<PAGE> 1
As filed with the Securities and Exchange Commission on May 16, 2000.
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 registrant 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 400, BOSTON, MA 02110
---------------------------------------------------
(Address of principal executive offices)
STOCK OPTION AGREEMENT (225,000 Shares)
SENN-DELANEY LEADERSHIP CONSULTING GROUP, INC.
NON-QUALIFIED STOCK OPTION AGREEMENTS (350,608 Shares)
SENN-DELANEY LEADERSHIP CONSULTING U.K., LTD.
NON-QUALIFIED STOCK OPTION AGREEMENTS (1,604 Shares)
(Full title of plans)
CURTIS M. UEHLEIN Copy 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)
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed maximum Proposed maximum
Title of each class of Amount being offering price aggregate offering Amount of
securities to be registered registered per share price registration fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 225,000 Shares(1) $16.375000 $3,684,375.00 $ 972.68
$.01 par value per share 350,608 Shares(1) 0.600388(2) 210,500.94(2) 55.57(2)
1,604 Shares(1) 0.934032 1,498.19 0.40
---------
$1,028.65
=========
====================================================================================================================
</TABLE>
(1) This Registration Statement covers 225,000 shares of Common Stock that may
be issued to an officer and director of PROVANT, Inc. (the "Company")
pursuant to a stock option agreement, 350,608 shares of Common Stock that
may be issued to certain employees of a subsidiary of the Company pursuant
to stock option agreements that were assumed by the Company in connection
with its acquisition of Senn-Delaney Leadership Consulting Group, Inc., and
1,604 shares of Common Stock that may be issued to certain employees of a
subsidiary of the Company pursuant to stock option agreements that were
assumed by the Company in connection with its acquisition of Senn-Delaney
Leadership Consulting U.K., Ltd. 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 stock option
agreements as a result of a stock dividend, stock split or other
recapitalization.
(2) Calculated based on the weighted average of (i) 273,592 shares of Common
Stock issuable at a price of $0.519384 per share and (ii) 77,016 shares of
Common Stock issuable at a price of $0.888147 per share.
================================================================================
<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 Annual Report on Form 10-K for fiscal year ended June
30,1999;
(b) The Company's Quarterly Report on Form 10-Q for the three months ended
September 30, 1999;
(c) The Company's Quarterly Report on Form 10-Q for the three months ended
December 31, 1999;
(d) The Company's Quarterly Report on Form 10-Q for the three months ended
March 31, 2000;
(e) The Company's Current Report on Form 8-K as filed with the Commission
on December 29, 1999, as amended on January 21, 2000; and
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 000-23989) as updated in
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.
2
<PAGE> 3
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 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 and 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.
3
<PAGE> 4
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.
The Company maintains an indemnification insurance policy that covers all
directors and officers of the Company and may cover directors and officers of
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,
4
<PAGE> 5
Any person 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.
5
<PAGE> 6
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 16th day of May 2000.
PROVANT, INC.
By: /s/ Curtis M. Uehlein
--------------------------------
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
---------- ----- ----
<S> <C> <C>
/s/ Curtis M. Uehlein President, May 16, 2000
- ------------------------------------ Chief Executive Officer and Director
CURTIS M. UEHLEIN
/s/ Paul M. Verrochi Director May 16, 2000
- ------------------------------------
PAUL M. VERROCHI
/s/ John H. Zenger Vice Chairman and Director May 16, 2000
- ------------------------------------
JOHN H. ZENGER
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Dominic J. Puopolo Vice Chairman and Director May 16, 2000
- ---------------------------------------
DOMINIC J. PUOPOLO
/s/ Rajiv Bhatt Executive Vice President, Treasurer, May 16, 2000
- --------------------------------------- Chief Financial Officer and Chief Accounting
RAJIV BHATT Officer
May 16, 2000
/s/ Herbert A. Cohen Director
- ---------------------------------------
HERBERT A. COHEN
/s/ Michael J. Davies Director May 16, 2000
- ----------------------------------------
MICHAEL J. DAVIES
/s/ Bert Decker Director May 16, 2000
- ----------------------------------------
BERT DECKER
/s/ Paul C. Green Director May 16, 2000
- ----------------------------------------
PAUL C. GREEN, PH.D.
Director
- ----------------------------------------
DAVID B. HAMMOND
/s/ John R. Murphy Chairman of the Board May 16, 2000
- -----------------------------------------
JOHN R. MURPHY
</TABLE>
7
<PAGE> 8
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Ester T. Smith Director May 16, 2000
- ---------------------------------------
ESTHER T. SMITH
/s/ A. Carl von Sternberg Director May 16, 2000
- ---------------------------------------
A. CARL VON STERNBERG
/s/ Marc S. Wallace Director May 16, 2000
- ---------------------------------------
MARC S. WALLACE
</TABLE>
8
<PAGE> 9
EXHIBIT INDEX
EXHIBIT NO. TITLE
- ----------- -----
4.1 Stock Option Agreement (225,000 Shares)
4.2 Form of Senn-Delaney Leadership Consulting Group, Inc.
Stock Option Agreement (350,608 Shares)
4.3 Form of Senn-Delaney Leadership Consulting U.K., Ltd.
Stock Option Agreement (1,604 Shares)
4.4 Roll-Over Stock Option Assumption Agreement
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)
9
<PAGE> 1
Exhibit 4.1
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT between PROVANT, Inc., a Delaware corporation
(the "Company"), and Curtis M. Uehlein (the "Grantee") dated effective as of
October 8, 1999 (the "Date of Grant").
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto act and agree as follows:
Section 1. The Plan
The option granted pursuant to this Agreement is not granted pursuant to
the Company's 1998 Equity Incentive Plan (the "Plan"). This Agreement shall
nevertheless be subject to the terms of the Plan, a copy of which is attached
hereto as Exhibit A and is incorporated herein in its entirety, except to the
extent this Agreement and the Plan or any agreement between the Company and the
Grantee are in conflict, in which case this Agreement or such other agreement
shall control. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Plan.
Section 2. Grant of Option
The Company hereby grants to the Grantee, as of the Date of Grant, an
option (the "Option") to purchase up to 225,000 shares of Common Stock, par
value $.01 per share, of the Company (the "Option Shares") at a price per share
of $16.375, both the price and the number of shares being subject to adjustment
only as provided herein and in the Plan.
Section 3. Terms of Option
Subject to such further limitations as are provided herein, the Option
shall be exercisable in three (3) installments, with the Grantee having the
right hereunder to purchase from the Company the following number of Option
Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion:
(a) on and after the first anniversary of the Date of Grant, up to
one-third (ignoring fractional shares) of the total number of Option
Shares;
(b) on and after the second anniversary of the Date of Grant, up to an
additional one-third (ignoring fractional shares) of the total number of
Option Shares; and
(c) on and after the third anniversary of the Date of Grant, the
remaining Option Shares.
<PAGE> 2
Section 4. Termination of the Option
The Option and all rights hereunder with respect thereto, to the extent
such rights shall not have been exercised, shall terminate and become null and
void after the close of business on the day that is seven (7) years from the
Date of Grant (the "Option Term").
Section 5. Cessation of Grantee's Employment
(a) If the Grantee ceases to be employed by the Company by reason of the
Grantee's death during the Option Term, the Option shall be exercisable, to the
extent the Option was exercisable on the date of the Grantee's death, either by
the Grantee's executor or administrator or, if not so exercised, by the legatees
or distributees of the Grantee's estate, only during the twelve (12) months
immediately following the Grantee's death, after which time the Option shall
terminate.
(b) If the Grantee ceases to be employed by the Company during the Option
Term for any other reason, the Option (i) to the extent that it is not then
exercisable by the Grantee shall terminate on the date the Grantee's employment
with the Company ceased, and (ii) to the extent that it was exercisable on the
date the Grantee's employment with the Company ceased shall continue to be
exercisable during the thirty (30) days immediately following such cessation,
after which time the Option shall terminate.
(c) Notwithstanding any other provisions set forth herein or in the Plan,
in no event shall the Option be exercised after the expiration of the Option
Term.
(d) Notwithstanding any other provisions set forth herein or in the Plan,
the Option shall terminate automatically and without notice to the Grantee on
the date the Grantee's employment is terminated for "cause". For the purposes
hereof, "cause" shall mean any conduct that the Board of Directors of the
Company determines in good faith impairs the reputation, goodwill or business of
the Company or any of its subsidiaries or is inimical to the best interests of
the Company or any of its subsidiaries. A termination for "cause" will include
any resignation in anticipation of discharge for "cause" or accepted by the
Company in lieu of a formal discharge for "cause".
Section 6. Exercise of Option
(a) The Grantee may exercise the Option with respect to all or any part of
the number of Option Shares then exercisable hereunder by giving written notice
of election to the Company, attention: Treasurer. Such notice shall specify the
number of Option Shares with respect to which the Option is to be exercised.
2
<PAGE> 3
(b) At the time the Option is exercised, the Grantee shall make full
payment for the Option Shares purchased, in cash, certified check or bank
cashier's check, or, with the prior written consent of the Company, in whole or
in part through the surrender of shares of Common Stock having a fair market
value equal to the exercise price, through delivery of a note or pursuant to any
cashless exercise program that the Company may adopt. The Grantee also shall pay
to the Company or make provision satisfactory to the Company for the payment of
any taxes required by law to be withheld by the Company at the time of the
exercise of the Option or the sale of the Option Shares acquired upon such
exercise. For purposes of this Section 6(b) and Section 6(c) below, "fair market
value" shall be determined based on the last sale price of the Common Stock as
reported by the principal national securities exchange or automated quotation
system on which the Common Stock is listed on the date of exercise.
(c) In the event exercise of the Option otherwise would require the Company
to issue a fractional share of Common Stock of the Company, except as otherwise
provided below, such fraction shall be disregarded and the purchase price
payable in connection with such exercise shall be appropriately reduced. Any
such fractional share shall be carried forward and added to any shares covered
by future exercise(s) of the Option.
(d) Notwithstanding anything to the contrary contained herein, the Option
shall not be exercisable unless either (a) a registration statement under the
Securities Act of 1933, as amended, with respect to the Option Shares shall have
become, and continues to be, effective, or (b) the Grantee (i) shall have
represented, warranted and agreed, in form and substance satisfactory to the
Company, at the time of exercising the Option, that the Grantee is acquiring the
Option Shares for the Grantee's own account, for investment and not with a view
to or in connection with any distribution, (ii) shall have agreed to
restrictions on transfer in form and substance satisfactory to the Company, and
(iii) shall have agreed to an endorsement which makes appropriate reference to
such representations, warranties, agreements and restrictions on the
certificate(s) representing the Option Shares.
Section 7. No Rights of a Stockholder
Neither the Grantee nor any personal representative shall be, or shall have
any of the rights and privileges of, a stockholder of the Company with respect
to any Option Shares, in whole or in part, prior to the date of exercise of the
Option.
Section 8. Nontransferability of Option
During the Grantee's lifetime, unless otherwise allowed by the Board of
Directors of the Company pursuant to Section 6.4 of the Plan, the Option shall
be exercisable only by the Grantee, and the Option shall not in any event be
transferable except, in case of the death of the Grantee, by will or the laws of
descent and distribution.
Section 9. Employment Not Affected
Neither the granting of the Option nor its exercise shall be construed as
granting to the Grantee any right with respect to the Grantee's continued
employment by the Company. Except
3
<PAGE> 4
as may otherwise be limited by a written agreement between the Company and the
Grantee, the right of the Company to terminate at will the Grantee's employment
at any time (whether by dismissal, discharge, retirement or otherwise) is
specifically reserved by the Company.
Section 10. Amendment of Option
The Option may be amended or modified at any time by the Company; provided,
however, that the Grantee's consent to such amendment or modification shall be
required unless the Board of Directors or Compensation Committee (if any) of the
Company determines that the amendment or modification, taking into account any
related action, would not materially and adversely affect the Grantee.
Section 11. Notice
(a) Any notices required or permitted hereunder shall be addressed to the
Company at 67 Batterymarch Street, Suite 400, Boston, Massachusetts 02110,
Attention: Treasurer, or to the Grantee at the most current address of the
Grantee appearing in the records of the Company, as the case may be.
(b) Either the Company or the Grantee may, by notice to the other given in
the manner provided in Section 11(a), change the designated address for future
notice.
Section 12. Governing Law
The validity, construction, interpretation and effect of this instrument
shall be governed by and determined in accordance with the law of the
Commonwealth of Massachusetts, without regard to conflicts of law principles.
4
<PAGE> 5
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized and the Grantee has hereunto
set his hand all as of the 8th day of October 1999.
PROVANT, INC.
By /s/ Rajiv Bhatt
-----------------------------
Its: Executive Vice President
ACCEPTED:
/s/ Curtis M. Uehlein
-------------------------------
Curtis M. Uehlein, Grantee
5
<PAGE> 1
EXHIBIT 4.2
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT(this "AGREEMENT"), dated
_________________, is made by and between SENN-DELANEY LEADERSHIP CONSULTING
GROUP, INC., a California corporation (the "COMPANY"), and _______________, an
Employee (as defined herein) of Company (the "OPTIONEE")
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its common stock, par value $1.00 per share (the "COMMON
STOCK"); and
WHEREAS, the Board (as defined herein), has determined that it would be to
the advantage and best interest of the Company and its shareholders to grant the
non-qualified option provided for herein to the Optionee as an inducement to
enter into, or remain in, the service of the Company or a Subsidiary of the
Company and as an incentive for increased efforts during such service, and has
advised the Company thereof and instructed the undersigned officers to issue
said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
"AGREEMENT" shall have the meaning set forth in. preamble hereto.
"BOARD" shall mean the Board of Directors of the Company.
"CAUSE," unless otherwise defined in an Employee's written employment
agreement with the Company or a Subsidiary of the Company, shall mean (i) gross
negligence or willful misconduct, (ii) a breach of any of the Employee's
material duties under their employment agreement, which breach remains uncured
for a period of 20 days after such Employee receives notice thereof, (iii) fraud
or other conduct against the material best interests of the Company or (iv) a
conviction of a felony if such conviction has a material adverse effect on the
Company.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" shall have the meaning set forth in recitals hereto.
"COMPANY" shall have the meaning set forth in preamble hereto.
<PAGE> 2
"DIRECTOR" shall mean a member of the Board.
"EMPLOYEE" shall mean any officer or other employee (as defined in
accordance with Section 3401(c) of the Code) of the Company or a Subsidiary of
the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"OPTION" shall mean the non-qualified option to purchase Common Stock of
the Company granted under this Agreement.
"OPTIONEE" shall have the meaning set forth in preamble hereto.
"RULE 16B-3" shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended from time to time.
"SECRETARY" shall mean the Secretary of the Company.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHAREHOLDERS' AGREEMENT" shall mean that certain Agreement Among
Shareholders, dated as of December 14 1994, among the Company and the other
persons or entities party thereto, as such agreement may be supplemented or
amended from time to time, or any successor agreement to such agreement.
"SUBSIDIARY" shall mean (i) a corporation, association or other business
entity of which 50% or more of the total combined voting power of all classes of
capital stock is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries of the Company or by the Company and one or more Subsidiaries
thereof, (ii) any partnership of which 50% or more of the capital and profits
interests is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries of the Company or by the Company and one or more Subsidiaries
thereof, and (iii) any other entity not described in clauses (i) or (ii) above
of which 50% or more of the ownership and the power, pursuant to a written
contract or agreement, to direct the policies and management or the financial
and the affairs thereof, are owned or controlled by the Company or by one or
more other Subsidiaries of the Company or by the Company and one or more
Subsidiaries thereof.
"TERMINATION OF EMPLOYMENT" shall mean the time when the employee-employer
relationship between the Optionee and the Company or any Subsidiary is
terminated for any reason, with or without cause, including, but not by way of
limitation, a termination by resignation, discharge, death, disability or
retirement; but excluding (i) terminations where there is a simultaneous
reemployment or continuing employment of the Optionee by the Company or any
Subsidiary, (ii) at the discretion of the Board, terminations which result in a
temporary severance of the employee-employer relationship, and (iii) at the
discretion of the Board, terminations which are followed by the simultaneous
establishment of a consulting relationship by the Company or a Subsidiary with
the former employee. The Board, in its absolute discretion, shall determine the
effect of all matters and questions relating to Termination of Employment,
including, but not by way of limitation, the question of whether a
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Termination of Employment resulted from a discharge for good cause, and all
questions of whether a particular leave of absence constitutes a Terminations of
Employment. Notwithstanding any other provision of this Agreement, the Company
or any Subsidiary has an absolute and unrestricted right to terminate an
Employee's employment at any time for any reason whatsoever, with or without
cause, except to the extent expressly provided otherwise in writing.
ARTICLE II.
GRANT OF OPTION
Section 2.1. - GRANT OF OPTION
In consideration of the Optionee's agreement to remain in the service of
the Company or any of its Subsidiaries and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the Optionee
the option to purchase any part or all of an aggregate of _________ shares of
Common Stock upon the terms and conditions set forth in this Agreement.
Section 2.2. - PURCHASE PRICE
The purchase price of the shares of Common Stock covered by the Option
shall be $_______ per share without commission or other charge.
Section 2.3. - CONSIDERATION TO COMPANY
In consideration of the granting of this Option by the Company, the
Optionee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe. Nothing in this Agreement shall confer upon the Optionee any
right to continue in the employ of the Company or any Subsidiary or shall
interfere with or restrict in any way the rights of the Company and its
Subsidiaries, which are hereby expressly reserved, to discharge the Optionee at
any time for any reason whatsoever, with or without Cause.
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Section 2.4. - ADJUSTMENTS IN OPTION
The Board may, in its sole discretion, make adjustments with respect to the
Option to the extent that it determines that any dividend or other distribution,
recapitalization, reclassification, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
liquidation, dissolution, sale of all or substantially all of the assets of the
Company, exchange of Common Stock or issuance or warrants or other convertible
securities, or other similar corporate transaction or event, affects the Common
Stock such that an adjustment is appropriate, as determined by the Board in its
sole discretion, in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available hereunder.
ARTICLE III.
PERIOD OF EXERCISABILITY
Section 3.1. - COMMENCEMENT OF EXERCISABILITY
(a) The Option shall become exercisable in equal installments over two
years. If however substantially all of the assets of the Company are acquired by
another corporation or in case of a reorganization of the Company involving the
acquisition of the Company by another entity, all outstanding stock options of
Optionee become exercisable.
Section 3.2. - DURATION OF EXERCISABILITY
The Option shall remain exercisable until it becomes unexercisable under
SECTION 3.3.
Section 3.3. - EXPIRATION OF OPTION
The Option may not be exercised to any extent by anyone after the first to
occur of the following events:
(a) The expiration of five (5) years from the date the Option was granted;
or
(b) The time of the Optionee's Termination of Employment unless such
Termination of Employment results from his death, his retirement, his disability
or his being discharged other than for Cause; or
(c) The expiration of three (3) months from the date of the Optionee's
Termination of Employment by reason of his retirement or his being discharged
other than for Cause, unless the Optionee dies within said three-month period;
or
(d) The expiration of one (1) year from the date of the Optionee's
Termination of Employment by reason of his disability; or
(e) The expiration of one (1) year from the date of the Optionee's death.
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ARTICLE IV.
EXERCISE OF OPTION
Section 4.1. - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Optionee, only he may exercise the Option or any
portion thereof. After the death of the Optionee, any exercisable portion of the
Option may, prior to the time when the Option becomes unexercisable under
Section 3.3, be exercised by his personal representative or by any person
empowered to do so under the deceased Optionee's will or under the then
applicable laws of descent and distribution.
Section 4.2. - PARTIAL EXERCISE
Any exercisable portion of the Option or the entire Option, if then wholly
exercisable, may be exercised in whole or in part at any time prior to the time
when the Option or portion thereof becomes unexercisable under Section 3.3;
provided, however, that each partial exercise shall be for not less than ten
(10) shares (except that exercise of the Option with respect to the final
remaining shares available thereunder may be for fewer shares) and shall be for
whole shares only.
Section 4.3. - MANNER OF EXERCISE
The Option, or any exercisable portion thereof, may be exercised solely by
delivery to the Secretary of the following prior to the time when the Option or
such portion becomes unexercisable under Section 3.3:
(a) A written notice complying with the applicable rules established by the
Board stating that the Option, or a portion thereof, is exercised. The notice
shall be signed by the Optionee or other person then entitled to exercise the
Option or such portion;
(b) (i) Full cash payment to the Secretary of the Company for the shares
with respect to which such Option or portion is exercised;
(ii) With the consent of the Board, a full recourse promissory note
bearing interest (at no less than such rate as shall then preclude the
imputation of interest under the Code or successor provision) and payable upon
such terms as may be prescribed by the Board. The Board may also prescribe the
form of such note and the security to be given for such note. The Option may not
be exercised, however, by delivery of a promissory note or by a loan from the
Company when or where such loan or other extension of credit is prohibited by
law; or
(iii) With the consent of the Board, any combination of the
consideration provided in the foregoing subparagraphs (i) and (ii);
(c) A bona fide written representation and agreement, in a form
satisfactory to the Board, signed by the Optionee or other person then entitled
to exercise such Option or portion, stating that the shares of stock are being
acquired for his own account, for investment and without any present intention
of distributing or reselling said shares or any of them except as may be
permitted under the Securities Act and then applicable rules and regulations
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thereunder, and that the Optionee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the Company if
any sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Board may, in its absolute
discretion, take whatever additional actions it deems appropriate to ensure the
observance and performance of such representation and agreement and to effect
compliance with the Securities Act and any other federal or state securities
laws or regulations. Without limiting the generality of the foregoing, the Board
may require an opinion of counsel acceptable to it to the effect that any
subsequent transfer of shares acquired on an Option exercise does not violate
the Securities Act, and may issue stop-transfer orders covering such shares.
Share certificates evidencing stock issued on exercise of this Option shall bear
an appropriate legend referring to the provisions of this subsection (c) and the
agreements herein. The written representation and agreement referred to in the
first sentence of this subsection (c) shall, however, not be required if the
shares to be issued pursuant to such exercise have been registered under the
Securities Act, and such registration is then effective in respect of such
shares;
(d) Full payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; and
(e) In the event the Option or portion shall be exercised pursuant to
SECTION 4.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option.
Section 4.4. - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of Common Stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of Common Stock purchased
upon the exercise of the Option or portion thereof prior to fulfillment of all
of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which
such class of stock is then listed;
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Board shall, in its absolute discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Board shall, in its absolute discretion,
determine to be necessary or advisable;
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(d) The receipt by the Company of full payment for such shares, including
payment of all amounts which, under federal, state or local tax law, the Company
(or other employer corporation) is required to withhold upon exercise of the
Option;
(e) The receipt by the Company of any documents or other instruments the
Board deems necessary to ensure that such shares, and the holders thereof, are
subject to the Shareholders' Agreement;
(f) The receipt by the Company of a consent to the Company's election to be
taxable as an S Corporation which is appropriately executed by the Optionee or,
if the Optionee has died, by the person who shall own such shares; and
(g) The lapse of such reasonable period of time following the exercise of
the Option as the Board may from time to time establish for reasons of
administrative convenience.
Section 4.5. - RIGHTS AS SHAREHOLDER
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V.
OTHER PROVISIONS
Section 5.1. - ADMINISTRATION
The Board shall have the power to interpret this Agreement and to adopt
such rules for the administration, interpretation and application of this
Agreement as are consistent with the intent, as determined by the Board in its
sole discretion, hereof and to interpret, amend or revoke any such rules. All
actions taken and all interpretations and determinations made by the Board in
good faith shall be final and binding upon the Optionee, the Company and all
other interested persons. No member of the Board shall be personally liable for
any action, determination or interpretation made in good faith with respect to
this Agreement or the Option. In its absolute discretion, the Board may at any
time and from time to time exercise any and all rights and duties of the Board
under this Agreement except with respect to matters which under Rule 16b-3 or
Section 162(m) of the Code, or any regulations or rules issued thereunder, are
required to be determined other than by the Board.
Section 5.2. - OPTION NOT TRANSFERABLE
Neither the Option nor any interest or right therein or part thereof shall
be sold, pledged, assigned, or transferred in any manner other than by will or
the laws of descent and distribution, unless and until such Option has been
exercised, or the shares underlying such Option have been issued, and all
restrictions applicable to such shares have lapsed. Neither the Option nor any
interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of the Optionee or his successors in interest or shall
be subject to disposition by
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transfer, alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by operation of
law by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect, except to the extent that such disposition is
permitted by the preceding sentence.
Section 5.3. - SHARES TO BE RESERVED
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of Common Stock as will be sufficient to
satisfy the requirements of this Agreement.
Section 5.4. - NOTICES
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Optionee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Optionee shall, if the Optionee is
then deceased, be given to the Optionee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service; provided, however,
that any notice to be given by the Optionee relating to the exercise of the
Option or any portion thereof shall be deemed duly given upon receipt by the
Secretary.
Section 5.5. - TITLES
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
Section 5.6. - GOVERNING LAW
This Agreement shall be administered, interpreted and enforced under the
internal laws of the State of California without regard to the conflicts of laws
provisions thereof.
Section 5.7. - CONFORMITY TO SECURITIES LAWS
The Optionee acknowledges that this Agreement is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including, without limitation, the applicable exemptive
conditions of Rule 16b-3. Notwithstanding anything herein to the contrary, this
Agreement shall be administered, and the Option is granted and may be exercised,
only in such a manner as to conform to such laws, rules and regulations. To the
extent permitted by applicable law, this Agreement shall be deemed amended to
the extent necessary to conform to such laws, rules and regulations.
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Section 5.8. - AMENDMENTS
This Agreement may be amended without the consent of the Optionee, provided
that, subject to SECTION 2.4, such amendment would not impair any rights of the
Optionee under this Agreement. Subject to SECTION 2.4, No amendment of this
Agreement shall, without the consent of the Optionee, impair any rights of the
Optionee under this Agreement.
Section 5.9. - SHAREHOLDERS' AGREEMENT
The Optionee hereby acknowledges and agrees, on his own behalf and on
behalf of his representatives, heirs, successors and assigns, that the Option
and all securities issued pursuant to this Agreement shall be subject to the
terms of the Shareholders' Agreement, including, without limitation, the
transfer restrictions and repurchase rights contained therein.
Section 5.10. - LEGENDS
Each certificate representing securities to be issued upon exercise of the
Option shall bear the following legends:
SALE, TRANSFER OR HYPOTHICATION OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED BY THE PROVISIONS OF AN AGREEMENT AMONG
SHAREHOLDERS, DATED AS OF DECEMBER 14, 1994, A COPY OF WHICH MAY BE
INSPECTED AT THE PRINCIPAL OFFICE OF THE CORPORATION ISSUING SUCH
SHARES, ALL OF THE PROVISIONS OF WHICH ARE INCORPORATED HEREIN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR LAWS.
Section 5.11. - S CORPORATION COVENANT
The Optionee acknowledges that the Company is an "S corporation" within the
meaning of Section 1361(a) of the Code and the Optionee hereby agrees to consent
to the Company's election to be taxable as an S corporation at such time and in
such form as may be required by the Company.
Section 5.12. - Counterparts
This Agreement may be executed simultaneously in one or more counterparts,
any one of which need not contain the signature of more than one party, but all
such counterparts taken together will constitute one and the same agreement.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto.
SENN-DELANEY LEADERSHIP CONSULTING
GROUP, INC.
By:________________________________
Name:
Title:
___________________________
[Optionee's name]
___________________________
(Optionee's signature)
Optionee's Address:
___________________________
___________________________
___________________________
Optionee's Taxpayer
Identification Number:
___________________________
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<PAGE> 1
EXHIBIT 4.3
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "AGREEMENT"), dated
____________________, is made by and between SENN-DELANEY LEADERSHIP
CONSULTING U.K., LTD., a California corporation (the "COMPANY"), and -------
_________________, an Employee (as defined herein) of Company (the "OPTIONEE")
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its common stock, par value $1.00 per share (the "COMMON
STOCK"); and
WHEREAS, the Board (as defined herein), has determined that it would be to
the advantage and best interest of the Company and its shareholders to grant the
non-qualified option provided for herein to the Optionee as an inducement to
enter into, or remain in, the service of the Company or a Subsidiary of the
Company and as an incentive for increased efforts during such service, and has
advised the Company thereof and instructed the undersigned officers to issue
said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
"AGREEMENT" shall have the meaning set forth in preamble hereto.
"BOARD" shall mean the Board of Directors of the Company.
"CAUSE," unless otherwise defined in an Employee's written employment
agreement with the Company or a Subsidiary of the Company, shall mean (i) gross
negligence or willful misconduct, (ii) a breach of any of the Employee's
material duties under their employment agreement, which breach remains uncured
for a period of 20 days after such Employee receives notice thereof, (iii) fraud
or other conduct against the material best interests of the Company or (iv) a
conviction of a felony if such conviction has a material adverse effect on the
Company.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" shall have the meaning set forth in recitals hereto.
<PAGE> 2
"COMPANY" shall have the meaning set forth in preamble hereto.
"DIRECTOR" shall mean a member of the Board.
"EMPLOYEE" shall mean any officer or other employee (as defined in
accordance with Section 3401(c) of the Code) of the Company or a Subsidiary of
the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"OPTION" shall mean the non-qualified option to purchase Common Stock of
the Company granted under this Agreement.
"OPTIONEE" shall have the meaning set forth in preamble hereto.
"RULE 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended from time to time.
"SECRETARY" shall mean the Secretary of the Company.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHAREHOLDERS' AGREEMENT" shall mean that certain Agreement Among
Shareholders, dated as of December 14, 1994, among the Company and the other
persons or entities party thereto, as such agreement may be supplemented or
amended from time to time, or any successor agreement to such agreement.
"SUBSIDIARY" shall mean (i) a corporation, association or other business
entity of which 50% or more of the total combined voting power of all classes of
capital stock is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries of the Company or by the Company and one or more Subsidiaries
thereof, (ii) any partnership of which 50% or more of the capital and profits
interests is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries of the Company or by the Company and one or more Subsidiaries
thereof, and (iii) any other entity not described in clauses (i) or (ii) above
of which 50% or more of the ownership and the power, pursuant to a written
contract or agreement, to direct the policies and management or the financial
and the affairs thereof, are owned or controlled by the Company or by one or
more other Subsidiaries of the Company or by the Company and one or more
Subsidiaries thereof.
"TERMINATION OF EMPLOYMENT" shall mean the time when the employee-employer
relationship between the Optionee and the Company or any Subsidiary is
terminated for any reason, with or without cause, including, but not by way of
limitation, a termination by resignation, discharge, death, disability or
retirement; but excluding (i) terminations where there is a simultaneous
reemployment or continuing employment of the Optionee by the Company or any
Subsidiary, (ii) at the discretion of the Board, terminations which result in a
temporary severance of the employee-employer relationship, and (iii) at the
discretion of the Board, terminations which are followed by the simultaneous
establishment of a consulting relationship by the Company or a Subsidiary with
the former employee. The Board, in its
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absolute discretion, shall determine the effect of all matters and questions
relating to Termination of Employment, including, but not by way of limitation,
the question of whether a Termination of Employment resulted from a discharge
for good cause, and all questions of whether a particular leave of absence
constitutes a Terminations of Employment. Notwithstanding any other provision of
this Agreement, the Company or any Subsidiary has an absolute and unrestricted
right to terminate an Employee's employment at any time for any reason
whatsoever, with or without cause, except to the extent expressly provided
otherwise in writing.
ARTICLE II.
GRANT OF OPTION
Section 2.1. - GRANT OF OPTION
In consideration of the Optionee's agreement to remain in the service of
the Company or any of its Subsidiaries and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the Optionee
the option to purchase any part or all of an aggregate of _____ shares of Common
Stock upon the terms and conditions set forth in this Agreement.
Section 2.2. - PURCHASE PRICE
The purchase price of the shares of Common Stock covered by the Option
shall be $____ per share without commission or other charge.
Section 2.3. - CONSIDERATION TO COMPANY
In consideration of the granting of this Option by the Company, the
Optionee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe. Nothing in this Agreement shall confer upon the Optionee any
right to continue in the employ of the Company or any Subsidiary or shall
interfere with or restrict in any way the rights of the Company and its
Subsidiaries, which are hereby expressly reserved, to discharge the Optionee at
any time for any reason whatsoever, with or without Cause.
Section 2.4. - ADJUSTMENTS IN OPTION
The Board may, in its sole discretion, make adjustments with respect to the
Option to the extent that it determines that any dividend or other distribution,
recapitalization, reclassification, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
liquidation, dissolution, sale of all or substantially all of the assets of the
Company, exchange of Common Stock or issuance or warrants or other convertible
securities, or other similar corporate transaction or event, affects the Common
Stock such that an adjustment is appropriate, as determined by the Board in its
sole discretion, in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available hereunder.
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ARTICLE III.
PERIOD OF EXERCISABILITY
Section 3.1. - COMMENCEMENT OF EXERCISABILITY
(a) The Option shall be exercisable immediately
Section 3.2. - DURATION OF EXERCISABILITY
The Option shall remain exercisable until it becomes unexercisable under
SECTION 3.3.
Section 3.3. - EXPIRATION OF OPTION
The Option may not be exercised to any extent by anyone after the first to
occur of the following events:
(a) The expiration of five (5) years from the date the Option was granted;
or
(b) The time of the Optionee's Termination of Employment unless such
Termination of Employment results from his death, his retirement, his disability
or his being discharged other than for Cause; or
(c) The expiration of three (3) months from the date of the Optionee's
Termination of Employment by reason of his retirement or his being discharged
other than for Cause, unless the Optionee dies within said three-month period;
or
(d) The expiration of one (1) year from the date of the Optionee's
Termination of Employment by reason of his disability; or
(e) The expiration of one (1) year from the date of the Optionee's death.
ARTICLE IV.
EXERCISE OF OPTION
Section 4.1. - PERSON ELIGIBLE TO EXERCISE
During the lifetime of the Optionee, only he may exercise the Option or any
portion thereof. After the death of the Optionee, any exercisable portion of the
Option may, prior to the time when the Option becomes unexercisable under
SECTION 3.3, be exercised by his personal representative or by any person
empowered to do so under the deceased Optionee's will or under the then
applicable laws of descent and distribution.
Section 4.2. - PARTIAL EXERCISE
Any exercisable portion of the Option or the entire Option, if then wholly
exercisable, may be exercised in whole or in part at any time prior to the time
when the Option or portion thereof becomes unexercisable under SECTION 3.3;
provided, however, that each partial exercise
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shall be for not less than ten (10) shares (except that exercise of the Option
with respect to the final remaining shares available thereunder may be for fewer
shares) and shall be for whole shares only.
Section 4.3. - MANNER OF EXERCISE
The Option, or any exercisable portion thereof, may be exercised solely by
delivery to the Secretary of the following prior to the time when the Option or
such portion becomes unexercisable under SECTION 3.3:
(a) A written notice complying with the applicable rules established by the
Board stating that the Option, or a portion thereof, is exercised. The notice
shall be signed by the Optionee or other person then entitled to exercise the
Option or such portion;
(b) (i) Full cash payment to the Secretary of the Company for the
shares with respect to which such Option or portion is exercised;
(ii) With the consent of the Board, a full recourse promissory
note bearing interest (at no less than such rate as shall then preclude the
imputation of interest under the Code or successor provision) and payable
upon such terms as may be prescribed by the Board. The Board may also
prescribe the form of such note and the security to be given for such note.
The Option may not be exercised, however, by delivery of a promissory note
or by a loan from the Company when or where such loan or other extension of
credit is prohibited by law; or
(iii) With the consent of the Board, any combination of the
consideration provided in the foregoing subparagraphs (i) and (ii);
(c) A bona fide written representation and agreement, in a form
satisfactory to the Board, signed by the Optionee or other person then entitled
to exercise such Option or portion, stating that the shares of stock are being
acquired for his own account, for investment and without any present intention
of distributing or reselling said shares or any of them except as may be
permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the Company if
any sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Board may, in its absolute
discretion, take whatever additional actions it deems appropriate to ensure the
observance and performance of such representation and agreement and to effect
compliance with the Securities Act and any other federal or state securities
laws or regulations. Without limiting the generality of the foregoing, the Board
may require an opinion of counsel acceptable to it to the effect that any
subsequent transfer of shares acquired on an Option exercise does not violate
the Securities Act, and may issue stop-transfer orders covering such shares.
Share certificates evidencing stock issued on exercise of this Option shall bear
an appropriate legend referring to the provisions of this subsection (c) and the
agreements herein. The written representation and agreement referred to in the
first sentence of this subsection (c) shall, however, not be required if the
shares to be issued pursuant to such exercise have been
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registered under the Securities Act, and such registration is then effective in
respect of such shares;
(d) Full payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; and
(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option.
Section 4.4. - CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
The shares of Common Stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of Common Stock purchased
upon the exercise of the Option or portion thereof prior to fulfillment of all
of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which
such class of stock is then listed;
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Board shall, in its absolute discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Board shall, in its absolute discretion,
determine to be necessary or advisable;
(d) The receipt by the Company of full payment for such shares, including
payment of all amounts which, under federal, state or local tax law, the Company
(or other employer corporation) is required to withhold upon exercise of the
Option;
(e) The receipt by the Company of any documents or other instruments the
Board deems necessary to ensure that such shares, and the holders thereof, are
subject to the Shareholders' Agreement;
(f) The receipt by the Company of a consent to the Company's election to be
taxable as an S Corporation which is appropriately executed by the Optionee or,
if the Optionee has died, by the person who shall own such shares; and
(g) The lapse of such reasonable period of time following the exercise of
the Option as the Board may from time to time establish for reasons of
administrative convenience.
6
<PAGE> 7
Section 4.5. - RIGHTS AS SHAREHOLDER
The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V.
OTHER PROVISIONS
Section 5.1. - ADMINISTRATION
The Board shall have the power to interpret this Agreement and to adopt
such rules for the administration, interpretation and application of this
Agreement as are consistent with the intent, as determined by the Board in its
sole discretion, hereof and to interpret, amend or revoke any such rules. All
actions taken and all interpretations and determinations made by the Board in
good faith shall be final and binding upon the Optionee, the Company and all
other interested persons. No member of the Board shall be personally liable for
any action, determination or interpretation made in good faith with respect to
this Agreement or the Option. In its absolute discretion, the Board may at any
time and from time to time exercise any and all rights and duties of the Board
under this Agreement except with respect to matters which under Rule 16b-3 or
Section 162(m) of the Code, or any regulations or rules issued thereunder, are
required to be determined other than by the Board.
Section 5.2. - OPTION NOT TRANSFERABLE
Neither the Option nor any interest or right therein or part thereof shall
be sold, pledged, assigned, or transferred in any manner other than by will or
the laws of descent and distribution, unless and until such Option has been
exercised, or the shares underlying such Option have been issued, and all
restrictions applicable to such shares have lapsed. Neither the Option nor any
interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of the Optionee or his successors in interest or shall
be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect, except to
the extent that such disposition is permitted by the preceding sentence.
Section 5.3. - SHARES TO BE RESERVED
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of Common Stock as will be sufficient to
satisfy the requirements of this Agreement.
7
<PAGE> 8
Section 5.4. - NOTICES
Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Optionee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this SECTION 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Optionee shall, if the Optionee is
then deceased, be given to the Optionee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this SECTION 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service; provided, however,
that any notice to be given by the Optionee relating to the exercise of the
Option or any portion thereof shall be deemed duly given upon receipt by the
Secretary.
Section 5.5. - TITLES
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
Section 5.6. - GOVERNING LAW
This Agreement shall be administered, interpreted and enforced under the
internal laws of the State of California without regard to the conflicts of laws
provisions thereof.
Section 5.7. - CONFORMITY TO SECURITIES LAWS
The Optionee acknowledges that this Agreement is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including, without limitation, the applicable exemptive
conditions of Rule 16b-3. Notwithstanding anything herein to the contrary, this
Agreement shall be administered, and the Option is granted and may be exercised,
only in such a manner as to conform to such laws, rules and regulations. To the
extent permitted by applicable law, this Agreement shall be deemed amended to
the extent necessary to conform to such laws, rules and regulations.
Section 5.8. - AMENDMENTS
This Agreement may be amended without the consent of the Optionee, provided
that, subject to SECTION 2.4, such amendment would not impair any rights of the
Optionee under this Agreement. Subject to SECTION 2.4, No amendment of this
Agreement shall, without the consent of the Optionee, impair any rights of the
Optionee under this Agreement.
Section 5.9. - SHAREHOLDERS' AGREEMENT
The Optionee hereby acknowledges and agrees, on his own behalf and on
behalf of his representatives, heirs, successors and assigns, that the Option
and all securities issued pursuant
8
<PAGE> 9
to this Agreement shall be subject to the terms of the Shareholders' Agreement,
including, without limitation, the transfer restrictions and repurchase rights
contained therein.
Section 5.10. - LEGENDS
Each certificate representing securities to be issued upon exercise of the
Option shall bear the following legends:
SALE, TRANSFER OR HYPOTHICATION OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED BY THE PROVISIONS OF AN AGREEMENT AMONG
SHAREHOLDERS, DATED AS OF DECEMBER 14, 1994, A COPY OF WHICH MAY BE
INSPECTED AT THE PRINCIPAL OFFICE OF THE CORPORATION ISSUING SUCH
SHARES, ALL OF THE PROVISIONS OF WHICH ARE INCORPORATED HEREIN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR LAWS.
Section 5.11. - S CORPORATION COVENANT
The Optionee acknowledges that the Company is an "S corporation" within the
meaning of Section 1361(a) of the Code and the Optionee hereby agrees to consent
to the Company's election to be taxable as an S corporation at such time and in
such form as may be required by the Company.
Section 5.12. - COUNTERPARTS
This Agreement may be executed simultaneously in one or more counterparts,
any one of which need not contain the signature of more than one party, but all
such counterparts taken together will constitute one and the same agreement.
(signature page follows)
9
<PAGE> 10
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
SENN-DELANEY LEADERSHIP CONSULTING
U.K., LTD.
By:________________________________
Name:
Title:
___________________________
[Optionee's name]
___________________________
(Optionee's signature)
Optionee's Address:
___________________________
___________________________
___________________________
Optionee's Taxpayer
Identification Number:
___________________________
10
<PAGE> 1
EXHIBIT 4.4
ROLL-OVER STOCK OPTION ASSUMPTION AGREEMENT
This Assumption Agreement is executed as of the 14th day of December 1999
by PROVANT, Inc. (the "PROVANT").
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in that certain Agreement and Plan of Merger dated as
of December 14, 1999, by and among PROVANT, a Delaware corporation, SDL
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
PROVANT ("Acquisition"), Senn-Delaney Leadership Consulting Group, Inc., a
California corporation ("Senn-Delaney"), Senn-Delaney Leadership Consulting
U.K., Ltd., a California corporation ("Senn-Delaney UK"), the shareholders of
Senn-Delaney and Senn-Delaney UK, Larry E. Senn, John Childress and Paul Nakai
(the "Merger Agreement"). In the event of any conflict between any term or
condition of this Assumption Agreement and the Merger Agreement, the terms and
conditions of the Merger Agreement shall be controlling.
Pursuant to the terms of the Merger Agreement, PROVANT hereby assumes
unexercised options to purchase an aggregate of 182,100 shares of common stock,
par value $.01 per share, of Senn-Delaney (the "Senn-Delaney Options") and
unexercised options to purchase an aggregate of 1,498 shares of common stock of
Senn-Delaney UK (the "Senn-Delaney UK Options"). Each Senn-Delaney Option and
Senn-Delaney UK Option continues in effect on the same terms and conditions as
in effect immediately prior to the Mergers, except that (i) the Senn-Delaney
Options have been converted into options to purchase, in the aggregate, that
number of whole shares of PROVANT Common Stock that is equal to 182,100 times
1.925357, with an exercise price per share equal to the exercise price per share
of the respective Senn-Delaney Option divided by 1.925357 and (ii) the
Senn-Delaney UK Options have been converted automatically upon the effective
time of the Mergers into options to purchase, in the aggregate, that number of
shares of whole shares of PROVANT Common Stock that is equal to 1,498 times
1.070627, with an exercise price per share equal to the exercise price per share
of the respective Senn-Delaney UK Option divided by 1.070627.
Pursuant to the terms of each of the agreements representing the
Senn-Delaney Options (the Senn-Delaney Option Agreements") and the Senn-Delaney
UK Options (the "Senn-Delaney UK Option Agreements"), each of the Senn-Delaney
Options became exercisable in full upon the effective time of the Mergers and
shall remain exercisable until such options become unexercisable pursuant to the
terms of the Senn-Delaney Option Agreements and each of the Senn-Delaney UK
Options are exercisable and shall remain exercisable following the Mergers until
such options become unexercisable pursuant to the terms of the Senn-Delaney UK
Option Agreements.
<PAGE> 2
Executed as a sealed instrument as of the day and year first above written.
PROVANT, INC.
By: /s/ Rajiv Bhatt
-------------------------------
Name: Rajiv Bhatt
Title: Executive Vice President
<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
May 16, 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)
225,000 shares of the Company's common stock, $.01 par value per share (the
"Common Stock"), issuable pursuant to the Stock Option Agreement dated as of
October 8, 1999 between the Company and Curtis M. Uehlein (the "Uehlein
Agreement"), (ii) 350,608 shares of the Company's Common Stock issuable pursuant
to certain Stock Option Agreements between Senn-Delaney Leadership Consulting
Group, Inc. ("SDLCG") and certain employees of SDLCG that were assumed by the
Company in connection with its acquisition of SDLCG on December 14, 1999 (the
"SDLCG Agreements"), (iii) 1,604 shares of the Company's Common Stock issuable
pursuant to certain Stock Option Agreements between Senn-Delaney Leadership
Consulting U.K., Ltd. ("SDLCUK") and certain employees of SDLCUK that were
assumed by the Company in connection with its acquisition of SDLCUK on December
14, 1999 (the "SDLCUK Agreements", and together with the Uehlein Agreement and
the SDLCG Agreements, the "Stock Option Agreements") and (iv) an indeterminate
number of shares of such Common Stock that may be issued or become issuable
under the Stock Option Agreements by reason of stock dividends, stock splits or
other recapitalizations executed hereafter.
We have acted as legal counsel for the Company in connection with the
preparation, execution and delivery of the Uelhein Agreement and with the
assumption of the SDLCG Agreements and the SDLCUK Agreements, 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 Stock
Option Agreements, 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
<PAGE> 2
such issuances, the 577,212 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 Stock Option Agreements by reason of stock dividends,
stock splits or other recapitalizations hereafter executed, if and when issued
in accordance with the terms of the Stock Option Agreements 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
<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
