<PAGE> 1
As filed with the Securities and Exchange Commission on August 24, 1998.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROVANT, INC.
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 04-3395167
- -------------------------------------------------------------- ------------------------------------
(State or other jurisdiction of incorporation or organization) (I.R.S. employer identification no.)
</TABLE>
67 BATTERYMARCH STREET, SUITE 600, BOSTON, MA 02110
---------------------------------------------------
(Address of principal executive offices)
----------------
1998 NON-QUALIFIED STOCK OPTION PLAN
(Full title of plan)
--------------
PAUL M. VERROCHI Copies of communications to:
PROVANT, INC. JAMES E. DAWSON, ESQ.
67 BATTERYMARCH STREET, SUITE 600 NUTTER, MCCLENNEN & FISH, LLP
BOSTON, MA 02110 ONE INTERNATIONAL PLACE
(617) 261-1600 BOSTON, MASSACHUSETTS 02110-2699
(Name, address and telephone (617) 439-2000
number of agent for service)
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Proposed
Title of each class of securities to be Amount being registered maximum offering Proposed maximum Amount of
registered (1) price per share aggregate offering price registration fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 Shares $13.83(2) $6,915,000(2) $2,039.93(2)
$.01 par value per share
==================================================================================================================================
</TABLE>
(1) This Registration Statement covers 500,000 shares of Common Stock
underlying awards that may be granted pursuant to the 1998 Non-Qualified
Stock Option Plan. In addition, pursuant to Rule 416(b) under the
Securities Act of 1933, as amended (the "Securities Act"), this
Registration Statement also covers an indeterminate number of additional
shares of Common Stock which may be issued under said Plan as a result of
stock dividends, stock splits or other recapitalizations.
(2) Calculated based on the average of the high and low prices per share of
the Common Stock as reported on the Nasdaq National Market on August 21,
1998.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
PROVANT, Inc. (the "Company") hereby incorporates by reference in this
Registration Statement the following documents and information heretofore filed
with the Securities and Exchange Commission (the "Commission"):
(a) The Company's prospectus dated April 28, 1998, filed pursuant to
Rule 424(b) of the Securities Act;
(b) The Company's Quarterly Report on Form 10-Q for the three months
ended March 31, 1998; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 000-23989) and the
Company's Registration Statement on Form S-1 (File No. 333-46157).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of any post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing 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 of this Registration Statement to the
extent that any other subsequently-filed document which also is incorporated or
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 a 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 Company is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law, as amended, which provides that a
corporation may indemnify any person who was or is a party to or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an
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<PAGE> 3
action by or in the right of the corporation), by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite an adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper. The Company's Certificate of Incorporation
further provides that the Company shall indemnify its directors and officers to
the fullest extent permitted by the law of the State of Delaware.
The Company's Certificate of Incorporation provides that the Company's
directors shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except to the extent that
exculpation from liability is not permitted under the Delaware General
Corporation Law as in effect at the time such liability is determined.
The Certificate of Incorporation and the Company's By-laws also provide
that each person who was or is made party to, or is involved in, any action,
suit or proceeding by reason of the fact that he or she is or was a director or
officer of the Company (or is or was serving at the request of the Company as a
director or officer of any other enterprise, including service with respect to
employee benefit plans) shall be indemnified and held harmless by the Company,
to the fullest extent permitted by Delaware law, as in effect from time to time,
against all expenses (including attorneys' fees and expenses), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with the investigation, preparation to defend or defense of such
action, suit, proceeding or claim. The Company's By-laws allow for similar
rights of indemnification to be afforded, in the Company's discretion, to its
employees and agents.
The rights to indemnification and the payment of expenses provided by
the Certificate of Incorporation and By-laws do not apply to any action, suit,
proceeding or claim initiated by or on behalf of a person otherwise entitled to
the benefit of such provisions. Any person seeking indemnification under the
By-laws shall be deemed to have met the standard of conduct required for such
indemnification unless the contrary shall be established. Any repeal or
modification of such indemnification provisions shall not adversely affect any
right or protection of a director or officer with respect to any conduct of such
director or officer occurring prior to such repeal or modification.
-3-
<PAGE> 4
The Company maintains an indemnification insurance policy covering all
directors and officers of the Company and its subsidiaries.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the exhibit index immediately preceding the exhibits attached
hereto.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities 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 the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions of the Delaware General Corporation
Law and the registrant's Certificate of Incorporation and By-laws, or otherwise,
the registrant has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or a
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy, as expressed in the
Securities Act, and will be governed by the final adjudication of such issue.
-4-
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Boston, Massachusetts, on the 24th day of August 1998.
PROVANT, INC.
By: /s/ Paul M. Verrochi
-------------------------------
Paul M. Verrochi
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below on this Registration
Statement hereby constitutes and appoints Paul M. Verrochi, Dominic J. Puopolo,
Rajiv Bhatt and James E. Dawson, and each of them, with full power to act
without the other, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities (until revoked in writing), to
sign any and all amendments (including post-effective amendments and amendments
thereto) to this Registration Statement on Form S-8 of the registrant, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary fully to all
intents and purposes as he or she might or could do in person, thereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
behalf of the registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Paul M. Verrochi CHAIRMAN OF THE BOARD AND AUGUST 24, 1998
- ------------------------------------- CHIEF EXECUTIVE OFFICER
PAUL M. VERROCHI
/s/ Dominic J. Puopolo CHIEF FINANCIAL OFFICER AND AUGUST 24, 1998
- ------------------------------------- DIRECTOR
DOMINIC J. PUOPOLO
/s/ John H. Zenger PRESIDENT AND DIRECTOR AUGUST 24, 1998
- -------------------------------------
JOHN H. ZENGER
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Rajiv Bhatt CHIEF ACCOUNTING OFFICER AUGUST 24, 1998
- -------------------------------------
RAJIV BHATT
/s/ Herbert A. Cohen DIRECTOR AUGUST 24, 1998
- -------------------------------------
HERBERT A. COHEN
/s/ Bert Decker DIRECTOR AUGUST 24, 1998
- -------------------------------------
BERT DECKER
/s/ Paul C. Green DIRECTOR AUGUST 24, 1998
- -------------------------------------
PAUL C. GREEN
/s/ Joe Hanson DIRECTOR AUGUST 24, 1998
- -------------------------------------
JOE HANSON
/s/ John F. King DIRECTOR AUGUST 24, 1998
- -------------------------------------
JOHN F. KING
/s/ A. Carl von Sternberg DIRECTOR AUGUST 24, 1998
- -------------------------------------
A. CARL VON STERNBERG
/s/ Marc S. Wallace DIRECTOR AUGUST 24, 1998
- -------------------------------------
MARC S. WALLACE
/s/ Michael J. Davies DIRECTOR AUGUST 24, 1998
- -------------------------------------
MICHAEL J. DAVIES
/s/ David B. Hammond DIRECTOR AUGUST 24, 1998
- -------------------------------------
DAVID B. HAMMOND
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ John R. Murphy DIRECTOR AUGUST 24, 1998
- -------------------------------------
JOHN R. MURPHY
/s/ Esther T. Smith DIRECTOR AUGUST 24, 1998
- -------------------------------------
ESTHER T. SMITH
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
Exhibit No. Title Page
- ----------- ----- ----
4.1 1998 Non-Qualified Stock Option Plan 9
5 Opinion of Nutter, McClennen & Fish, LLP 14
23.1 Consent of Nutter, McClennen & Fish, LLP *
(contained in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP 16
23.3 Consent of Friedman & Fuller, P.C. 17
24 Power of Attorney (contained in the signature *
page to this Registration Statement)
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<PAGE> 1
EXHIBIT 4.1
-----------
PROVANT, INC.
1998 NON-QUALIFIED STOCK OPTION PLAN
1. PURPOSE
The purpose of this 1998 Non-Qualified Stock Option Plan (the "Plan")
is to advance the interests of PROVANT, Inc. (the "Company") by enhancing the
ability of the Company and its subsidiaries to attract and retain employees,
consultants or advisers who are in a position to make significant contributions
to the success of the Company, to reward them for their contributions and to
encourage them to take into account the long-term interests of the Company.
The Plan provides for the award of options to purchase shares of the
Company's common stock ("Stock"). Options granted pursuant to the Plan shall be
non-qualified options and not incentive stock options as defined in Section 422
of the Internal Revenue Code of 1986.
2. ELIGIBILITY FOR AWARDS
Persons eligible to receive awards under the Plan shall be all
employees, consultants and advisers of the Company and its subsidiaries who, in
the opinion of the Board, are in a position to make a significant contribution
to the success of the Company and its subsidiaries. Directors and officers of
the Company shall not be eligible to receive awards under the Plan. A subsidiary
for purposes of the Plan shall be a corporation in which the Company owns,
directly or indirectly, stock possessing 50% or more of the total combined
voting power of all classes of stock. Persons selected for awards under the Plan
are referred to herein as "participants".
3. ADMINISTRATION
The Plan shall be administered by the Board of Directors (the "Board")
of the Company. The Board shall have authority, not inconsistent with the
express provisions of the Plan, (a) to grant awards consisting of options to
such participants as the Board may select; (b) to determine the time or times
when awards shall be granted and the number of shares of Stock subject to each
award; (c) to determine the terms and conditions of each award; (d) to prescribe
the form or forms of any instruments evidencing awards and any other instruments
required under the Plan and to change such forms from time to time; (e) to
adopt, amend and rescind rules and regulations for the administration of the
Plan; and (f) to interpret the Plan and to decide any questions and settle all
controversies and disputes that may arise in connection with the Plan. All
exercises of the foregoing authority by the Board shall be conclusive and shall
bind all parties. Subject to Section 8, the Board shall also have the authority,
both generally and in particular instances, to waive compliance by a participant
with any obligation to be performed by the participant under an award, to waive
any condition or provision of an award, and to amend or cancel any award (and if
an award is canceled, to grant a new award on such terms as the Board shall
specify), except that the Board may not take any action with respect to an
outstanding award that would adversely affect the rights of the participant
under such award without such participant's consent. Nothing in the preceding
sentence shall be construed as limiting the power of the Board to make
adjustments required by Section 5(c) and Section 6(i).
The Board may, in its discretion, delegate some or all of its powers
with respect to the Plan to a committee (the "Committee"), in which event all
references in this Plan (as appropriate) to the Board shall be deemed to refer
to the Committee. A majority of the members of the Committee, if one is
<PAGE> 2
appointed, shall constitute a quorum. Any determination of the Committee under
the Plan may be made without notice or meeting of the Committee by a writing
signed by a majority of the Committee members.
4. EFFECTIVE DATE AND TERM OF PLAN
The Plan shall become effective on the date on which it is approved by
the Board.
No awards shall be granted under the Plan after the completion of ten
years from the date on which the Plan was adopted by the Board, but awards
previously granted may extend beyond that date.
5. SHARES SUBJECT TO THE PLAN
(a) NUMBER OF SHARES. Subject to adjustment as provided in Section
5(c), the aggregate number of shares of Stock that may be delivered upon the
exercise of awards granted under the Plan shall be 500,000 shares. If any award
granted under the Plan terminates without having been exercised in full, or upon
exercise is satisfied other than by delivery of Stock, the number of shares of
Stock as to which such award was not exercised shall be available for future
grants within the limits set forth in this Section 5(a).
(b) SHARES TO BE DELIVERED. Shares delivered under the Plan shall be
authorized but unissued Stock or, if the Board so decides in its sole
discretion, previously issued Stock acquired by the Company and held in its
treasury. No fractional shares of Stock shall be delivered under the Plan.
(c) CHANGES IN STOCK. In the event of a stock dividend, stock split or
combination of shares, recapitalization or other change in the Company's capital
stock, the number and kind of shares of Stock subject to awards then outstanding
or subsequently granted under the Plan, the exercise price of such awards, the
maximum number of shares of Stock that may be delivered under the Plan, and
other relevant provisions shall be appropriately adjusted by the Board, whose
determination shall be binding on all persons.
The Board may also adjust the number of shares subject to outstanding
awards and the exercise price and the terms of outstanding awards to take into
consideration material changes in accounting practices or principles,
extraordinary dividends, consolidations or mergers (except those described in
Section 6(i)), acquisitions or dispositions of stock or property or any other
event if it is determined by the Board that such adjustment is appropriate to
avoid distortion in the operation of the Plan.
6. TERMS AND CONDITIONS OF OPTIONS
(a) EXERCISE PRICE OF OPTIONS. The exercise price of each option shall
be determined by the Board but shall not be less, in the case of an original
issue of authorized stock, than par value.
(b) DURATION OF OPTIONS. Options shall be exercisable during such
period or periods as the Board may specify. The latest date on which an option
may be exercised (the "Final Exercise Date") shall be the date that is ten years
from the date the option was granted or such earlier date as the Board may
specify at the time the option is granted.
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<PAGE> 3
(c) EXERCISE OF OPTIONS.
(i) Options shall become exercisable at such time or times and
upon such conditions as the Board shall specify. In the
case of an option not immediately exercisable in full, the
Board may at any time accelerate the time at which all or
any part of the option may be exercised.
(ii) Options may be exercised only in writing. Written notice
of exercise must be signed by the proper person and
furnished to the Company, together with (A) such documents
as the Board requires and (B) payment in full as specified
below in Section 6(d) for the number of shares for which
the option is exercised.
(iii) The delivery of Stock upon the exercise of an option shall
be subject to compliance with (A) applicable federal and
state laws and regulations, (B) if the outstanding Stock
is at the time listed on any stock exchange, the listing
requirements of such exchange, and (C) Company counsel's
approval of all other legal matters in connection with the
issuance and delivery of such Stock. If the sale of Stock
has not been registered under the Securities Act of 1933,
as amended, the Company may require, as a condition to
exercise of the option, such representations or agreements
as counsel for the Company may consider appropriate to
avoid violation of such Act and may require that the
certificates evidencing such Stock bear an appropriate
legend restricting transfer.
(iv) The Board shall have the right to require that the
participant exercising the option remit to the Company an
amount sufficient to satisfy any federal, state, or local
withholding tax requirements (or make other arrangements
satisfactory to the Company with regard to such taxes)
prior to the delivery of any Stock pursuant to the
exercise of the option. If permitted by the Board, either
at the time of the grant of the option or the time of
exercise, the participant may elect, at such time and in
such manner as the Board may prescribe, to satisfy such
withholding obligation by (A) delivering to the Company
Stock (which in the case of Stock acquired from the
Company shall have been owned by the participant for at
least six months prior to the delivery date, unless the
Board otherwise determines) having a fair market value
equal to such withholding obligation, or (B) requesting
that the Company withhold from the shares of Stock to be
delivered upon the exercise a number of shares of Stock
having a fair market value equal to such withholding
obligation.
(v) If an option is exercised by the executor or administrator
of a deceased participant, or by the person or persons to
whom the option has been transferred by the participant's
will or the applicable laws of descent and distribution,
the Company shall be under no obligation to deliver Stock
pursuant to such exercise until the Company is satisfied
as to the authority of the person or persons exercising
the option.
(d) PAYMENT FOR AND DELIVERY OF STOCK. Stock purchased upon exercise
of an option under the Plan shall be paid for as follows:
3
<PAGE> 4
(i) in cash or by personal check, certified check, bank draft
or money order payable to the order of the Company; or
(ii) if so permitted by the Board, (A) through the delivery of
shares of Stock (which, in the case of Stock acquired from
the Company, shall have been held for at least six months
prior to delivery) having a fair market value on the last
business day preceding the date of exercise equal to the
purchase price or (B) by delivery of a promissory note of
the participant to the Company, such note to be payable on
such terms as are specified by the Board or (C) by
delivery of an unconditional and irrevocable undertaking
by a broker to deliver promptly to the Company sufficient
funds to pay the exercise price or (D) by any combination
of the permissible forms of payment.
(e) RIGHTS AS SHAREHOLDER. A participant shall not have the rights of a
shareholder with regard to awards under the Plan except as to Stock actually
received by the participant under the Plan.
(f) NONTRANSFERABILITY OF AWARDS; RESTRICTIONS ON STOCK. Except as the
Board may otherwise determine, no award may be transferred other than by will or
by the laws of descent and distribution, and during a participant's lifetime an
award may be exercised only by the participant.
The Board, in its discretion, may at the time an award is granted make
Stock delivered under the award subject to such restrictions and conditions,
including restrictions on resale and buy-back rights, as it deems appropriate.
(g) DEATH. Except as otherwise provided in the award by the Board at
the time of grant, if a participant dies, each option held by the participant
that was not then exercisable shall terminate and each option that was
exercisable immediately prior to death may be exercised by the participant's
executor or administrator or by the person or persons to whom the option is
transferred by will or the applicable laws of descent and distribution, at any
time within the one-year period (or such longer or shorter period as the Board
may determine) beginning with the date of the participant's death but in no
event beyond the Final Exercise Date.
(h) TERMINATION OF SERVICE OTHER THAN BY DEATH. Except as otherwise
provided in the award by the Board at the time of grant, if an employee's
employment with the Company and its subsidiaries terminates for any reason other
than by death, all options held by the employee that are not then exercisable
shall terminate and options that are exercisable on the date employment
terminates shall continue to be exercisable for 90 days, or such shorter or
longer period as the Board may determine, but in no event beyond the Final
Exercise Date.
In the case of a participant who is not an employee, provisions
relating to the exercisability of options following termination of service shall
be specified in the award. If not so specified, all options held by such
participant that are not then exercisable shall terminate upon termination of
service. Options that are exercisable on the date the participant's service as a
consultant or adviser terminates shall continue to be exercisable for 90 days,
or such shorter or longer period as the Board may determine, but in no event
beyond the Final Exercise Date.
(i) MERGER, CONSOLIDATION, ASSET SALE, LIQUIDATION, ETC.
Notwithstanding any other provisions of the Plan, in the event that a
transaction occurs that results in the Stock not being
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<PAGE> 5
registered under Section 12 of the Securities Exchange Act of 1934, as amended,
all options shall terminate upon the completion of the transaction. If the
transaction is intended to be treated as a pooling of interests for accounting
purposes, the Board shall cause the acquiring or surviving corporation or one of
its affiliates to grant replacement options to participants. In all other
transactions, the Board may either arrange for replacement options, accelerate
the exercisability of all outstanding options (subject to completion of the
transaction) or terminate all options in exchange for a cash payment.
The Company may grant options under the Plan in substitution for
options held by employees of another corporation who become employees of the
Company, or a subsidiary of the Company, as the result of a merger or
consolidation of the employing corporation with the Company or a subsidiary of
the Company, or as a result of the acquisition by the Company, or one of its
subsidiaries, of property or stock of the employing corporation. The Company may
direct that substitute options be granted on such terms and conditions as the
Board considers appropriate in the circumstances.
7. EMPLOYMENT RIGHTS
Neither the adoption of the Plan nor the grant of awards shall confer
upon any participant any right to continue as an employee of, or consultant or
adviser to, the Company or any subsidiary of the Company or affect in any way
the right of the Company or any such subsidiary to terminate his or her
employment by the Company or any subsidiary of the Company at any time. Except
as specifically provided by the Board in any particular case, the loss of
existing or potential profit in awards granted under this Plan shall not
constitute an element of damages in the event of termination of the relationship
of a participant even if the termination is in violation of an obligation of the
Company or any subsidiary of the Company to the participant by contract or
otherwise.
8. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
Neither adoption of the Plan nor the grant of awards to a participant
shall affect the Company's right to make awards to such participant that are not
subject to the Plan, to issue to such participant Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock may be issued.
The Board may at any time discontinue granting awards under the Plan.
With the consent of the participant (except as otherwise provided in the Plan),
the Board may at any time cancel an existing award in whole or in part and grant
another award for such number of shares as the Board specifies. The Board may at
any time or times amend the Plan or any outstanding award for the purpose of
satisfying changes in applicable laws or regulations or for any other purpose
that may at the time be permitted by law, or may at any time terminate the Plan
as to further grants of awards, but no such amendment shall adversely affect the
rights of any participant (without the participant's consent) under any award
previously granted.
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<PAGE> 1
EXHIBIT 5
---------
NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748
CAPE COD OFFICE DIRECT DIAL NUMBER
HYANNIS, MASSACHUSETTS
August 24, 1998
PROVANT, Inc.
67 Batterymarch Street, Suite 600
Boston, MA 02110
Gentlemen/Ladies:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement") which PROVANT, Inc. (the "Company") is filing
concurrently herewith with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to an
aggregate of 500,000 shares of common stock, $.01 par value per share (the
"Common Stock"), issuable pursuant to the Company's 1998 Non-Qualified Stock
Option Plan, and an indeterminate number of shares of such Common Stock which
may be issued or become issuable under the Plan by reason of stock dividends,
stock splits or other recapitalizations executed hereafter.
We have acted as legal counsel for the Company in connection
with adoption of the Plan, are familiar with the Company's Certificate of
Incorporation and By-laws, both as amended to date, and have examined such other
documents as we deemed necessary for this opinion. Based upon the foregoing, we
are of the opinion that:
1. When paid for and issued in compliance with the terms of the
Plan, and in compliance with the applicable provisions of law and of the
Company's Certificate of Incorporation and By-laws, both as amended through the
dates of any such issuances, the 500,000 shares of Common Stock referred to
above will be duly and validly issued, fully paid and non-assessable; and
2. The indeterminate number of additional shares of Common Stock
which may become issuable under the Plan by reason of stock dividends, stock
splits or other recapitalizations hereafter executed, if and when issued in
accordance with the terms of the Plan and in compliance with the applicable
provisions of law and of the Company's Certificate of Incorporation and By-laws,
both as amended through the dates of any such issuances, will be duly and
validly issued, fully paid and non-assessable.
We understand that this opinion letter is to be used in connection with
the Registration Statement and hereby consent to the filing of this opinion
letter with and as a part of the Registration Statement and of any amendments
thereto. It is understood that this opinion
<PAGE> 2
letter is to be used in connection with the offer and sale of the aforesaid
shares only while the Registration Statement, as it may be amended from time to
time as contemplated by Section 10(a)(3) of the Securities Act, is effective
under the Securities Act.
Very truly yours,
/s/ Nutter, McClennen & Fish, LLP
Nutter, McClennen & Fish, LLP
CA/DSS
<PAGE> 1
EXHIBIT 23.2
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use of our reports incorporated by reference in this
Registration Statement on Form S-8 relating to PROVANT, Inc. dated August 24,
1998, for Provant, Inc. dated January 9, 1998, Behavioral Technology, Inc. dated
January 9, 1998, Decker Communications, Inc. dated January 9, 1998, J. Howard &
Associates, Inc. dated April 3, 1998, Robert Steinmetz, Ph.D., and Associates,
Inc., d/b/a Learning Systems Sciences, dated April 3, 1998, MOHR Retail Learning
Systems, Inc. dated January 9, 1998, Novations Group, Inc. dated January 9,
1998, and Star Mountain, Inc. dated April 3, 1998 included in the
previously-filed Registration Statement on Form S-1 (No. 333-46157).
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
August 24, 1998
<PAGE> 1
EXHIBIT 23.3
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report on the 1995 financial statements for Star
Mountain, Inc., dated February 16, 1996, included in the previously-filed
Registration Statement on Form S-1 (No. 333-46157).
Friedman & Fuller, P.C.
/s/ Friedman & Fuller, P.C.
Rockville, Maryland
August 21, 1998
