesting conditions with respect
to the converted options will be substantially the same as the vesting
conditions set forth herein. If the Board does not direct a conversion of
the outstanding option in connection with a Change in Control, then the
Optionee will be permitted to exercise the outstanding option in whole or in
part (whether or not otherwise vested or exercisable) prior to the Change in
Control, and any outstanding option which is not exercised before the Change
in Control will thereupon terminate.
(c) DEFINITION OF CHANGE IN CONTROL. For purposes hereof, the term
"Change in Control" shall be deemed to occur if (1) there shall be
consummated (A) any consolidation, merger or reorganization involving the
Company, unless such consolidation, merger or reorganization is a
"Non-Control Transaction" (as defined below) or (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company, or
(2) the stockholders of the Company shall approve any plan or proposal for
liquidation or dissolution of the Company, or (3) any person (as such term
is used in Section 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of 40% or more of
the Company's outstanding Common Stock other than (a) a person who owns or
owned shares of Class B Common Stock of the Company, (b) pursuant to a plan
or arrangement entered into by such person and the Company or (c) pursuant
to receipt of such shares from a stockholder of the Company pursuant to such
stockholder's will or the laws of descent and distribution, or (4) during
any period of two consecutive years, individuals who at the beginning of
such period constitute the entire Board shall cease for any reason to
constitute a majority thereof unless the election, or the nomination for
election by the Company's stockholders, of each new director was approved by
a vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period. A "Non-Control Transaction" shall
mean a consolidation, merger or reorganization of the Company where (1) the
stockholders of the Company immediately before such consolidation, merger or
reorganization own, directly or indirectly, at least a majority of the
combined voting power of the outstanding voting securities of the
corporation resulting from such consolidation, merger or reorganization (the
"Surviving Corporation"), (2) the individuals who were members of the Board
of the Company immediately prior to the execution of the agreement providing
for such consolidation, merger or reorganization constitute at least 50% of
the members of the Board of Directors of the Surviving Corporation, or a
corporation directly or indirectly beneficially owning a majority of the
voting securities of the Surviving Corporation and (3) no person (other than
(a) the Company, (b) any subsidiary of the Company, (c) any employee benefit
plan (or any trust forming a part thereof) maintained by the Company, the
Surviving Corporation or any subsidiary, or (d) any person who, immediately
prior to such consolidation, merger or reorganization, beneficially owned
more than 40% of the combined voting power of the Company) beneficially owns
more than 40% of the combined voting power of the Surviving Corporation's
then outstanding voting securities.
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(d) FRACTIONAL SHARES. In the event of any adjustment in the number of
shares covered by this option pursuant to the provisions hereof, any
fractional shares resulting from such adjustment will be disregarded, and
the option, as adjusted, will cover only the number of full shares resulting
from the adjustment.
(e) DETERMINATION OF BOARD TO BE FINAL. All adjustments under this
Section shall be made by the Board, and its determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding
and conclusive.
9. NONSOLICITATION; CONFIDENTIALITY. As a material inducement to the
Company to grant this option and to enter into this Agreement, the Optionee
hereby expressly agrees to be bound by the following covenants, terms and
conditions.
(a) During the course of the Optionee's relationship with the Company
or any of its affiliates, the Optionee has had, and will have, access to
trade secrets, proprietary and confidential information relating to the
Company and its affiliates and their respective clients, including but not
limited to, marketing data, financial information, client lists (including
without limitation, Rolodex type or computer based compilations maintained
by the Company or its affiliates or the Optionee), and details of programs
and methods, pricing policies, strategies, profit margins and software, in
each case of the Company, its affiliates and/or their respective clients.
During the term of the Optionee's relationship with one or more of the
Company and its affiliates and thereafter, the Optionee agrees to keep
secret and retain in strictest confidence all of such trade secret,
proprietary and confidential information, and will not disclose, disseminate
or use such information for the Optionee's own advantage or for the
advantage of any other person or entity. In the event disclosure of any such
trade secret, proprietary and confidential information is required or
purportedly required by law, the Optionee will provide the Company with
prompt notice of any such requirement so that the Company may seek an
appropriate protective order.
(b) Through the date which is one year after the last day of the
Optionee's employment or service for the Company or any of its affiliates
(the "Termination Date"), except prior to the Termination Date on behalf of
the Company and its affiliates in accordance with the terms of the
Optionee's employment or other relationship, the Optionee will not, directly
or indirectly, solicit or perform Business (as defined below) related
services for, or interfere with or endeavor to entice away from the Company
or any of its affiliates, any client to whom the Company or any of its
affiliates provided services at any time during the 12 months preceding the
Termination Date, or any prospective client to whom the Company or any of
its affiliates had made a formal presentation at any time during the 12
months preceding the Termination Date, and the Optionee will not, directly
or indirectly, hire, attempt to hire, solicit for employment or encourage
the departure of any employee of the Company or any of its affiliates or any
individual who was employed by the Company or any of its affiliates at any
time during the 12 months preceding the Termination Date. As used herein,
the term "Business" means the yellow pages advertising business, the
recruitment advertising business, the search and selection business, the
Internet advertising business and any other business in which the Company or
any of its affiliates is currently involved or becomes engaged at any time
prior to the Termination Date. As used in this agreement, the term
"affiliate" means an affiliate of the Company within the meaning of Rule 405
under the Securities Act of 1933, as amended.
(c) The Optionee acknowledges that in the event the Optionee violates
any provisions of this Section 9, in addition to its other rights and
remedies, the Company shall be entitled to injunctive relief without the
necessity of proving actual damages. The Optionee acknowledges that if any
provision of this Section 9 is held to be unenforceable, the court making
such holding shall have the power to modify such provision and in its
modified form such provision shall be enforced.
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(d) The Optionee acknowledges and agrees that the provisions of this
Section 9 are IN ADDITION TO, and not in lieu of, any non-solicitation,
confidentiality, non-competition and/or similar obligations which the
Optionee may have with respect to the Company and/or its affiliates, whether
by agreement, fiduciary obligation or otherwise and that the grant and
exercisability of the option contemplated by this Agreement are expressly
made contingent on the Optionee's compliance with the provisions of this
Section 9. Without in any way limiting the provisions of this Section 9, the
Optionee further acknowledges and agrees that the provisions of this Section
9 shall remain applicable in accordance with their terms after the
Optionee's Termination Date, whether the Optionee's termination or cessation
of employment or service is voluntary or involuntary.
10. NO EMPLOYMENT OR SERVICE RIGHTS. Nothing in this Agreement, including
but not limited to the provisions of Sections 15 or 16 below, shall give the
Optionee any right to continue in the service or employment of the Company or
any affiliate of the Company, or interfere in any way with the right of the
Company or any affiliate of the Company to terminate the service or employment
of the Optionee.
11. PLAN PROVISIONS. The provisions of the Plan shall govern if and to the
extent that there are inconsistencies between those provisions and the
provisions hereof. The Optionee acknowledges receipt of a copy of the Plan prior
to the execution of this Agreement.
12. ADMINISTRATION. The committee appointed by the Board to administer the
Plan will have full power and authority to interpret and apply the provisions of
this Agreement and act on behalf of the Company and the Board in connection with
this Agreement, and the decision of the committee as to any matter arising under
this Agreement shall be binding and conclusive as to all persons.
13. BINDING EFFECT; HEADINGS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. The subject headings of Sections of this Agreement are
included for the purpose of convenience only and shall not affect the
construction or interpretation of any of its provisions.
14. APPLICABLE LAW. Except with respect to Sections 15 and 16 below, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and controls and supersedes
any prior understandings, agreements or representations by or between the
parties, written or oral with respect to its subject matter and may not be
modified except by written instrument executed by the parties. The Optionee has
not relied on any representation not set forth in this Agreement.
15. AGREEMENT TO ARBITRATE CLAIMS (EMPLOYMENT AND TERMINATION OF
EMPLOYMENT).
(a) In the event the Optionee is, was or at any time hereafter becomes
an employee of the Company or any of its affiliates, any controversy or
claim (contract, tort, or statutory) under federal, state, or local law
between the Company or any of its affiliates (or any of their respective
benefit plans, benefit plan sponsors, fiduciaries, administrators,
successors and assigns) and the Optionee arising out of or in connection
with the Optionee's employment with the Company or any of its affiliates, or
the termination of that employment (with the exception of any workers'
compensation or unemployment compensation claims, claims for employee
benefits where the applicable benefit plan or pension plan expressly
specifies that its claims procedure shall culminate in an arbitration
procedure different from the one described in this Section 15 or any claim
included under or referred to in Section 9(c) or 9(d) of this Agreement),
including WITHOUT LIMITATION the construction or application of any of the
terms, provisions or conditions of this Agreement, shall be submitted to
final and binding arbitration in accordance with this Section 15. With
respect to individuals who at the time of the option grant or thereafter
are, were or at any time hereafter become employed by the Company or any of
its affiliates in, or are, were or become residents or citizens of, the
United States ("U.S. Employees"), such arbitration shall be
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compelled and enforced according to the Federal Arbitration Act and shall be
conducted according to the then-current National Rules for the Resolution of
Employment Disputes of the American Arbitration Association except as
otherwise provided herein. With respect to all individuals who are, were or
become employees of the Company or any of its affiliates who do not qualify
as U.S. Employees under the foregoing definition, such arbitration shall be
compelled, enforced and conducted according to such rules as the parties may
agree at the time of commencement of the arbitration and, in the absence of
any such agreement, in accordance with the Federal Arbitration Act and the
then-current National Rules for the Resolution of Employment Disputes of the
American Arbitration Association except as otherwise provided herein. The
current National Rules, and other information about the American Arbitration
Association, can be accessed via the Internet at WWW.ADR.ORG or can be
obtained from the Company by a request directed to its VP-Human Resources.
The arbitrator shall be appointed by agreement of the parties hereto or, if
no agreement can be reached, by the American Arbitration Association
pursuant to its rules. The arbitrator shall apply the substantive law (and
the law of remedies, if applicable) of the state or other jurisdiction in
which the claim arose, or federal law, or both, as applicable to the
claim(s) asserted. Without limiting the arbitrator's power and authority, it
is understood that (i) the arbitrator shall have exclusive authority to
resolve any dispute relating to the interpretation, applicability or
formation of this Agreement, including but not limited to the provisions of
this Section 15, and any claim that all or any part of this Agreement is
void or voidable and (ii) the arbitrator shall have the authority to
entertain motions to dismiss and motions for summary judgment by any party
and shall apply the standards governing such motions under the Federal Rules
of Civil Procedure (unless otherwise agreed to by the parties in connection
with disputes involving a non-US Employee).
(b) Without in any way limiting the breadth of the controversies or
claims intended to be covered by the arbitration agreement set forth in this
Section 15, it is understood and agreed that this agreement to arbitrate
shall include WITHOUT LIMITATION any and all controversies, claims or
allegations arising out of or in connection with the Age Discrimination in
Employment Act, the Americans with Disabilities Act, Title VII of the Civil
Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act,
the Rehabilitation Act, the Employee Retirement Income Security Act, the
Equal Pay Act, the Uniformed Services Employment and Reemployment Rights
Act, the Worker Adjustment and Retraining Notification Act, any federal,
state or local statute prohibiting discrimination or harassment (on the
basis of sex, race, color, national origin, ancestry, religion, age, marital
status, veteran status, pregnancy, sexual orientation, medical condition,
handicap, disability or otherwise), any alleged wrongful employment
practice, any alleged wrongful termination, and any allegation concerning
the failure to pay wages, bonuses, compensation or benefits.
(c) The aggrieved party must initiate arbitration by sending written
notice of an intention to arbitrate by registered or certified mail or by
courier to the other party. The notice to the Company or one of its
affiliates shall be sent to the Company's VP-Human Resources. The notice to
the Optionee shall be sent to the Optionee's last known address (as noted in
the Optionee's personnel file). This notice must contain a description of
the dispute and the remedy sought. The arbitrator shall be impartial and
experienced in employment matters. Judgment on the award the arbitrator
renders may be entered in any court having jurisdiction over the parties.
The arbitration shall be conducted in the county or within 75 miles of the
county where the Optionee is employed or was last employed by the Company or
one of its affiliates. Each party may be represented by an attorney or other
representative selected by the party. Each party shall have the right to
take the deposition of one individual and any expert witness proposed to be
utilized by another party and to make requests for production of documents;
additional discovery may be had only where the arbitrator selected pursuant
to this Section 15 so orders, upon showing of substantial need. Each party
shall have the right to subpoena witnesses and documents for the
arbitration. At least
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30 days before the arbitration, each party must provide to the other lists
of witnesses, including any expert, and copies of all exhibits intended to
be used at arbitration.
(d) Each party to the arbitration shall equally share the fees and
costs of the arbitrator. Each party will deposit funds or post other
appropriate security for its share of the arbitrator's fees, in an amount
and manner determined by the arbitrator, 10 days before the first day of
hearing. If the Optionee cannot pay the Optionee's share of arbitrator fees
and other related costs due to financial hardship, the Optionee can make a
request to the arbitrator for financial relief. If the arbitrator agrees
that the Optionee cannot pay and grants the Optionee's request, the other
party to the arbitration (or the Company) shall advance the Optionee's share
of the fee and other related costs, or any portion thereof so ordered by the
arbitrator. If this occurs, the Optionee understands that the arbitrator is
required to address the Optionee's share of the arbitrator's fee and other
related costs, and the Optionee's potential obligation to reimburse the
other party to the arbitration (or the Company) for that fee and those
costs, in the arbitrator's decision. Each party to the arbitration shall pay
for its own costs and attorneys' fees, if any, incurred in pursuing or
defending the claim submitted to arbitration. However, if any party prevails
on a statutory claim which affords the prevailing party attorneys' fees, or
if there is a written agreement providing for attorneys' fees, the
arbitrator may award reasonable attorneys' fees to the prevailing party. The
arbitrator may also award costs, including the cost of the arbitrator's
fees, to the prevailing party.
(e) This agreement to arbitrate shall survive the expiration or
termination of this Agreement and termination of the Optionee's employment
for any reason. This arbitration procedure, which substitutes an arbitral
forum for a judicial forum, is intended to be the exclusive method of
resolving any claim arising out of or in connection with the Optionee's
employment with the Company or any of its affiliates, or the termination of
that employment, with the exception of any workers' compensation claim or
unemployment compensation claim, any claim for employee benefits where the
applicable benefit plan or pension plan expressly specifies that its claims
procedure shall culminate in an arbitration procedure different from the one
described in this Section 15 or any claim or obligation included under or
referred to in Section 9(c) or 9(d) of this Agreement. If any part of this
agreement to arbitrate is found to be void as a matter of law or public
policy, the remainder of the agreement to arbitrate will continue to be in
full force and effect to the maximum extent permissible.
(f) No claim may be brought under this arbitration procedure on behalf
of any other person or entity. The Company and its affiliates (and any of
their respective benefit plans, benefit plan sponsors, fiduciaries,
administrators, successors or assigns) reserve the right to sever or
consolidate claims in each instance at its option in order to facilitate
case processing and to lower costs.
16. AGREEMENT TO ARBITRATE CLAIMS (NON-EMPLOYMENT MATTERS).
(a) Any controversy or claim (contract, tort, or statutory) under
federal, state, or local law between the Company or any of its affiliates
(or any of their respective benefit plans, benefit plan sponsors,
fiduciaries, administrators, successors and assigns) and the Optionee that
is not covered by the provisions of Section 15 above, including but not
limited to those arising out of or in connection with the Optionee's
services for the Company or any of its affiliates in a capacity other than
as an employee, or the termination of those services (with the exception of
any workers' compensation claim or unemployment compensation claim, any
claim for employee benefits where the applicable benefit plan or pension
plan expressly specifies that its claims procedure shall culminate in an
arbitration procedure different from the one described in Section 15 above
or any claim included under or referred to in Section 9(c) or 9(d) of this
Agreement), including WITHOUT LIMITATION the construction or application of
any of the terms, provisions or conditions of this Agreement (in the event
the provisions of Section 15 are inapplicable to the construction or
application of the terms, provisions or conditions of this Agreement), shall
be submitted to final
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and binding arbitration in accordance with this Section 16. With respect to
(i) individuals who at any time provide or provided any services to the
Company in the United States, or are, were or become residents or citizens
of, the United States, or (ii) any controversy or claim relating to any
issue arising in the United States (the items described in (i) and (ii) are
collectively referred to as "US Claims"), the arbitration contemplated by
this Section 16 shall be compelled and enforced according to the Federal
Arbitration Act and shall be conducted according to the then-current
Commercial Arbitration Rules of the American Arbitration Association except
as otherwise provided herein. With respect to any other arbitration
contemplated by this Section 16 that is not dealt with in the preceding
sentence, such arbitration shall be compelled, enforced and conducted
according to such rules as the parties may agree at the time of commencement
of the arbitration and, in the absence of any such agreement, in accordance
with the Federal Arbitration Act and the then-current Commercial Arbitration
Rules of the American Arbitration Association except as otherwise provided
herein. The current Commercial Arbitration Rules, and other information
about the American Arbitration Association, can be accessed via the Internet
at WWW.ADR.ORG or can be obtained from the Company by a request directed to
its Vice-President, Human Resources. The arbitrator shall be appointed by
agreement of the parties hereto or, if no agreement can be reached, by the
American Arbitration Association pursuant to its rules. The arbitrator shall
apply the substantive law (and the law of remedies, if applicable) of the
state or other jurisdiction in which the claim arose, or federal law, or
both, as applicable to the claim(s) asserted. Without limiting the
arbitrator's power and authority, it is understood that (i) the arbitrator
shall have exclusive authority to resolve any dispute relating to the
interpretation, applicability or formation of this Agreement, including but
not limited to the provisions of this Section 16, and any claim that all or
any part of this Agreement is void or voidable and (ii) the arbitrator shall
have the authority to entertain motions to dismiss and motions for summary
judgment by any party and shall apply the standards governing such motions
under the Federal Rules of Civil Procedure (unless otherwise agreed to by
the parties in connection with disputes involving a non-US Claim).
(b) The aggrieved party must initiate arbitration by sending written
notice of an intention to arbitrate by registered or certified mail or by
courier to the other party. The notice to the Company or one of its
affiliates shall be sent to the Company's VP-Human Resources. The notice to
the Optionee shall be sent to the Optionee's last known address (as noted in
the records of the Company or an affiliate of the Company). This notice must
contain a description of the dispute and the remedy sought. The arbitrator
shall be impartial and experienced in commercial matters. Judgment on the
award the arbitrator renders may be entered in any court having jurisdiction
over the parties. The arbitration shall be conducted in the county or within
75 miles of the county (x) where the Optionee provides services to, or last
provided services to, the Company or one of its affiliates in a capacity
other than as an employee or, if no services are or were provided by the
Optionee in any such capacity, (y) where the issue arose. Each party may be
represented by an attorney or other representative selected by the party.
Each party shall have the right to take the deposition of one individual and
any expert witness proposed to be utilized by another party and to make
requests for production of documents; additional discovery may be had only
where the arbitrator selected pursuant to this Section 16 so orders, upon
showing of substantial need. Each party shall have the right to subpoena
witnesses and documents for the arbitration. At least 30 days before the
arbitration, each party must provide to the other lists of witnesses,
including any expert, and copies of all exhibits intended to be used at
arbitration.
(c) Each party to the arbitration shall equally share the fees and
costs of the arbitrator. Each party will deposit funds or post other
appropriate security for its share of the arbitrator's fees, in an amount
and manner determined by the arbitrator, 10 days before the first day of
hearing. Each party to the arbitration shall pay for its own costs and
attorneys' fees, if any, incurred in pursuing or defending the claim
submitted to arbitration. However, if any party prevails on a statutory
claim which affords the prevailing party attorneys' fees, or if there is a
written agreement providing for
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<PAGE>
attorney's fees, the arbitrator may award reasonable attorneys' fees to the
prevailing party. The arbitrator may also award costs, including the cost of
the arbitrator's fees, to the prevailing party.
(d) This agreement to arbitrate shall survive the expiration or
termination of this Agreement and termination of the Optionee's relationship
with the Company or any of its affiliates for any reason. This arbitration
procedure, which substitutes an arbitral forum for a judicial forum, is
intended to be the exclusive method of resolving any claim or controversy
that is not covered by the provisions of Section 15 above, including but not
limited any claim or controversy arising out of or in connection with the
Optionee's services for the Company or any of its affiliates in a capacity
other than as an employee, or the termination of those services, but this
arbitration procedure does not apply to any workers' compensation claim or
unemployment compensation claim, any claim for employee benefits where the
applicable benefit plan or pension plan specifies that its claim procedure
shall culminate in an arbitration procedure different from the one described
in Section 15 above, or to any claim or obligation included under or
referred to in Section 9(c) or 9(d) of this Agreement. If any part of this
agreement to arbitrate is found to be void as a matter of law or public
policy, the remainder of the agreement to arbitrate will continue to be in
full force and effect to the maximum extent permissible.
(e) No claim may be brought under this arbitration procedure on behalf
of any other person or entity. The Company and its affiliates (and any of
their respective benefit plans, benefit plan sponsors, fiduciaries,
administrators, successors or assigns) reserve the right to sever or
consolidate claims in each instance at its option in order to facilitate
case processing and to lower costs.
THE OPTIONEE ACKNOWLEDGES THAT THE OPTIONEE (1) HAS BEEN ADVISED TO CONSULT
WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT, (2) HAS READ THIS AGREEMENT
CAREFULLY AND UNDERSTANDS ALL OF ITS TERMS, INCLUDING BUT NOT LIMITED TO (X) THE
PROVISIONS RELATING TO CONFIDENTIALITY AND NON-SOLICITATION AND (Y) THE
PROVISIONS REQUIRING MANDATORY ARBITRATION OF CONTROVERSIES OR CLAIMS WHETHER OR
NOT RELATED TO THE OPTION GRANTED HEREUNDER, AND (3) UNDERSTANDS THAT THE
OPTIONEE IS GIVING UP VALUABLE RIGHTS, INCLUDING A RIGHT TO A JURY TRIAL.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
TMP WORLDWIDE INC.
By:
--------------------------------------
--------------------------------------
Optionee
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EXHIBIT 5.1
June 28, 1999
TMP Worldwide Inc.
1633 Broadway, 33rd Floor
New York, NY 10019
Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by TMP Worldwide Inc. (the "Company") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), relating to 15,000,000 shares of Common Stock of the Company, par
value $.001 per share (collectively, the "Shares"), which may be issued pursuant
to the TMP Worldwide Inc. 1999 Long Term Incentive Plan (the "Plan").
As counsel for the Company, we have examined such corporate records,
documents and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that, in our opinion, all necessary corporate
proceedings by the Company have been duly taken to authorize the issuance of the
Shares upon the exercise of options granted or to be granted pursuant to the
Plan, and that the Shares being registered pursuant to the Registration
Statement, when issued pursuant to the Plan, will be duly authorized, legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not to be construed as an admission that
we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Sincerely yours,
/s/ Fulbright & Jaworski L.L.P.
Fulbright & Jaworski L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
TMP Worldwide Inc.
New York, New York
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated March 26, 1999, relating to the
consolidated financial statements and schedule of TMP Worldwide Inc. appearing
in the Company's Annual Report on Form 10-K and our reports dated June 7, 1999,
relating to the supplemental consolidated financial statements and schedule of
TMP Worldwide Inc. appearing in the Company's Current Report on Form 8-K, dated
June 10, 1999.
/s/ BDO SEIDMAN, LLP
BDO SEIDMAN, LLP
New York, New York
June 28, 1999
<PAGE>
EXHIBIT 23.2
The Board of Directors
Morgan & Banks Limited
Level 11, Grosvenor Place
225 George Street
SYDNEY, NSW 2000
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
We hereby consent to the use of our reports:
a) dated 16 June 1998, except for Note 2 of Notes to and forming part of the
Consolidated Financial Statements for which the date is 21 September 1998,
relating to the consolidated balance sheets of Morgan & Banks Limited as at
31 March 1998 and 1997, and the consolidated profit statements and cash flow
statements for each of the years in the three year period ended 31 March
1998 appearing in the Company's Current Report on Form 8-K dated 12
February, 1999; and
b) dated 15 April 1999, relating to the consolidated balance sheets of Morgan &
Banks Limited as at 31 December 1998 and 31 March 1998, and the profit
statements for the years ended 31 December 1998, 31 March 1998 and 31 March
1997, and the cash flow statements for the nine month period ended 31
December 1998 and the years ended 31 March 1998 and 31 March 1997 appearing
in the Company's Current Report on Form 8-K dated 10 June 1999;
which reports are incorporated by reference in this Registration Statement on
Form S-8 of TMP Worldwide Inc.
Sydney, Australia
28 June 1999
Pannell Kerr Forster, P.C.
/s/ PANNELL KERR FORSTER
