<PAGE> 1
As filed with the Securities and Exchange Commission on May 19, 2000.
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROVANT, INC.
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(Exact name of issuer as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation or organization)
04-3395167
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(I.R.S. employer identification no.)
67 BATTERYMARCH STREET, SUITE 400, BOSTON, MA 02110
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(Address of principal executive offices)
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1998 EQUITY INCENTIVE PLAN
1998 NON-QUALIFIED STOCK OPTION PLAN
(Full title of plan)
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CURTIS M. UEHLEIN Copies of communications to:
PROVANT, INC. JAMES E. DAWSON, ESQ.
67 BATTERYMARCH STREET, SUITE 400 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)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
maximum
Title of each class of securities to be offering price Proposed maximum Amount of
registered Amount being registered per share aggregate offering price registration fee
- --------------------------------------- ----------------------- -------------- ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, 1,250,000 Shares(1) $6.55(2) $8,190,065.35(2) $2,162.18(2)
$.01 par value per share 1,000,000 Shares(1) 5.85(3) 5,852,167.98(3) 1,544.97(3)
--------
$3,707.15
</TABLE>
(1) This Registration Statement covers 1,250,000 shares of Common Stock
underlying awards that may be granted pursuant to the 1998 Equity
Incentive Plan, as amended to date, and 1,000,000 shares of Common
Stock underlying awards that may be granted pursuant to the 1998
Non-Qualified Plan, as amended to date. 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
Plans as a result of stock dividends, stock splits or other
recapitalizations.
(2) Calculated based on the weighted average of (i) 50,000 shares of Common
Stock issuable at a price of $8.00 per share, (ii) 10,000 shares of
Common Stock issuable at a price of $6.906 per share, (iii) 10,000
shares of Common Stock issuable at a price of $6.188 per share, (iv)
132,679 shares of Common Stock issuable at a price of $18.875 per share
and (v) 1,047,321 shares of Common Stock assumed to be issuable
(pursuant to Rule 457(c) and (h) under the Securities Act) at a price
of $4.9219 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 May 12, 2000.
(3) Calculated based on the weighted average of (i) 299,000 shares of
Common Stock issuable at a price of $6.875 per share, (ii) 10,000
shares of Common Stock issuable at a price of $6.906 per share, (iii)
25,500 shares of Common Stock issuable at a price of $6.118 per share,
(iv) 500 shares of Common Stock issuable at a price of $13.00 per
share, (v) 3,750 shares of Common Stock issuable at a price of $23.656
per share, (vi) 10,904 shares of Common Stock issuable at a price of
$25.250 per share and (vii) 650,346 shares of Common Stock assumed to
be issuable (pursuant to Rule 457(c) and (h) under the Securities Act)
at a price of $4.9219 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 May 12, 2000.
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<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.
333-53473) relating to the registrant's 1998
Equity Incentive Plan and the contents of the registrant's
Registration Statement on Form S-8 (File Nos. 333-62109 and
333-86379) relating to the registrant's 1998 Non-Qualified Stock
Option Plan (together, the "Prior Registration
Statements on 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 Registration Statements on Form S-8:
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
See the exhibit index immediately preceding the exhibits attached
hereto.
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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 19th day of May 2000.
PROVANT, INC.
By: /s/ Curtis M. Uehlein
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Curtis M. Uehlein
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below on this Registration
Statement hereby constitutes and appoints 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
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<S> <C> <C>
/s/ Curtis M. Uehlin PRESIDENT, MAY 19, 2000
- ----------------------------------------------------------- CHIEF EXECUTIVE OFFICER AND DIRECTOR
CURTIS M. UEHLEIN
/s/ Paul M. Verrochi DIRECTOR MAY 19, 2000
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PAUL M. VERROCHI
/s/ John H. Zenger VICE CHAIRMAN AND DIRECTOR MAY 19, 2000
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JOHN H. ZENGER
/s/ Dominic J. Puopolo VICE CHAIRMAN AND DIRECTOR MAY 19, 2000
- -----------------------------------------------------------
DOMINIC J. PUOPOLO
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
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<S> <C> <C>
/s/ Rajiv Bhatt EXECUTIVE VICE PRESIDENT, TREASURER, MAY 19, 2000
- ----------------------------------------------------------- CHIEF FINANCIAL OFFICER AND
RAJIV BHATT CHIEF ACCOUNTING OFFICER
/s/ Herbert A. Cohen DIRECTOR May 19, 2000
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HERBERT A. COHEN
/s/ Michael J. Davies DIRECTOR May 19, 2000
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MICHAEL J. DAVIES
/s/ Bert Decker DIRECTOR May 19, 2000
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BERT DECKER
/s/ Paul C. Green DIRECTOR May 19, 2000
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PAUL C. GREEN, PH.D.
DIRECTOR
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DAVID B. HAMMOND
/s/ John R. Murphy DIRECTOR MAY 19, 2000
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JOHN R. MURPHY
/s/ Esther T. Smith DIRECTOR MAY 19, 2000
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ESTHER T. SMITH
/s/ A. Carl von Sternberg DIRECTOR MAY 19, 2000
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A. CARL VON STERNBERG
/s/ Marc S. Wallace DIRECTOR MAY 19, 2000
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MARC S. WALLACE
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Title
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<S> <C>
4.1 1998 Equity Incentive Plan, as amended to date
4.2 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.
24 Power of Attorney
(contained in the signature page to this Registration Statement)
</TABLE>
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<PAGE> 1
EXHIBIT 4.1
PROVANT, INC.
1998 EQUITY INCENTIVE PLAN
as amended and restated on November 3, 1999
SECTION 1 PURPOSE AND DURATION
1.1 Purposes. The purposes of the Plan are to attract, retain and
motivate employees and consultants of the Company, its Parent (if any), and any
present or future Subsidiaries and to enable them to participate in the growth
of the Company by providing for or increasing the proprietary interests of such
persons in the Company.
1.2 Effective Date. The Plan is effective as of the date of its
adoption by the Board.
1.3 Expiration Date. The Plan shall expire one day less than ten years
from the date of the adoption of the Plan by the Board. In no event shall any
Awards be made under the Plan after such expiration date, but Awards previously
granted may extend beyond such date.
SECTION 2 DEFINITIONS
As used in the Plan, the following capitalized words shall have the
meanings indicated below:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Award" means, individually or collectively, a grant under the Plan of
Options, SARs, Performance Shares, Restricted Stock or Stock Units.
"Award Agreement" means the written agreement setting forth the terms
and provisions applicable to an Award granted under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee of the Board appointed by the Board to
administer the Plan in accordance with Section 3.1.
"Company" means PROVANT, Inc., a Delaware corporation, or any successor
thereto.
"Director" means any individual who is a member of the Board.
<PAGE> 2
"Fair Market Value" means, with respect to a Share, the fair market
value thereof as of the relevant date of determination, as determined in
accordance with a valuation methodology approved by the Board in good faith but
in no event less than, in the case of newly issued stock, the par value per
Share.
"Grant Date" means the effective date of an Award as specified by the
Board and set forth in the applicable Award Agreement.
"Incentive Stock Option" or "ISO" means an option to purchase Shares
awarded to a Participant under Section 6 of the Plan that is intended to meet
the requirements of Section 422 of the Code.
"Non-Employee Director" means a "non-employee director" as that term is
defined in Rule 16b-3 promulgated under the 1934 Act.
"Nonqualified Stock Option" or "NQO" means an option to purchase Shares
awarded to a Participant under Section 6 of the Plan that is not intended to be
an ISO.
"Option" means an ISO or an NQO.
"Parent" means a "parent corporation" as that term is defined in
Section 424 of the Code.
"Participant" means an individual who has been selected by the Board to
receive an Award under the Plan.
"Performance Cycle" means the period of time selected by the Board
during which performance is measured for the purpose of determining the extent
to which an Award of Performance Shares has been earned. More than one
Performance Cycle may be in progress at any one time and the duration of
Performance Cycles may differ.
"Performance Share" means a Share awarded to a Participant under
Section 8 of the Plan that entitles the Participant to acquire Shares upon the
attainment of specified performance goals.
"Plan" means the 1998 Equity Incentive Plan set forth in this document
and as hereafter amended from time to time in accordance with Section 13.
"Restricted Period" means the period of time selected by the Board
during which Shares of Restricted Stock are subject to forfeiture and/or
restrictions on transferability.
"Restricted Stock" means Shares awarded to a Participant under Section
9 of the Plan pursuant to an Award that entitles the Participant to acquire
Shares for a purchase price (which may be zero), subject to such conditions,
including a Company right during a specified period or periods to repurchase the
Shares at their original purchase price (or to require forfeiture of the Shares
if the purchase price was zero) upon the termination of the Participant's
employment.
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"SAR" or "Stock Appreciation Right" means an Award that is designated
as an SAR pursuant to Section 7 of the Plan, granted alone or in connection with
a related Award, entitling a Participant to receive an amount in cash or Shares
or a combination thereof having a value equal to (or if the Board shall so
determine at time of grant, less than) the excess of the Fair Market Value of a
Share on the date of exercise over the Fair Market Value of a Share on the Grant
Date (or over the Option exercise price, if the Stock Appreciation Right was
granted in tandem with an Option) multiplied by the number of Shares with
respect to which the Stock Appreciation Right is exercised.
"Shares" means shares of the Company's common stock, par value $0.01
per share.
"Stock Unit" means an Award of a Share or a unit valued in whole or in
part by reference to, or otherwise based on, the value of a Share, granted to a
Participant under Section 10 of the Plan.
"Subsidiary" means a "subsidiary corporation" as that term is defined
in Section 424 of the Code.
SECTION 3 ADMINISTRATION OF THE PLAN
3.1 The Board. The Plan shall be administered by the Board. The Board
may, in its discretion, delegate some or all of its powers with respect to the
Plan to the Committee, in which event all references in the Plan to the Board
(except references in Section 13.1) shall be deemed to refer to the Committee.
The Committee, if one is appointed, shall consist of at least two Non-Employee
Directors.
3.2 Authority of the Board. The Board shall have the authority to
adopt, alter and repeal such administrative rules, guidelines and practices
governing the operation of the Plan as it shall consider advisable from time to
time, to interpret the provisions of the Plan and any Award, and to decide all
disputes arising in connection with the Plan. The Board's decisions and
interpretations shall be final and binding.
SECTION 4 ELIGIBILITY OF PARTICIPANTS
The persons eligible to receive Awards under the Plan shall be all
executive officers of the Company, its Parent (if any), and any Subsidiaries and
other employees, consultants and advisers who, in the opinion of the Board, are
in a position to make a significant contribution to the success of the Company,
its Parent (if any), and any Subsidiaries. Directors, including directors who
are not employees of the Company, its Parent (if any) or any Subsidiaries, shall
be eligible to receive Awards under the Plan.
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SECTION 5 STOCK AVAILABLE FOR AWARDS
5.1 Number of Shares. Awards may be made under the Plan for up to Two
Million Three Hundred Fifty Thousand (2,350,000) Shares. Shares issued under the
Plan may consist in whole or in part of authorized but unissued Shares or
treasury Shares.
5.2 Lapsed, Forfeited or Expired Awards. If any Award in respect of
Shares expires or is terminated before exercise or is forfeited for any reason,
the Shares subject to such Award, to the extent of such expiration, termination,
or forfeiture, shall again be available for award under the Plan.
5.3 Maximum Number of Shares to a Single Participant in any Calendar
Year. In no event shall any Participant receive in any calendar year Awards
under the Plan for more than Five Hundred Thousand (500,000) Shares.
SECTION 6 STOCK OPTIONS
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
the Board may award Options and determine the number of Shares to be covered by
each Option, the exercise price therefor, the term of the Option, and any other
conditions and limitations applicable to the exercise of the Option. The Board
may grant ISOs, NQOs or a combination thereof.
6.2 Exercise Price. Subject to the provisions of this Section 6, the
exercise price for each Option shall be determined by the Board in its sole
discretion; provided, however, that (i) unless such Option is granted in lieu of
compensation, the exercise price shall not be less than eighty-five percent
(85%) of the Fair Market Value on the Grant Date of the Shares subject to the
Option and (ii) the exercise price shall not be less than the par value of the
Shares subject to the Option.
6.3 Expiration. No Option shall be exercised later than ten (10) years
from the Grant Date.
6.4 Restrictions on Option Transferability and Exercisability. No
Option shall be transferable by the Participant other than by will or the laws
of descent and distribution, and all Options shall be exercisable during the
Participant's lifetime only by the Participant; provided, however, that the
Board may provide that an Option is transferable by the Participant and
exercisable by persons other than the Participant upon such terms and conditions
as the Board shall determine.
6.5 Certain Additional Provisions for Incentive Stock Options
6.5.1 Exercise Price. In the case of an ISO, the exercise price shall
be not less than one hundred percent (100%) of the Fair Market Value on the
Grant Date of the Shares subject to the Option; provided, however, that if on
the Grant Date the Participant (together with persons whose stock ownership is
attributed to the Participant pursuant to Section 424(d) of the Code) owns stock
possessing more than ten percent (10%) of the total combined voting power
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of all classes of stock of the Company, its Parent (if any) or any Subsidiaries,
the exercise price shall be not less than one hundred and ten percent (110%) of
the Fair Market Value on the Grant Date of the Shares subject to the Option.
6.5.2 Exercisability. Subject to Sections 12.3 and 12.4, the aggregate
Fair Market Value (determined on the Grant Date(s)) of the Shares with respect
to which ISOs are exercisable for the first time by any Participant during any
calendar year (under all plans of the Company, its Parent (if any) and any
Subsidiaries) shall not exceed $100,000.
6.5.3 Eligibility. ISOs may be granted only to persons who are
employees of the Company, its Parent (if any) or any Subsidiaries on the Grant
Date.
6.5.4 Expiration. No ISO may be exercised later than ten (10) years from
the Grant Date; provided, however, that if the Option is granted to a
Participant who, together with persons whose stock ownership is attributed to
the Participant pursuant to Section 424(d) of the Code, owns stock possessing
more than ten percent (10%) of the total combined voting power of all classes of
stock of the Company, its Parent (if any) or any Subsidiaries, the ISO may not
be exercised later than five (5) years from the Grant Date.
6.5.5 Compliance with Section 422 of the Code. The terms and conditions
of ISOs shall be subject to and comply with Section 422 of the Code or any
successor provision.
6.5.6 Notice to Company of Disqualifying Disposition. Each Participant
who receives an ISO agrees to notify the Company in writing immediately after
the Participant makes a Disqualifying Disposition of any Shares received
pursuant to the exercise of an ISO. The term "Disqualifying Disposition" means
any disposition (including any sale) of Shares before the later of (a) two years
after the Participant was granted the ISO under which the Participant acquired
such Shares, or (b) one year after the Participant acquired the Shares by
exercising the ISO.
6.5.7 Substitute Options. Notwithstanding the provisions of Section 6.5.1,
in the event that the Company, its Parent (if any) or any Subsidiary consummates
a transaction described in Section 424(a) of the Code (relating to the
acquisition of property or stock from an unrelated corporation), individuals who
become employees or consultants of the Company, its Parent (if any) or any
Subsidiary on account of such transaction may be granted ISOs in substitution
for options granted by their former employer. The Board, in its sole discretion
and consistent with Section 424(a) of the Code, shall determine the exercise
price of such substitute Options.
6.6 NQO Presumption. Options granted pursuant to the Plan shall be
presumed to be NQOs unless expressly designated ISOs in the Award Agreement.
SECTION 7 GRANT OF STOCK APPRECIATION RIGHTS
Subject to the terms and provisions of the Plan, the Board may award
SARs in tandem with another Award (at or after the Grant Date of the other
Award), or alone and unrelated to
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another Award, and may determine the terms and conditions applicable thereto,
including the form of payment.
SECTION 8 PERFORMANCE SHARES
8.1 Grant of Performance Shares. The Board may award Performance Shares
to Participants and determine the performance goals applicable to each such
Award, the number of Shares for each Performance Cycle, the duration of each
Performance Cycle and all other limitations and conditions applicable to the
awarded Performance Shares. The payment value of each Performance Share shall be
equal to the Fair Market Value of one Share on the date the Performance Share is
earned or, in the discretion of the Board, on the date the Board determines that
the Performance Share has been earned.
8.2 Adjustment of Performance Goals. Except as provided in an Award,
during any Performance Cycle, the Board may adjust the performance goals for the
Performance Cycle as it deems equitable in recognition of unusual or
non-recurring events affecting the Company or its Shares, changes in applicable
tax laws or accounting principles, or such other factors as the Board shall
determine.
8.3 Written Certification. As soon as practical after the end of a
Performance Cycle, the Board shall certify in writing the extent to which the
performance goals applicable to each Participant for the Performance Cycle were
achieved or exceeded and the number of Performance Shares which have been earned
on the basis of performance in relation to the established performance goals.
SECTION 9 RESTRICTED STOCK
9.1 Grant of Restricted Stock. The Board may award Shares of Restricted
Stock and determine the purchase price, if any, therefor, the duration of the
Restricted Period, the conditions under which the Shares may be forfeited to or
repurchased by the Company and any other terms and conditions of the Awards. The
Board may modify or waive any restrictions, terms and conditions with respect to
any Restricted Stock. Shares of Restricted Stock may be issued for whatever
consideration is determined by the Board, subject to applicable law.
9.2 Transferability. Shares of Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise encumbered, except as permitted by
the Board, during the Restricted Period.
9.3 Evidence of Award. Shares of Restricted Stock shall be evidenced in
such manner as the Board may determine. Any certificates issued in respect of
Shares of Restricted Stock shall be registered in the name of the Participant
and unless otherwise determined by the Board, deposited by the Participant,
together with a stock power endorsed in blank, with the Company. At the
expiration of the Restricted Period, the Company shall deliver the certificates
and stock power to the Participant.
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9.4 Shareholder Rights. A Participant shall have all the rights of a
shareholder with respect to Restricted Stock awarded, including voting and
dividend rights, unless otherwise provided in the Award Agreement.
SECTION 10 STOCK UNITS
10.1 Grant of Stock Units. Subject to the terms and provisions of the
Plan, the Board may award Stock Units subject to such terms, restrictions,
conditions, performance criteria, vesting requirements and payment rules as the
Board shall determine.
10.2 Consideration. Shares awarded in connection with a Stock Unit
shall be issued for whatever consideration is determined by the Board, subject
to applicable law.
SECTION 11 OTHER AWARDS
The Board shall have the authority to specify the terms and provisions
of other forms of equity-based or equity-related Awards not described above
which the Board determines to be consistent with the purposes of the Plan and
the interests of the Company, which Awards may provide for cash payments based
in whole or in part on the value or future value of Shares, for the acquisition
or future acquisition of Shares, or any combination thereof. Other Awards may
also include cash payments (including the cash payment of dividend equivalents)
under the Plan which may be based on one or more criteria determined by the
Board that are unrelated to the value of the Shares and that may be granted in
tandem with, or independent of, other Awards under the Plan.
SECTION 12 GENERAL PROVISIONS APPLICABLE TO AWARDS
12.1 Legal and Regulatory Matters. The delivery of Shares shall be
subject to compliance with (i) applicable federal and state laws and
regulations, (ii) if the outstanding Shares are listed at the time on any stock
exchange or automated quotation system, the listing requirements of such
exchange or system, and (iii) the Company's counsel's approval of all other
legal matters in connection with the issuance and delivery of the Shares. If the
sale of the Shares has not been registered under the 1933 Act, the Company may
require, as a condition to delivery of the Shares, such representations or
agreements as counsel for the Company may consider appropriate to avoid
violation of the 1933 Act and may require that the certificates evidencing the
Shares bear an appropriate legend restricting transfer.
12.2 Award Agreement. The terms and provisions of an Award shall be set
forth in an Award Agreement approved by the Board and delivered or made
available to the Participant as soon as practicable following the Grant Date.
12.3 Determination of Restrictions on the Award. The vesting,
exercisability, payment and other restrictions applicable to an Award (which may
include, without limitation, restrictions on transferability or provision for
mandatory resale to the Company) shall be determined by the Board and set forth
in the applicable Award Agreement. Notwithstanding
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<PAGE> 8
the foregoing, the Board may accelerate (i) the vesting or payment of any Award
(including an ISO), (ii) the lapse of restrictions on any Award (including an
Award of Restricted Stock) and (iii) the date on which any Option or SAR first
becomes exercisable.
12.4 Mergers, etc. Notwithstanding any other provisions of the Plan, in
the event that a transaction occurs that results or will result in the Common
Stock not being registered under Section 12 of the Exchange Act, all Awards
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 Awards to Participants. In all other
transactions, the Board may either arrange for replacement Awards, accelerate
the exercisability of all outstanding Awards (subject to completion of the
transaction) or terminate all Awards in exchange for a cash payment. Replacement
Awards for ISOs shall satisfy any applicable requirements of the Code.
12.5 Termination of Employment. For purposes of the Plan, the following
events shall not be deemed a termination of employment of a Participant: (i) a
transfer to the employment of the Company from its Parent (if any) or from a
Subsidiary, or from the Company to its Parent (if any) or to a Subsidiary, or
from one Subsidiary to another, or from the Company's Parent (if any) to a
Subsidiary, or from a Subsidiary to the Company's Parent (if any); or (ii) an
approved leave of absence for military service or sickness, or for any other
purpose approved by the Company, if the Participant's right to employment is
guaranteed either by a statute or by contract or under the policy pursuant to
which the leave of absence was granted or if the Board otherwise so provides in
writing. For purposes of the Plan, employees of a Subsidiary or Parent (if any)
shall be deemed to have terminated their employment on the date on which such
Subsidiary or Parent ceases to be a Subsidiary or Parent of the Company, as the
case may be.
12.6 Date of and Effect of Termination of Employment. The date of a
Participant's termination of employment for any reason shall be determined in
the sole discretion of the Board. The Board shall have full authority to
determine and specify in the applicable Award Agreement the effect, if any, that
a Participant's termination of employment for any reason will have on the
vesting, exercisability, payment or lapse of restrictions applicable to an
outstanding Award.
12.7 Grant of Awards. Each Award may be made alone, in addition to or
in relation to any other Award. The terms of each Award need not be identical,
and the Board need not treat Participants uniformly.
12.8 Settlement of Awards. No Shares shall be delivered pursuant to any
exercise of an Award until payment in full of the price therefor, if any, is
received by the Company. Such payment may be made in whole or in part in cash or
by certified or bank check or, to the extent permitted by the Board at or after
the Grant Date, by delivery of a note or Shares, including Restricted Stock,
valued at their Fair Market Value on the date of delivery, or by having the
Company hold back from the Shares to be delivered upon exercise Shares having a
Fair Market Value on the last business day preceding the date of exercise equal
to the purchase price, or 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 by any combination of
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<PAGE> 9
the permissible forms of payment, or by such other lawful consideration as the
Board shall determine.
12.9 Withholding Requirements and Arrangements. The Participant shall
pay to the Company or make provision satisfactory to the Board for payment of
any taxes required by law to be withheld in respect of Awards under the Plan no
later than the date of the event creating the tax liability. In the Board's
discretion, such tax obligations may be paid in whole or in part in Shares,
including Shares obtained in connection with the Award creating the tax
obligation, valued at their Fair Market Value on the date of delivery. The
Company may, to the extent permitted by law, deduct any such tax obligations
from any payment of any kind otherwise due to the Participant.
12.10 No Effect on Employment. The Plan shall not give rise to any right
on the part of any Participant to continue in the employ of the Company, its
Parent (if any) or any Subsidiary. The loss of existing or potential profit in
Awards granted under the 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 to the Participant
by contract or otherwise.
12.11 No Rights as Shareholder. Subject to the provisions of the Plan and
the applicable Award Agreement, no Participant shall have any rights as a
shareholder with respect to any Shares to be distributed under the Plan until he
or she becomes the holder thereof.
12.12 Adjustments. Upon the happening of any of the following described
events, a Participant's rights with respect to Awards granted hereunder shall be
adjusted as hereinafter provided, unless otherwise specifically provided in the
Award Agreement.
12.12.1 Stock Splits and Recapitalizations. In the event the Company issues
any of its Shares as a stock dividend upon or with respect to the Shares, or in
the event Shares shall be subdivided or combined into a greater or smaller
number of Shares, or if, upon a merger or consolidation (except those described
in Section 12.4), reorganization, split-up, liquidation, combination,
recapitalization or the like of the Company, Shares shall be exchanged for other
securities of the Company, securities of another entity, cash or other property,
each Participant upon exercising an Award (for the aggregate purchase price to
be paid under the Award) shall be entitled to purchase such number of Shares,
other securities of the Company, securities of such other entity, cash or other
property as the Participant would have received if the Participant had been the
holder of the Shares with respect to which the Award is exercised at all times
between the Grant Date of the Award and the date of its exercise, and
appropriate adjustments shall be made in the purchase price per Share.
12.12.2 Restricted Stock. If any person owning Restricted Stock receives
new or additional or different shares or securities ("New Securities") in
connection with a corporate transaction described in Section 12.12.1 as a result
of owning such Restricted Stock, the New Securities shall be subject to all of
the conditions and restrictions applicable to the Restricted Stock with respect
to which such New Securities were issued.
12.12.3 Board Determination. Notwithstanding any provision to the
contrary, no adjustments shall be made pursuant to this Section 12.12 with
respect to ISOs unless (i) the
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Board, after consulting with counsel for the Company, determines that such
adjustments would not constitute a "modification," "extension" or "renewal" of
such ISOs as such terms are defined in Section 424 of the Code, (ii) would cause
any adverse tax consequences for the holders of such ISOs or (iii) the holders
of such ISOs consent to the adjustment. No adjustments to ISOs shall be made for
dividends paid in cash or in property other than securities of the Company.
12.12.4 Fractional Shares. No fractional Shares shall be issued under the
Plan. Any fractional Shares which, but for this Section, would have been issued
shall be deemed to have been issued and immediately sold to the Company for
their Fair Market Value, and promptly after such deemed issuance and sale the
Participant shall receive from the Company cash in lieu of such fractional
Shares.
12.12.5 Other Distributions. The Board may 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, 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.
12.12.6 Further Adjustment. Upon the happening of any of the events
described in Sections 12.12.1 or 12.12.5, the class and aggregate number of
Shares set forth in Sections 5.1 and 5.3 hereof that are subject to Awards which
previously have been or subsequently may be granted under the Plan shall be
appropriately adjusted to reflect the events described in such Sections. The
Board shall determine the specific adjustments to be made under this Section
12.12.6.
SECTION 13 AMENDMENT AND TERMINATION
13.1 Amendment, Suspension or Termination of the Plan. The Board may
modify, amend, suspend or terminate the Plan in whole or in part at any time;
provided, however, that no modification, amendment, suspension or termination of
the Plan shall be made without shareholder approval if such approval is
necessary to comply with any applicable tax or regulatory requirement; and
provided, further, that such modification, amendment, suspension or termination
shall not, without a Participant's consent, affect adversely the rights of such
Participant with respect to any Award previously made.
13.2 Amendment, Suspension or Termination of an Award. The Board may
modify, amend or terminate any outstanding Award, including, without limitation,
substituting therefor another Award of the same or a different type, changing
the date of exercise or realization and converting an ISO to a NQO; provided,
however, that the Participant's consent to such action shall be required unless
the Board determines that the action, taking into account any related action,
would not materially and adversely affect the Participant.
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SECTION 14 LEGAL CONSTRUCTION
14.1 Captions. The captions provided herein are included solely for
convenience of reference and shall not affect the meaning of any of the
provisions of the Plan or serve as a basis for interpretation or construction of
the Plan.
14.2 Severability. In the event any provision of the Plan is held
invalid or illegal for any reason, the illegality or invalidity shall not affect
the remaining provisions of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
14.3 Governing Law. The Plan and all rights under the Plan shall be
construed in accordance with and governed by the internal laws of the
Commonwealth of Massachusetts.
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EXHIBIT 4.2
As amended through February 18, 2000
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
<PAGE> 2
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
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 2,000,000 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
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<PAGE> 3
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.
(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
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<PAGE> 4
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:
(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
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<PAGE> 5
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 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
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<PAGE> 6
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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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
May 19, 2000
PROVANT, Inc.
67 Batterymarch Street, Suite 400
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 (i)
1,250,000 shares of the Company's common stock, $.01 par value per share (the
"Common Stock"), issuable pursuant to the Company's 1998 Equity Incentive Plan,
as amended to date, and 1,000,000 shares of Common Stock issuable pursuant to
the Company's 1998 Non-Qualified Stock Option Plan, as amended to date
(together, the "Plans"), and (ii) an indeterminate number of shares of such
Common Stock which may be issued or become issuable under the Plans 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 Plans, 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 Plans,
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 2,250,000 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 Plans by reason of stock dividends, stock splits
or other recapitalizations hereafter executed, if and when issued in accordance
with the terms of the
<PAGE> 2
Plans 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 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
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<PAGE> 1
EXHIBIT 23.2
ACCOUNTANT'S CONSENT
The Board of Directors
PROVANT, Inc.:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
Boston, Massachusetts
May 15, 2000
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of PROVANT, Inc. of our report, dated February 16, 1996, on the
financial statements of Star Mountain, Inc. for the year ended December 31,
1995, which report appears in PROVANT, Inc.'s Annual Report on Form 10-K for the
fiscal year ended June 30, 1999.
/s/ Friedman & Fuller, P.C.
Friedman & Fuller, P.C.
Rockville, Maryland
May 15, 2000
