<PAGE> 1
This document contains 15 pages. The exhibit index is located
on page 5. As filed with the Securities and Exchange
Commission on September 1, 1999.
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)
Delaware 04-3395167
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
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, MA 02110-2699
(Name, address and telephone (617) 439-2000
number of agent for service)
-------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------
Proposed
Title of each class of maximum offering Proposed maximum Amount of
securities to be registered Amount being registered price per share aggregate offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 Shares(1) $14.04(2) $7,017,969(2) $1,951.00(2)
$.01 par value per share
- ------------------------------------------------------------------------------------------------------------------------------
(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, as amended to date (the "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 as the weighted average of (i) 25,000 shares of Common Stock
issuable at a price of $13.875 per share (ii) 20,000 shares of Common
Stock issuable at a price of $14.50 per share, (iii) 86,596 shares of
Common Stock issuable at $16.00 per share and (iv) 368,404 shares of
Common Stock assumed to be issuable (pursuant to Rule 457(c) and (h)
under the Securities Act) at a price of $13.56 per share, which is the
average of the high and low prices per share of the Common Stock as
reported on the Nasdaq National Market on August 27, 1999.
==============================================================================================================================
</TABLE>
<PAGE> 2
-------------------------------
In accordance with General Instruction E to Form S-8, the contents of the
registrant's Registration Statement on Form S-8 (File No. 333-62109) relating to
the registrant's 1998 Non-Qualified Stock Option Plan (the "Prior Form S-8") are
incorporated by reference in this Registration Statement.
-------------------------------
In accordance with General Instruction E to Form S-8, the following
information is not contained in the Prior Form S-8:
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
See the exhibit index immediately preceding the exhibits attached hereto.
-2-
<PAGE> 3
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 31st day of August 1999.
PROVANT, INC.
By: /s/ 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>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Paul M. Verrochi Chairman of the Board and August 31, 1999
- ---------------------- Chief Executive Officer
Paul M. Verrochi
/s/ Dominic J. Puopolo Chief Financial Officer and August 31, 1999
- ---------------------- Director
Dominic J. Puopolo
/s/ John H. Zenger President and Director August 31, 1999
- ----------------------
John H. Zenger
/s/ Rajiv Bhatt Chief Accounting Officer August 31, 1999
- ----------------------
Rajiv Bhatt
</TABLE>
-3-
<PAGE> 4
Signatures Title Date
- ---------- ----- ----
/s/ Herbert A. Cohen Director August 31, 1999
- --------------------------
Herbert A. Cohen
/s/ Bert Decker Director August 31, 1999
- --------------------------
Bert Decker
/s/ Paul C. Green Director August 31, 1999
- --------------------------
Paul C. Green
- -------------------------- Director
Joe Hanson
/s/ John F. King Director August 31, 1999
- --------------------------
John F. King
/s/ A. Carl Von Sternberg Director August 31, 1999
- --------------------------
A. Carl Von Sternberg
/s/ Marc S. Wallace Director August 31, 1999
- --------------------------
Marc S. Wallace
/s/ Michael J. Davies Director August 31, 1999
- --------------------------
Michael J. Davies
/s/ David B. Hammond Director August 31, 1999
- --------------------------
David B. Hammond
/s/ John R. Murphy Director August 31, 1999
- --------------------------
John R. Murphy
/s/ Esther T. Smith Director August 31, 1999
- --------------------------
Esther T. Smith
-4-
<PAGE> 5
EXHIBIT INDEX
EXHIBIT NO. TITLE
4.1 1998 Non-Qualified Stock Option Plan, as amended to date
5 Opinion of Nutter, McClennen & Fish, LLP
23.1 Consent of Nutter, McClennen & Fish, LLP
(contained in Exhibit 5)
23.2 Consent of KPMG LLP
23.3 Consent of Friedman & Fuller, P.C.
23.4 Consent of Habif, Arogeti & Wynne, P.C.
24 Power of Attorney (contained in the signature
page to this Registration Statement)
-5-
<PAGE> 1
EXHIBIT 4.1
As amended through August 31, 1999
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. Except for awards covering no more
than 25,000 shares of Stock in the aggregate, 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).
<PAGE> 2
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
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 1,000,000 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
<PAGE> 3
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.
(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:
<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 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
<PAGE> 5
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.
<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 31, 1999
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
500,000 shares of the Company's common stock, $.01 par value per share (the
"Common Stock"), issuable pursuant to the Company's 1998 Non-Qualified Stock
Option Plan, as amended to date (the "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
<PAGE> 2
and of any amendments thereto. It is understood that this opinion 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
JED/MLB
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation by reference in this Registration Statement on Form
S-8 of PROVANT, Inc. of our report dated August 10, 1998 relating to the
consolidated balance sheets of PROVANT, Inc. and subsidiaries as of June 30,
1997 and June 30, 1998 and the related consolidated statements of operations,
stockholders' equity (deficit) and cash flows for the period from November 16,
1996 (date of inception) to June 30, 1997 and for the year ended June 30, 1998,
and the related consolidated financial schedule, which report appears in the
June 30, 1998 Annual Report on Form 10-K of PROVANT, Inc.
/s/ KPMG LLP
KPMG LLP
Boston, Massachusetts
August 30, 1999
<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 PROVANT, Inc. of our report on the financial statements
of Star Mountain, Inc. for the year ended December 31, 1995, dated February 16,
1996, which report appears in PROVANT, Inc.'s Annual Report on Form 10-K for the
fiscal year ended June 30, 1998.
/s/ Friedman & Fuller, P.C.
Friedman & Fuller, P.C.
Rockville, Maryland
August 27, 1999
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of PROVANT, Inc. of our reports dated March 19, 1999 and
April 16, 1999, appearing in the amended current report on Form 8-K/A of
PROVANT, Inc., as filed on July 6, 1999.
/s/ Habif, Arogeti & Wynne, P.C.
Habif, Arogeti & Wynne, P.C.
Atlanta, Georgia
August 27, 1999
