As filed with the Securities and Exchange Commission on May 22, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DIVERSIFIED CORPORATE RESOURCES, INC.
(Exact name of registrant as specified in its charter)
TEXAS 75-1565578
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
12801 N. CENTRAL EXPRESSWAY, SUITE 350
DALLAS, TEXAS 75243
(Address of principal executive offices) (Zip Code)
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DIVERSIFIED CORPORATE RESOURCES, INC. AMENDED AND
RESTATED 1996 NONQUALIFIED STOCK OPTION PLAN
STOCK OPTION AGREEMENT FOR DONALD A. BAILEY
STOCK OPTION AGREEMENT FOR M. TED DILLARD
STOCK OPTION AGREEMENT FOR J. MICHAEL MOORE
(Full title of the plans)
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M. TED DILLARD COPY TO:
PRESIDENT AND PRINCIPAL FINANCIAL OFFICER MARK D. WIGDER, ESQ.
DIVERSIFIED CORPORATE RESOURCES, INC. JENKENS & GILCHRIST,
12801 N. CENTRAL EXPRESSWAY SUITE 350 A PROFESSIONAL CORPORATION
DALLAS, TEXAS 75243 1445 ROSS AVENUE, SUITE 3200
(972) 458-8500 DALLAS, TEXAS 75202
(Name, address and telephone number
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER SHARE(3)(4) OFFERING PRICE(3)(4) FEE(4)
- -------------------------------------------- ------------------------ ---------------------- ------------------------ --------------
<S> <C> <C> <C> <C>
Common Stock, $0.10 par value per share 600,000 Shares $8.00 $2,016,000 $611
============================================ ======================== ====================== ======================== ==============
</TABLE>
(1) The securities to be registered consist of 450,000 shares reserved
for issuance under the Diversified Corporate Resources, Inc. Amended and
Restated 1996 Nonqualified Stock Option Plan and an aggregate of 150,000 shares
reserved for issuance under the individual stock option agreements listed above
(collectively, the "Plans").
(2) Pursuant to Rule 416, this Registration Statement is deemed to
include additional shares of Common Stock issuable under the terms of the Plans
to prevent dilution resulting from any future stock split, stock dividend or
similar transaction.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price
per share of the Common Stock offered hereunder pursuant to the Plans is based
on (i) 130,000 shares of Common Stock reserved for issuance under the Plans, but
not subject to outstanding stock options, at a price per share of $5.00, which
is the average of the high and low prices reported by a market maker in the
Common Stock as of April 30, 1997, which is the last day on which shares of the
Common Stock traded, and (ii) the following shares of Common Stock reserved for
issuance under the Plans and subject to options already granted thereunder at
the following exercise prices:
Number of Shares
of Common Stock Exercise Price
Reserved for Issuance Per Share
--------------------- --------------
150,000 $ .50
130,000 $2.50
20,000 $3.00
98,000 $4.00
20,000 $5.00
52,000 $8.00 (5)
(5) Price per share of options is the lesser of $8.00 or the price per
share at which shares of Common Stock are sold to the public in 1997 or 1998 if
the registrant effectuates a public sale of its Common Stock in 1997 or 1998
using an investment banking firm selected by the Board of Directors (in the
event of multiple sales to the public during 1997 and 1998, the price per share
of the initial sale shall be applicable).
CORPDAL:64543.5 28722-00003
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 31, 1996;
(2) the registrant's amendment on Form 10-K/A to its Annual
Report on Form 10-K filed with the Commission for the fiscal year ended
December 31, 1996;
(3) the description of the Common Stock, par value $0.10 per
share, of the registrant (the "Common Stock") set forth in the
Registration Statement on Form 8-A filed with the Commission on
November 2, 1985, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
- --------
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
CORPDAL:64543.5 28722-00003
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the registrant provide that the registrant may indemnify
officers and directors, and may indemnify its other employees and agents, to the
fullest extent permitted by law. The laws of the State of Texas permit, and in
some cases require, corporations to indemnify officers, directors, agents and
employees who are or have been a party to or are threatened to be made a party
to litigation against judgments, fines, settlements and reasonable expenses
under certain circumstances.
The registrant has also adopted provisions in its Articles of
Incorporation that limit the liability of its directors to the fullest extent
permitted by the laws of the State of Texas. Under the registrant's Articles of
Incorporation, and as permitted by the laws of the State of Texas, a director is
not liable to the registrant or its shareholders for damages for breach of
fiduciary duty. Such limitation of liability does not affect liability for (i)
breach of the director's duty of loyalty to the corporation or its shareholders,
(ii) acts or omissions not in good faith that constitute a breach of duty of the
director to the corporation or acts or omissions which involve intentional
misconduct or a knowing violation of the law, (iii) any transaction from which
the director derived an improper benefit, or (iv) the payment of any unlawful
distribution
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this Registration Statement.
Exhibit Description of Exhibit
------- ----------------------
4.1* Articles of Incorporation of the registrant (Exhibit 3(a))
4.2* Bylaws of the registrant (Exhibit 3(b))
4.3 Diversified Corporate Resources, Inc. Amended and Restated 1996
Nonqualified Stock Option Plan
4.4**Stock Option Agreement by and between the registrant and Donald A.
Bailey, executed December 1, 1995 (Exhibit 10(z)(vi))
4.5**Stock Option Agreement by and between the registrant and M. Ted
Dillard, executed December 1, 1995 (Exhibit 10(z)(v))
4.6**Stock Option Agreement by and between the registrant and J. Michael
Moore, executed December 1, 1995 (Exhibit 10(z)(iv))
4.7 Amended and Restated Stock Option Agreement by and between the
registrant and Donald A. Bailey, executed as of May 15, 1997 to be
effective as of December 27, 1996
4.8 Amended and Restated Stock Option Agreement by and between the
registrant and M. Ted Dillard, executed as of May 15, 1997 to be
effective as of December 27, 1996
CORPDAL:64543.5 28722-00003
II-2
<PAGE>
4.9 Amended and Restated Stock Option Agreement by and between the
registrant and Samuel E. Hunter, executed as of May 15, 1997 to be
effective as of December 27, 1996
4.10 Amended and Restated Stock Option Agreement by and between the
registrant and J. Michael Moore, executed as of May 15, 1997 to be
effective as of December 27, 1996
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation (included
in their opinion filed as Exhibit 5.1 hereto)
23.2 Consent of Weaver and Tidwell, L.L.P.
24.1 Power of Attorney (see signature page of this Registration Statement)
- --------------------
* Filed as the exhibit shown in parenthesis contained in the
registrant's Registration Statement on Form S-18 (No. 33-760 FW) filed
with the Commission on November 21, 1985, incorporated herein by
reference.
** Filed as the exhibit shown in parenthesis contained in the
registrant's Form 10-K filed for the year ended December 31, 1995 and
incorporated herein by reference.
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 this Registration Statement or
any material change to such information in this 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; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes 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 this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. 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 foregoing provisions, or otherwise,
CORPDAL:64543.5 28722-00003
II-3
<PAGE>
the registrant has been advised that in the opinion of the 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 controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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.
CORPDAL:64543.5 28722-00003
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, Texas, on May 15, 1997:
DIVERSIFIED CORPORATE RESOURCES, INC.
By: /s/ M. Ted Dillard
-------------------
M. Ted Dillard,
President and Principal Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints M. Ted Dillard, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ J. Michael Moore Chairman of the Board and May 15, 1997
- ----------------------- Chief Executive Officer
J. Michael Moore
/s/ M. Ted Dillard President, Principal Financial May 15, 1997
- --------------------- Officer and Director
M. Ted Dillard
/s/ Donald A. Bailey Director May 15, 1997
- -----------------------
Donald A. Bailey
/s/ Samuel E. Hunter Director May 15, 1997
- -----------------------
Samuel E. Hunter
CORPDAL:64543.5 28722-00003
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page
Number Document Description Number
------- -------------------- ----------
4.1* Articles of Incorporation of the registrant (Exhibit 3(a))
4.2* Bylaws of the registrant (Exhibit 3(b))
4.3 Diversified Corporate Resources, Inc. Amended and Restated 1996
Nonqualified Stock Option Plan
4.4**Stock Option Agreement by and between the registrant and Donald
A. Bailey, executed December 1, 1995 (Exhibit 10(z)(vi))
4.5**Stock Option Agreement by and between the registrant and M. Ted
Dillard, executed December 1, 1995 (Exhibit 10(z)(v))
4.6**Stock Option Agreement by and between the registrant and J.
Michael Moore, executed December 1, 1995 (Exhibit 10(z)(iv))
4.7 Amended and Restated Stock Option Agreement by and between the
registrant and Donald A. Bailey, executed as of May 15, 1997 to
be effective as of December 27, 1996
4.8 Amended and Restated Stock Option Agreement by and between the
registrant and M. Ted Dillard, executed as of May 15, 1997 to be
effective as of December 27, 1996
4.9 Amended and Restated Stock Option Agreement by and between the
registrant and Samuel E. Hunter, executed as of May 15, 1997 to
be effective as of December 27, 1996
4.10 Amended and Restated Stock Option Agreement by and between the
registrant and J. Michael Moore, executed as of May 15, 1997 to
be effective as of December 27, 1996
5.1 Opinion of Jenkens & Gilchrist, P.C.
23.1 Consent of Jenkens & Gilchrist, P.C. (included in their opinion
filed as Exhibit 5.1 hereto)
23.2 Consent of Weaver and Tidwell, L.L.P.
24.1 Power of Attorney (see signature page of this Registration
Statement)
- --------------------
* Filed as the exhibit shown in parenthesis contained in the
registrant's Registration Statement on Form S-18 (No. 33-760 FW)
filed with the Commission, incorporated herein by reference.
** Filed as the exhibit shown in parenthesis contained in the
registrant's Form 10-K for the year ended December 31, 1995 and
incorporated herein by reference.
CORPDAL:64543.5 28722-00003
EXHIBIT 4.3
CORPDAL:64543.5 28722-00003
<PAGE>
DIVERSIFIED CORPORATE RESOURCES, INC.
AMENDED AND RESTATED 1996 NONQUALIFIED STOCK OPTION PLAN
ARTICLE I. GENERAL PURPOSE OF PLAN
The name of this plan is the Amended and Restated 1996 Nonqualified
Stock Option Plan (the "Plan") of Diversified Corporate Resources, Inc., a Texas
corporation (the "Company"), which amends and restates the Diversified Corporate
Resources, Inc. 1996 Nonqualified Stock Option Plan in its entirety. The purpose
of the Plan is to enable the Company, to obtain and retain the services of the
types of employees, officers and directors who will contribute to the Company's
long range success and to provide incentives which are linked directly to
increases in share value which will inure to the benefit of all shareholders of
the Company.
ARTICLE II. DEFINITIONS
For purposes of the Plan, the following terms shall be defined as set
forth below:
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor thereto.
"COMMITTEE" means the Compensation Committee of the Company or, in the
absence of a Compensation Committee, a committee composed of one or more
officers of the Company as selected from time to time by the Board of Directors
of the Company.
"COMPANY" means Diversified Corporate Resources, Inc. (or any successor
business entity) and all of its subsidiaries.
"DATE OF GRANT" means the date on which the Board of Directors adopts a
resolution expressly granting a Stock Option to a Participant.
"ELIGIBLE PERSON" means any person who is a key employee (including
officers) of the Company or entity which is the parent of, or a subsidiary of,
the Company, or a director of the Company.
"EXERCISE PRICE" means the price at which the Shares subject to a Stock
Option may be purchased.
"PARTICIPANT" means any Eligible Person selected by the Board of
Directors to receive grants of Stock Options.
"PLAN" means the Company's Amended and Restated 1996 Nonqualified Stock
Option Plan.
CORPDAL:65618.2 28722-00003
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<PAGE>
"RETIREMENT" means retirement from active employment with the Company,
or any parent or subsidiary of the Company.
"SHARES" means shares of Common Stock of the Company.
"STOCK OPTION" means any option to purchase Shares granted pursuant to
the Plan.
ARTICLE III. ADMINISTRATION
SECTION 3.1 THE ADMINISTRATOR.
a. The Plan shall be administered by the Committee.
b. Only the Committee shall have the power and authority to grant
Stock Options to Eligible Persons, pursuant to the terms of the Plan.
The Committee shall determine (i) those Eligible Persons to whom Stock
Options are to be granted, (ii) the number of Shares to be made
subject to each Stock Option, and (iii) the terms and conditions of
each Stock Option, including, without limitation, the exercise price
and the medium of payment.
c. All decisions made by the Committee pursuant to the provisions
of the Plan shall be final and binding on the Company and the
Participants.
ARTICLE IV. SHARES SUBJECT TO THE PLAN
SECTION 4.1 SHARES SUBJECT TO THE PLAN. Subject to adjustment as herein
provided, the total number of Shares reserved and available for issuance under
the Plan shall be 450,000 Shares which shall consist, in whole or in part, of
authorized and unissued shares of Common Stock of the Company.
SECTION 4.2 UNEXERCISED SHARE OPTIONS. To the extent that any Stock
Options expire or are otherwise terminated without being exercised, the Shares
underlying such Stock Options shall again be available for issuance in
connection with future Stock Options granted under the Plan.
ARTICLE V. ELIGIBILITY
All persons who are Eligible Persons shall be eligible to be granted
Stock Options hereunder subject to the limitations set forth in this Plan.
ARTICLE VI. STOCK OPTIONS
SECTION 6.1 GENERAL. The Plan provides for the grant of Stock Options
to Eligible Persons selected by the Committee for participation in the Plan.
Each grant of Stock Options pursuant to the Plan shall be evidenced by a Stock
Option agreement between the Participant and the Company in the form from time
to time adopted by the Committee and containing such terms
CORPDAL:65618.2 28722-00003
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<PAGE>
and conditions which the Committee deems appropriate. The provisions of the
various Stock Option agreements entered into under the Plan need not be
identical.
SECTION 6.2 TERMS AND CONDITIONS OF THE STOCK OPTIONS. Each Stock
Option granted pursuant to the Plan shall be evidenced by a written Stock Option
agreement between the Company and the Participant, which agreement shall comply
with and be subject to the following terms and conditions:
a. NUMBER OF SHARES. Each Stock Option agreement shall state the
number of Shares which may be purchased upon exercise of the Stock
Option.
b. EXERCISE PRICE. Each Stock Option agreement shall state the
Exercise Price.
c. MEDIUM AND TIME OF PAYMENT. To the extent permitted under the
Texas law, as currently in effect, the Exercise Price shall be paid in
full, at the time of exercise, in cash or, with the approval of the
Committee, in Shares which have a fair market value equal to the
Exercise Price or in a combination of cash and such Shares.
d. RESTRICTIONS ON TRANSFER OF SHARES. Each Stock Option
agreement may contain such restrictions on the transfer of Shares sold
under the Plan as the Committee may determine, including, without
limitation, rights of repurchase and rights of first refusal.
e. TERM AND EXERCISE OF STOCK OPTION. Stock Options shall be
exercisable over the exercise period at the times the Committee may
determine, as reflected in the related Stock Option agreements. The
exercise period of any Stock Option shall not exceed ten (10) years
from the Date of Grant. The exercise period shall be subject to
earlier termination as provided in this Plan. A Stock Option may be
exercised, as to any or all full Shares as to which the Stock Option
has become exercisable, by giving written notice of such exercise to
the Company.
ARTICLE VII. ADJUSTMENTS
SECTION 7.1 EFFECT OF CERTAIN CHANGES.
a. If there is any change in the number of Shares outstanding
through the distribution of Shares or through a recapitalization
resulting in Share splits or combinations or exchanges of the Shares
outstanding, (i) the number of Shares covered by Stock Options
outstanding; (ii) the number of Shares reserved and available for
issuance under the Plan; and (iii) the Exercise Price in effect prior
to such change shall be proportionately adjusted by the Committee to
reflect any increase or decrease in the number of Shares issued;
provided, that any fractional Shares resulting from the adjustment
shall be eliminated.
b. In the event of the proposed dissolution or liquidation of the
Company, or in the event of any corporate separation or division,
including, but not limited to, a split-up, split-off or spin-off
(each, a "liquidating event"), the Committee may provide that the
holder of any Stock Option then exercisable shall have the right to
exercise such Stock Option subsequent to the liquidating event, at the
price provided in the Stock Option agreement, for the total number of
Shares to which the Stock Option relates (less the number of Shares,
if any, previously purchased pursuant to the Plan), and for the
balance of its term, solely for the kind and amount of shares of stock
and other securities, property, cash or any combination thereof
receivable upon such liquidating event by a holder of the number of
Shares for or with respect to which such Stock Option might have been
exercised immediately prior to such liquidating event; or the
Committee may provide, in the alternative, that each Stock Option
granted under the Plan shall terminate as of a date to be fixed by the
Committee; provided, that not less than thirty (30) days written
notice of the date so fixed shall be given to each Participant and if
such notice is given, each Participant shall have the right, during
the period of thirty (30) days preceding such termination, to exercise
the Stock Option as to all or any part of the Shares covered thereby,
on the condition, however, that the liquidating event actually occurs;
and if the liquidating event actually occurs, such exercise shall be
deemed effective (and, if applicable, the Participant shall be deemed
a shareholder with respect to Stock Options exercised immediately
preceding the occurrence of the liquidating event) on the date of
record for shareholders entitled to share in such liquidating event,
if a record date is set.
c. Each Stock Option outstanding shall terminate upon (i) a
merger or consolidation in which the Company is not the surviving
entity, or (ii) a sale or transfer of all or substantially all of the
capital stock or assets of the Company to any entity or person that is
not a parent or subsidiary and the Company is not the surviving entity
((i) and (ii) shall be collectively referred to as a "Change of
Control") provided that (A) each Participant to whom no Stock Options
have been tendered by the surviving entity pursuant to the terms of
item (B) immediately below shall have the right, exercisable during a
ten-day period ending on the fifth business day prior to such Change
of Control in which the Company is not the surviving entity, to
exercise his or her Stock Option in whole or in part with respect to
the total number of Shares to which the Stock Option relates (less the
number of Shares, if any, previously purchased pursuant to the Plan),
on the condition, however, that the Change of Control is actually
effected; and if the Change of Control is actually effected, such
exercise shall be deemed effective (and, if applicable, the
Participant shall be deemed a shareholder with respect to the Stock
Option exercised) immediately preceding the effective time of such
Change of Control (on the date of record for shareholders entitled to
share in the securities or property distributed in such Change of
Control, if a record date is set); and (B) in its sole and absolute
discretion, the surviving entity may, but shall not be obligated to,
tender to any Participant share options with respect to the surviving
entity, and such new share options shall contain such terms and
provisions as shall substantially preserve the rights and benefits of
any Stock Options then outstanding under the Plan. Notwithstanding the
foregoing, in the event of a Change of Control in which the Company is
not the surviving entity, the Committee shall have the right in its
sole discretion to pay to each Participant possessing unexercised
Stock Options, as soon as practicable following consummation of such
Change of Control, an amount equal to the fair market value of all
Shares purchasable (without regard to vesting
CORPDAL:65618.2 28722-00003
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<PAGE>
provisions) under the unexercised Stock Options less the Exercise
Price of such unexercised Stock Options (the "Net Value").
If the Committee elects to pay each Participant the Net Value
rather than grant the Participants the rights described in this
Section 7.1(c), the Participants shall not be entitled to prior notice
of such Change of Control. Upon payment of the Net Value, all Stock
Options outstanding under this Plan shall be null and void and the
Participants shall have no further rights thereunder. The Company
shall have the right to withhold all applicable taxes from the Net
Value prior to making payment to the Participants.
d. Section 7.1(c) shall not apply to a Change of Control in which
the Company is the surviving entity.
e. The determination as to which party to a Change of Control is
the "surviving entity" shall be made by the Board of Directors.
f. In the event of a change in the Shares of the Company as
presently constituted which is limited to a change of all of its
authorized shares with par value into the same number of shares
without par value, or a change in the par value, the shares resulting
from any such change shall be "Shares" within the meaning of the Plan.
g. To the extent that the foregoing adjustments relate to shares
or securities of the Company, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding
and conclusive.
h. Except as hereinbefore expressly provided in this Article VII,
no Participant shall have any rights by reason of any subdivision or
consolidation of Shares or the payment of any dividend or any other
increase or decrease in the number of Shares of any class or by reason
of any liquidating event, Change of Control of assets or equity
securities of another equity, or any other issue by the Company of
shares of any class, or securities convertible into shares of any
class; and except as provided in this Article VII, none of the
foregoing events shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of Shares subject
to Stock Options. The grant of a Stock Option pursuant to the Plan
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its
capital or business structures or to effect a Change of Control or to
dissolve, liquidate or sell, or transfer all of part of its business
or assets.
i. Except as specifically provided in this Article VII, a
Participant or a transferee of a Stock Option shall have no rights as
a shareholder with respect to any Shares covered by the Stock Options
until the date of the issuance of a Share certificate to him or her
for such Shares, and no adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other
property) or distributions of other rights for which the record date
is prior to the date such Share certificate is issued, except as
herein provided.
CORPDAL:65618.2 28722-00003
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ARTICLE VIII. AMENDMENT AND TERMINATION
The Board of Directors may amend, alter or discontinue the Plan, but no
amendment, alteration or discontinuance shall be made which would impair the
rights of the Participant under any Stock Option theretofore granted without
such Participant's consent, or which without the approval of the shareholders
would (a) except as provided in Article VII, materially increase the total
number of Shares reserved for the purposes of the Plan, (b) materially increase
the benefits accruing to Participants or Eligible Persons under the Plan, or (c)
materially modify the requirements for eligibility under the Plan.
The Board of Directors may amend the terms of any award theretofore
granted, prospectively or retroactively, but, subject to the terms of the Plan,
no such amendment shall impair the rights of any holder without his or her
consent.
ARTICLE IX. GENERAL PROVISIONS
SECTION 9.1 GENERAL PROVISIONS.
a. The Committee may require each person purchasing Shares
pursuant to the Plan to represent to and agree with the Company in
writing that such person is acquiring the Shares without a view to
distribution thereof. The certificates for such Shares may include any
legend which the Committee deems appropriate to reflect any
restrictions on transfer.
b. All certificates for Shares delivered under the Plan shall
be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable.
SECTION 9.2 OTHER COMPENSATION ARRANGEMENTS. Nothing contained in this
Plan shall prevent the Company from adopting other or additional compensation
arrangements, subject to shareholder approval if such approval is required; and
such arrangements may be either generally applicable or applicable only in
specific areas.
SECTION 9.3 TERMINATION OF EMPLOYMENT. Except as herein provided or in
any Stock Option agreement, no Stock Option may be exercised unless the
Participant is then in the employ of the Company, or any parent or any
subsidiary of the Company, and unless he or she has remained continuously so
employed since the Date of Grant. If the employment or services of a Participant
shall terminate, unless otherwise provided in the Stock Option agreement, all
Stock Options previously granted to the Participant shall terminate on the date
notice is given or received regarding such termination. Nothing in the Plan or
in any Stock Option granted pursuant to the Plan shall confer upon an employee
any right to continue in the employ of the Company, or any parent or any
subsidiary of the Company, or interfere in any way with the right of the Company
to terminate such employment at any time.
SECTION 9.4 NONTRANSFERABILITY OF STOCK OPTIONS. Stock Options granted
under the Plan shall not be transferable otherwise than by will or by the laws
of descent and distribution, and
CORPDAL:65618.2 28722-00003
5
<PAGE>
Stock Options may be exercised, during the lifetime of the Participant, only by
the Participant or by his or her guardian or legal representative.
SECTION 9.5 REGULATORY MATTERS. Each Stock Option agreement shall
provide that no Shares shall be purchased or sold thereunder unless and until
(a) any then applicable requirements of state or federal laws and regulatory
agencies shall have been fully complied with to the satisfaction of the Company
and its counsel, and (b) if required to do so by the Company, the Participant
shall have executed and delivered to the Company a letter of investment intent
in such form and containing such provisions as the Committee may require.
SECTION 9.6 DELIVERY. Upon exercise of a Stock Option granted under
this Plan, the Company shall issue a Share certificate on the date of exercise,
which will be delivered to the Participant exercising the Stock Option as
promptly as practicable thereafter.
SECTION 9.7 OTHER PROVISIONS. The Stock Option agreements authorized
under the Plan may contain such other provisions not inconsistent with the Plan,
including, without limitation, restrictions upon the exercise of the Stock
Option, as the Board of Directors may deem advisable.
ARTICLE X. EFFECTIVE DATE OF THE PLAN
The Plan became effective as of December 27, 1996, the date as of which
the Plan was adopted by the Board of Directors.
ARTICLE XI. TERM OF THE PLAN
No Stock Option shall be granted pursuant to the Plan after December
27, 2006 but Stock Options theretofore granted may extend beyond that date.
CORPDAL:65618.2 28722-00003
6
EXHIBIT 4.7
CORPDAL:64543.5 28722-00003
<PAGE>
AMENDED AND RESTATED STOCK OPTION AGREEMENT RE: BAILEY
THIS AGREEMENT is executed by Diversified Corporate Resources, Inc., a
Texas corporation (herein called "Company"), and Donald A. Bailey (herein called
"Optionee") on the date set forth on the signature page hereof, but effective as
of December 27, 1996.
WHEREAS, the Optionee is an officer and director of the Company; and
WHEREAS, the Company considers it desirable and in its best interests
that Optionee be
given an opportunity to acquire an equity interest in the Company in the form of
an option to purchase shares of common stock of the Company (the "Common
Stock"); and
WHEREAS, the options covered by this Agreement are issued pursuant to
the Company's 1996 Nonqualified Stock Option Plan (the "Plan").
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
1. GRANT OF OPTION. The Company shall and does hereby grant to Optionee
the right, privilege and option to purchase 30,000 shares (the "Shares") of
Common Stock for the prices per share in the manner and subject to the
conditions hereinafter provided.
2. TIME OF EXERCISE AND PRICES OF OPTION. Subject to the terms hereof,
the option herein granted must be exercised in whole or in part at any time or
times prior to December 31, 2001. The option herein granted shall become
exercisable as to 2,500 shares of Common Stock if the Optionee is a director of
the Company on the last day of each calendar quarter (which shall end during the
months of March, June, September and December) during the years 1997, 1998 and
1999 (example: if the Optionee is a director of the Company on March 31, 1997,
he will become vested, and entitled to exercise, as to options for 2,500 shares
of Common
CORPDAL:65621.2 28722-00003
1
<PAGE>
Stock). The exercise price for shares to which Optionee shall become vested in
1997, 1998 and 1999 shall be $3.00 per share, $4.00 per share and $5.00 per
share, respectively. The parties hereto acknowledge and agree that (a) the
requirement that vesting is contingent upon the Optionee being a director of the
Company is applicable regardless of the reason that the Optionee may cease to be
a director of the Company, and (b) subject to the restrictions herein as to when
the option is exercisable, the Optionee shall have the right to select the
portion of the option, and the related option price, if and when the Optionee
exercises any of this option.
3. METHOD OF EXERCISE. (a) In order to exercise this option, in whole
or in part, the Optionee shall deliver to the Company at its principal place of
business, or at such other offices as shall be designated by the Company (i) a
written notice of such holder's election to exercise this option, which notice
shall specify the number of shares of Common Stock to be purchased pursuant to
such exercise and (ii) either (A) cash or a check payable to the order of the
Company, (B) notice that the exercise price is satisfied by reduction of the
number of shares to be received by holder upon exercise of this option as
provided in Section (b) below, with the amount of such reduction specified in
such notice, (C) shares of Common Stock having a fair market value equal to the
exercise price, or (D) a combination of the above. The Company shall undertake
to make prompt delivery of the stock certificate(s) evidencing such part of the
Shares, provided that if any law or regulation requires the Company to take any
action with respect to the Shares specified in such notice before the issuance
thereof, then the date of delivery of such Shares shall be extended for the
period necessary to take such action.
(b) At the option of the Optionee, the Optionee may exercise
this option without a cash payment of the exercise price by designating that the
number of shares of Common Stock
CORPDAL:65621.2 28722-00003
2
<PAGE>
issuable to Optionee upon such exercise shall be reduced by the number of shares
having a fair market value equal to the amount of the total exercise price for
such exercise. In such instance, no cash or other consideration will be paid by
the holder in connection with such exercise and no commission or other
remuneration will be paid or given by the Optionee or the Company in connection
with such exercise.
4. TERMINATION OF OPTION. To the extent not theretofore exercised, the
option herein granted shall terminate on the earlier of (a) December 31, 2001,
(b) six (6) months from the date on which Optionee ceases to be a director of
the Company for any reason other than death or disability of the Optionee, and
(c) one (1) year from the date on which Optionee ceases to be a director of the
Company if such event is due to death or disability of the Optionee.
5. RECLASSIFICATION, CONSOLIDATION, OR MERGER. If and to the extent
that the number of shares of Common Stock of the Company shall be increased or
reduced by change in par value, split-up, reclassification, distribution of a
dividend payable in stock, or the like, the number of shares of Common Stock
subject to the option herein granted, and the option price therefor shall be
appropriately adjusted. If the Company merges with one or more entities in a
transaction in which the Company is not the surviving entity, (a) this option
shall thereafter apply to shares of stock of the surviving entity issuable to
the holders of Common Stock, and (b) the number of shares of stock subject to
option and the option price(s) therefor shall be appropriately adjusted in a
manner consistent with the terms and conditions of the aforesaid merger.
6. RIGHTS PRIOR TO EXERCISE OF OPTION. The option herein granted is
nontransferable by Optionee except as herein otherwise provided. Unless the
Optionee is deceased
CORPDAL:65621.2 28722-00003
3
<PAGE>
or disabled, with the determination of the existence or nonexistence of such
disability such disability left to the reasonable discretion of the Board of
Directors of the Company, the option herein may only be exercised by the
Optionee. If the Optionee dies during the period of time that all or any of part
of this option is exercisable, the Optionee's executor or legal representative
may exercise all or any part of this option at any time or times during the
period of time in which the option herein is granted. If the Optionee is
disabled, as aforesaid, the Optionee's legal representative shall have the right
to exercise all or any part of this option at any time or times during the
period of time in which the Optionee is disabled and the option herein granted
has not expired by the terms of this Agreement. With respect to the shares of
stock which are subject to the option herein granted, Optionee shall have no
rights as a stockholder until payment of the option price for the shares being
purchased by exercise of the option herein granted, and the issuance of the
shares involved.
7. BINDING EFFECT.This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and assigns.
8. MULTIPLE ORIGINALS. This Agreement may be executed in multiple
counterparts with each counterpart constituting an original for all purposes.
9. TOTAL AGREEMENT. This Agreement may not be amended or revised except
by a written instrument executed by both of the parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the 15th day of May, 1997.
CORPDAL:65621.2 28722-00003
4
<PAGE>
DIVERSIFIED CORPORATE RESOURCES, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
OPTIONEE:____________________________
_____________________________________
Donald A. Bailey
CORPDAL:65621.2 28722-00003
5
EXHIBIT 4.8
CORPDAL:64543.5 28722-00003
<PAGE>
AMENDED AND RESTATED STOCK OPTION AGREEMENT RE: DILLARD
THIS AGREEMENT is executed by Diversified Corporate Resources, Inc., a
Texas corporation (herein called "Company"), and M. Ted Dillard (herein called
"Optionee") on the date set forth on the signature page hereof, but effective as
of December 27, 1996.
WHEREAS, the Optionee is an officer and director of the Company; and
WHEREAS, the Company considers it desirable and in its best interests
that Optionee be
given an opportunity to acquire an equity interest in the Company in the form of
an option to purchase shares of common stock of the Company (the "Common
Stock"); and
WHEREAS, the options covered by this Agreement are issued pursuant to
the Company's 1996 Nonqualified Stock Option Plan (the "Plan").
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
1. GRANT OF OPTION. The Company shall and does hereby grant to
Optionee the right, privilege and option to purchase 105,000 shares (the
"Shares") of Common Stock for the prices per share in the manner and subject to
the conditions hereinafter provided.
2. TIME OF EXERCISE AND PRICES OF OPTION. Subject to the terms hereof,
the option herein granted must be exercised in whole or in part at any time or
times prior to December 31, 2001. The option herein granted (a) shall be
immediately exercisable as to 52,500 shares of Common Stock, the exercise price
of this portion of the option shall be $2.50 per share of Common Stock, (b)
shall become exercisable as to an additional 31,500 shares of Common Stock if
the Optionee is still an officer or director of the Company on December 31,
1997; the exercise price of this portion of the option shall be $4.00 per share,
and (c) shall become
CORPDAL:65623.2 28722-00003
1
<PAGE>
exercisable as to the balance of 21,000 shares of Common Stock if the Optionee
is still an officer and director of the Company on December 31, 1998; the
exercise price of this portion of the option is the lesser of (i) $8.00 per
share, or (ii) the price per share at which shares of Common Stock are sold to
the public in 1997 or 1998 if with the Company effectuates a public sale of its
Common Stock in 1997 or 1998 using an investment banking firm selected by the
Board of Directors of the Company (in the event of multiple sales to the public
during 1997 and 1998, the price per share of the initial sale shall be
applicable). The parties hereto acknowledge and agree that (A) the requirement
that vesting is contingent upon the Optionee being an officer or director of the
Company is applicable regardless of the reason that the Optionee may cease to be
an officer or director of the Company, and (B) subject to the restrictions
herein as to when the option is exercisable, the Optionee shall have the right
to select the portion of the option, and the related option price, if and when
the Optionee exercises any of this option.
3. METHOD OF EXERCISE. (a) In order to exercise this option, in whole
or in part, the Optionee shall deliver to the Company at its principal place of
business, or at such other offices as shall be designated by the Company (i) a
written notice of such holder's election to exercise this option, which notice
shall specify the number of shares of Common Stock to be purchased pursuant to
such exercise and (ii) either (A) cash or a check payable to the order of the
Company, (B) notice that the exercise price is satisfied by reduction of the
number of shares to be received by holder upon exercise of this option as
provided in Section (b) below, with the amount of such reduction specified in
such notice, (C) shares of Common Stock having a fair market value equal to the
exercise price, or (D) a combination of the above. The Company shall undertake
to make prompt delivery of the stock certificate(s) evidencing such part of the
Shares,
CORPDAL:65623.2 28722-00003
2
<PAGE>
provided that if any law or regulation requires the Company to take any action
with respect to the Shares specified in such notice before the issuance thereof,
then the date of delivery of such Shares shall be extended for the period
necessary to take such action.
(b) At the option of the Optionee, the Optionee may exercise
this option without a cash payment of the exercise price by designating that the
number of shares of Common Stock issuable to Optionee upon such exercise shall
be reduced by the number of shares having a fair market value equal to the
amount of the total exercise price for such exercise. In such instance, no cash
or other consideration will be paid by the holder in connection with such
exercise and no commission or other remuneration will be paid or given by the
Optionee or the Company in connection with such exercise.
4. TERMINATION OF OPTION. To the extent not theretofore exercised, the
option herein granted shall terminate on the earlier of (a) December 31, 2001,
(b) one hundred and eighty (180) days from the date on which Optionee's
employment with the Company is terminated for any reason other than the death or
disability of the Optionee, and (c) one (1) year from the date on which
Optionee's employment with the Company is terminated if such termination is due
to death or disability of the Optionee.
5. RECLASSIFICATION, CONSOLIDATION, OR MERGER. If and to the extent
that the number of shares of Common Stock of the Company shall be increased or
reduced by change in par value, split-up, reclassification, distribution of a
dividend payable in stock, or the like, the number of shares of Common Stock
subject to the option herein granted, and the option price therefor shall be
appropriately adjusted. If the Company merges with one or more entities in a
transaction in which the Company is not the surviving entity, (a) this option
shall thereafter
CORPDAL:65623.2 28722-00003
3
<PAGE>
apply to shares of stock of the surviving entity issuable to the holders of
Common Stock, and (b) the number of shares of stock subject to option and the
option price(s) therefor shall be appropriately adjusted in a manner consistent
with the terms and conditions of the aforesaid merger.
6. RIGHTS PRIOR TO EXERCISE OF OPTION. The option herein granted is
nontransferable by Optionee except as herein otherwise provided. Unless the
Optionee is deceased or disabled, with the determination of the existence or
nonexistence of such disability such disability left to the reasonable
discretion of the Board of Directors of the Company, the option herein may only
be exercised by the Optionee. If the Optionee dies during the period of time
that all or any of part of this option is exercisable, the Optionee's executor
or legal representative may exercise all or any part of this option at any time
or times during the period of time in which the option herein is granted. If the
Optionee is disabled, as aforesaid, the Optionee's legal representative shall
have the right to exercise all or any part of this option at any time or times
during the period of time in which the Optionee is disabled and the option
herein granted has not expired by the terms of this Agreement. With respect to
the shares of stock which are subject to the option herein granted, Optionee
shall have no rights as a stockholder until payment of the option price for the
shares being purchased by exercise of the option herein granted, and the
issuance of the shares involved.
7. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, representatives,
successors and assigns.
8. MULTIPLE ORIGINALS. This Agreement may be executed in multiple
counterparts with each counterpart constituting an original for all purposes.
CORPDAL:65623.2 28722-00003
4
<PAGE>
9. TOTAL AGREEMENT. This Agreement may not be amended or revised except
by a written instrument executed by both of the parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the 15th day of May, 1997.
DIVERSIFIED CORPORATE RESOURCES, INC.
By:_______________________________________
J. Michael Moore, Chairman of the Board
and Chief Executive Officer
OPTIONEE:
__________________________________________
M. Ted Dillard
CORPDAL:65623.2 28722-00003
5
EXHIBIT 4.9
CORPDAL:64543.5 28722-00003
<PAGE>
AMENDED AND RESTATED STOCK OPTION AGREEMENT RE: HUNTER
THIS AGREEMENT is executed by Diversified Corporate Resources, Inc., a
Texas corporation (herein called "Company"), and Samuel E. Hunter (herein called
"Optionee") on the date set forth on the signature page hereof, but effective as
of December 27, 1996.
WHEREAS, the Optionee is an officer and director of the Company; and
WHEREAS, the Company considers it desirable and in its best interests
that Optionee be
given an opportunity to acquire an equity interest in the Company in the form of
an option to purchase shares of common stock of the Company (the "Common
Stock"); and
WHEREAS, the options covered by this Agreement are issued pursuant to
the Company's 1996 Nonqualified Stock Option Plan (the "Plan").
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
1. GRANT OF OPTION. The Company shall and does hereby grant to Optionee
the right, privilege and option to purchase 30,000 shares (the "Shares") of
Common Stock for the prices per share in the manner and subject to the
conditions hereinafter provided.
2. TIME OF EXERCISE AND PRICES OF OPTION. Subject to the terms hereof,
the option herein granted must be exercised in whole or in part at any time or
times prior to December 31, 2001. The option herein granted shall become
exercisable as to 2,500 shares of Common Stock if the Optionee is a director of
the Company on the last day of each calendar quarter (which shall end during the
months of March, June, September and December) during the years 1997, 1998 and
1999 (example: if the Optionee is a director of the Company on March 31, 1997,
he will become vested, and entitled to exercise, as to options for 2,500 shares
of Common
CORPDAL:65619.2 28722-00003
1
<PAGE>
Stock). The exercise price for shares to which Optionee shall become vested in
1997, 1998 and 1999 shall be $3.00 per share, $4.00 per share and $5.00 per
share, respectively. The parties hereto acknowledge and agree that (a) the
requirement that vesting is contingent upon the Optionee being a director of the
Company is applicable regardless of the reason that the Optionee may cease to be
a director of the Company, and (b) subject to the restrictions herein as to when
the option is exercisable, the Optionee shall have the right to select the
portion of the option, and the related option price, if and when the Optionee
exercises any of this option.
3. METHOD OF EXERCISE. (a) In order to exercise this option, in whole
or in part, the Optionee shall deliver to the Company at its principal place of
business, or at such other offices as shall be designated by the Company (i) a
written notice of such holder's election to exercise this option, which notice
shall specify the number of shares of Common Stock to be purchased pursuant to
such exercise and (ii) either (A) cash or a check payable to the order of the
Company, (B) notice that the exercise price is satisfied by reduction of the
number of shares to be received by holder upon exercise of this option as
provided in Section (b) below, with the amount of such reduction specified in
such notice, (C) shares of Common Stock having a fair market value equal to the
exercise price, or (D) a combination of the above. The Company shall undertake
to make prompt delivery of the stock certificate(s) evidencing such part of the
Shares, provided that if any law or regulation requires the Company to take any
action with respect to the Shares specified in such notice before the issuance
thereof, then the date of delivery of such Shares shall be extended for the
period necessary to take such action.
(b) At the option of the Optionee, the Optionee may exercise
this option without a cash payment of the exercise price by designating that the
number of shares of Common Stock
CORPDAL:65619.2 28722-00003
2
<PAGE>
issuable to Optionee upon such exercise shall be reduced by the number of shares
having a fair market value equal to the amount of the total exercise price for
such exercise. In such instance, no cash or other consideration will be paid by
the holder in connection with such exercise and no commission or other
remuneration will be paid or given by the Optionee or the Company in connection
with such exercise.
4. TERMINATION OF OPTION. To the extent not theretofore exercised, the
option herein granted shall terminate on the earlier of (a) December 31, 2001,
(b) six (6) months from the date on which Optionee ceases to be a director of
the Company for any reason other than death or disability of the Optionee, and
(c) one (1) year from the date on which Optionee ceases to be a director of the
Company if such event is due to death or disability of the Optionee.
5. RECLASSIFICATION, CONSOLIDATION, OR MERGER. If and to the extent
that the number of shares of Common Stock of the Company shall be increased or
reduced by change in par value, split-up, reclassification, distribution of a
dividend payable in stock, or the like, the number of shares of Common Stock
subject to the option herein granted, and the option price therefor shall be
appropriately adjusted. If the Company merges with one or more entities in a
transaction in which the Company is not the surviving entity, (a) this option
shall thereafter apply to shares of stock of the surviving entity issuable to
the holders of Common Stock, and (b) the number of shares of stock subject to
option and the option price(s) therefor shall be appropriately adjusted in a
manner consistent with the terms and conditions of the aforesaid merger.
6. RIGHTS PRIOR TO EXERCISE OF OPTION. The option herein granted is
nontransferable by Optionee except as herein otherwise provided. Unless the
Optionee is deceased
CORPDAL:65619.2 28722-00003
3
<PAGE>
or disabled, with the determination of the existence or nonexistence of such
disability such disability left to the reasonable discretion of the Board of
Directors of the Company, the option herein may only be exercised by the
Optionee. If the Optionee dies during the period of time that all or any of part
of this option is exercisable, the Optionee's executor or legal representative
may exercise all or any part of this option at any time or times during the
period of time in which the option herein is granted. If the Optionee is
disabled, as aforesaid, the Optionee's legal representative shall have the right
to exercise all or any part of this option at any time or times during the
period of time in which the Optionee is disabled and the option herein granted
has not expired by the terms of this Agreement. With respect to the shares of
stock which are subject to the option herein granted, Optionee shall have no
rights as a stockholder until payment of the option price for the shares being
purchased by exercise of the option herein granted, and the issuance of the
shares involved.
7. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, representatives,
successors and assigns.
8. MULTIPLE ORIGINALS. This Agreement may be executed in multiple
counterparts with each counterpart constituting an original for all purposes.
9. TOTAL AGREEMENT. This Agreement may not be amended or revised except
by a written instrument executed by both of the parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the 15th day of May, 1997.
CORPDAL:65619.2 28722-00003
4
<PAGE>
DIVERSIFIED CORPORATE RESOURCES, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
OPTIONEE:____________________________
_____________________________________
Samuel E. Hunter
CORPDAL:65619.2 28722-00003
5
EXHIBIT 4.10
CORPDAL:64543.5 28722-00003
<PAGE>
AMENDED AND RESTATED STOCK OPTION AGREEMENT RE: MOORE
THIS AGREEMENT is executed by Diversified Corporate Resources, Inc., a
Texas corporation (herein called "Company"), and J. Michael Moore (herein called
"Optionee") on the date set forth on the signature page hereof, but effective as
of December 27, 1996.
WHEREAS, the Optionee is an officer and director of the Company; and
WHEREAS, the Company considers it desirable and in its best interests
that Optionee be
given an opportunity to acquire an equity interest in the Company in the form of
an option to purchase shares of common stock of the Company (the "Common
Stock"); and
WHEREAS, the options covered by this Agreement are issued pursuant to
the Company's 1996 Nonqualified Stock Option Plan (the "Plan").
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
1. GRANT OF OPTION. The Company shall and does hereby grant to Optionee
the right, privilege and option to purchase 155,000 shares (the "Shares") of
Common Stock for the prices per share in the manner and subject to the
conditions hereinafter provided.
2. TIME OF EXERCISE AND PRICES OF OPTION. Subject to the terms hereof,
the option herein granted must be exercised in whole or in part at any time or
times prior to December 31, 2001. The option herein granted (a) shall be
immediately exercisable as to 77,500 shares of Common Stock, the exercise price
of this portion of the option shall be $2.50 per share of Common Stock, (b)
shall become exercisable as to an additional 46,500 shares of Common Stock if
the Optionee is still an officer or director of the Company on December 31,
1997; the exercise price of this portion of the option shall be $4.00 per share,
and (c) shall become
CORPDAL:65624.2 27822-00003
1
<PAGE>
exercisable as to the balance of 31,000 shares of Common Stock if the Optionee
is still an officer and director of the Company on December 31, 1998; the
exercise price of this portion of the option is the lesser of (i) $8.00 per
share, or (ii) the price per share at which shares of Common Stock are sold to
the public in 1997 or 1998 if with the Company effectuates a public sale of its
Common Stock in 1997 or 1998 using an investment banking firm selected by the
Board of Directors of the Company (in the event of multiple sales to the public
during 1997 and 1998, the price per share of the initial sale shall be
applicable). The parties hereto acknowledge and agree that (A) the requirement
that vesting is contingent upon the Optionee being an officer or director of the
Company is applicable regardless of the reason that the Optionee may cease to be
an officer or director of the Company, and (B) subject to the restrictions
herein as to when the option is exercisable, the Optionee shall have the right
to select the portion of the option, and the related option price, if and when
the Optionee exercises any of this option.
3. METHOD OF EXERCISE. (a) In order to exercise this option, in whole
or in part, the Optionee hereof shall deliver to the Company at its principal
place of business, or at such other offices as shall be designated by the
Company (i) a written notice of such holder's election to exercise this option,
which notice shall specify the number of shares of Common Stock to be purchased
pursuant to such exercise and (ii) either (A) cash or a check payable to the
order of the Company, (B) notice that the exercise price is satisfied by
reduction of the number of shares to be received by holder upon exercise of this
option as provided in Section (b) below, with the amount of such reduction
specified in such notice, (C) shares of Common Stock having a fair market value
equal to the exercise price, or (D) a combination of the above. The Company
shall undertake to make prompt delivery of the stock certificate(s) evidencing
such part of the Shares,
CORPDAL:65624.2 27822-00003
2
<PAGE>
provided that if any law or regulation requires the Company to take any action
with respect to the Shares specified in such notice before the issuance thereof,
then the date of delivery of such Shares shall be extended for the period
necessary to take such action.
(b) At the option of the Optionee, the Optionee may exercise
this option without a cash payment of the exercise price by designating that the
number of shares of Common Stock issuable to Optionee upon such exercise shall
be reduced by the number of shares having a fair market value equal to the
amount of the total exercise price for such exercise. In such instance, no cash
or other consideration will be paid by the holder in connection with such
exercise and no commission or other remuneration will be paid or given by the
Optionee or the Company in connection with such exercise.
4. TERMINATION OF OPTION. To the extent not theretofore exercised, the
option herein granted shall terminate on the earlier of (a) December 31, 2001,
(b) one hundred and eighty (180) days from the date on which Optionee's
employment with the Company is terminated for any reason other than the death or
disability of the Optionee, and (c) one (1) year from the date on which
Optionee's employment with the Company is terminated if such termination is due
to death or disability of the Optionee.
5. RECLASSIFICATION, CONSOLIDATION, OR MERGER. If and to the extent
that the number of shares of Common Stock of the Company shall be increased or
reduced by change in par value, split-up, reclassification, distribution of a
dividend payable in stock, or the like, the number of shares of Common Stock
subject to the option herein granted, and the option price therefor shall be
appropriately adjusted. If the Company merges with one or more entities in a
transaction in which the Company is not the surviving entity, (a) this option
shall thereafter
CORPDAL:65624.2 27822-00003
3
<PAGE>
apply to shares of stock of the surviving entity issuable to the holders of
Common Stock, and (b) the number of shares of stock subject to option and the
option price(s) therefor shall be appropriately adjusted in a manner consistent
with the terms and conditions of the aforesaid merger.
6. RIGHTS PRIOR TO EXERCISE OF OPTION. The option herein granted is
nontransferable by Optionee except as herein otherwise provided. Unless the
Optionee is deceased or disabled, with the determination of the existence or
nonexistence of such disability such disability left to the reasonable
discretion of the Board of Directors of the Company, the option herein may only
be exercised by the Optionee. If the Optionee dies during the period of time
that all or any of part of this option is exercisable, the Optionee's executor
or legal representative may exercise all or any part of this option at any time
or times during the period of time in which the option herein is granted. If the
Optionee is disabled, as aforesaid, the Optionee's legal representative shall
have the right to exercise all or any part of this option at any time or times
during the period of time in which the Optionee is disabled and the option
herein granted has not expired by the terms of this Agreement. With respect to
the shares of stock which are subject to the option herein granted, Optionee
shall have no rights as a stockholder until payment of the option price for the
shares being purchased by exercise of the option herein granted, and the
issuance of the shares involved.
7. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, representatives,
successors and assigns.
8. MULTIPLE ORIGINALS. This Agreement may be executed in multiple
counterparts with each counterpart constituting an original for all purposes.
CORPDAL:65624.2 27822-00003
4
<PAGE>
9. TOTAL AGREEMENT. This Agreement may not be amended or revised except
by a written instrument executed by both of the parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the 15th day of May, 1997.
DIVERSIFIED CORPORATE RESOURCES, INC.
By:__________________________________
M. Ted Dillard, President
OPTIONEE:____________________________
_____________________________________
J. Michael Moore
CORPDAL:65624.2 27822-00003
5
EXHIBIT 5.1
CORPDAL:64543.5 28722-00003
<PAGE>
JENKENS & GILCHRIST
A PROFESSIONAL CORPORATION
AUSTIN, TEXAS
FOUNTAIN PLACE (512) 499-3800
1445 ROSS AVENUE, SUITE 3200
DALLAS, TX 75202 HOUSTON, TEXAS
(713) 951-3300
(214) 855-4500
TELECOPIER (214) 855-4300 SAN ANTONIO, TEXAS
(210) 246-5000
WASHINGTON, D.C.
(202) 326-1500
WRITER'S DIRECT DIAL NUMBER
(214) 855-4326
May 22, 1997
Diversified Corporate Resources, Inc.
12801 N. Central Expressway, Suite 350
Dallas, Texas 75243
Re: Diversified Corporate Resources, Inc. Registration Statement
Gentlemen:
We have acted as counsel to Diversified Corporate Resources, Inc., a
Texas corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about May 22, 1997, under the
Securities Act of 1933, as amended (the "Securities Act"), relating to 600,000
shares (the "Shares") of the $0.10 par value common stock (the "Common Stock"),
of the Company that have been or may be issued by the Company under the Amended
and Restated 1996 Nonqualified Stock Option Plan for the Company (the "Plan")
and stock option agreements by and between the Company and each of Donald A.
Bailey, M. Ted Dillard and J. Michael Moore, executed as of December 1, 1995
(collectively, the "1995 Stock Option Agreements").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies identified to our satisfaction,
of (1) the Articles of Incorporation and the Bylaws of the Company, as amended;
(2) minutes and records of the corporate proceedings of the Company with respect
to the establishment of the Plan, the issuance of shares of Common Stock
pursuant to the Plan, the approval of the 1995 Stock Option Agreements, the
Registration Statement and related matters; (3) the Registration Statement and
exhibits thereto, including the Plan and the 1995 Stock Option Agreements; (4)
the 1995 Stock Options Agreements; and (5) such other documents and instruments
as we have deemed necessary for the expression of opinions herein contained. In
making the foregoing examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. As to various questions of fact material to
this opinion, and as to the content and form of the Articles of Incorporation,
the Bylaws, minutes, records, resolutions and other documents or writings of the
Company, we have relied, to the extent we deem reasonably appropriate, upon
representations or certificates of officers or directors of the Company and upon
documents, records and instruments furnished to us by the Company, without
independent check or verification of their accuracy.
CORPDAL:64543.5 28722-00003
<PAGE>
Diversified Corporate Resources, Inc.
May 22, 1997
Page 2
Based upon the firm's examination, consideration of, and reliance on the
documents and other matters described above, and subject to the assumptions
noted below, this firm is of the opinion that the Company presently has
available at least 600,000 shares of authorized but unissued and/or treasury
shares of Common Stock from which may be issued the 600,000 Shares of Common
Stock issued or proposed to be issued pursuant to the exercise of options (the
"Options") to purchase shares of Common Stock granted under the Plan and/or the
1995 Stock Option Agreements. Assuming that
(1) the outstanding Options are duly granted, and the Options to be granted
in the future will be duly granted, in accordance with the terms of the Plan or,
if applicable, the 1995 Stock Option Agreements;
(2) the Company maintains an adequate number of authorized but unissued
shares and/or treasury shares available for issuance to those persons granted
Options under the Plan and/or the 1995 Stock Option Agreements; and
(3) the consideration for the Shares of Common Stock issued pursuant to the
Plan and/or the 1995 Stock Option Agreements is actually received by the Company
as provided in the Plan (and/or the agreements executed in connection with the
Plan) or, if applicable, the 1995 Stock Option Agreements, and exceeds the par
value of such Shares;
then the 600,000 Shares of Common Stock that may be issued in accordance with
the terms of the Plan and the 1995 Stock Option Agreements will be, when and if
issued, duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By: /s/ Mark D. Wigder
-----------------------
Mark D. Wigder, Esq.
cc: George W. Coleman, Esq.
Gregory J. Schmitt, Esq.
E. Leigh Sutton, Esq.
CORPDAL:64543.5 28722-00003
EXHIBIT 23.2
CORPDAL:64543.5 28722-00003
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Diversified Corporate Resources, Inc.
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of Diversified Corporate Resources,
Inc. on Form S-8 of our report dated April 10, 1997, on our audits of the
consolidated financial statements and financial statement schedules of
Diversified Corporate Resources, Inc. on Form 10-K for the fiscal year ended
December 31, 1996, and to all references to our firm included in this
registration statement.
/s/ Weaver & Tidwell, L.L.P.
----------------------------
WEAVER & TIDWELL, L.L.P.
Dallas, Texas
May 12, 1997
CORPDAL:64543.5 28722-00003
