<PAGE> 1
As filed with the Securities and Exchange Commission on June 11, 1998
Registration No. 333-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
NEW HORIZONS WORLDWIDE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 22-2941704
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
500 Campus Drive
Morganville, New Jersey 07751
(Address of Principal Executive Offices, including Zip Code)
-----------------------------
NON-EMPLOYEE DIRECTOR STOCK OPTION GRANTS
NEW HORIZONS WORLDWIDE, INC. 1997 OUTSIDE DIRECTORS
ELECTIVE STOCK OPTION PLAN
NEW HORIZONS WORLDWIDE, INC. OMNIBUS EQUITY PLAN
(Full Title of the Plans)
-----------------------------
with a copy to:
---------------
Curtis Lee Smith, Jr. Scott R. Wilson, Esq.
Chairman and Chief Executive Officer Calfee, Halter & Griswold LLP
New Horizons Worldwide, Inc. 1400 McDonald Investment Center
500 Campus Drive 800 Superior Avenue
Morganville, New Jersey 07751 Cleveland, Ohio 44114
(732) 536-8501 (216) 622-8200
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 1,340,000 (2) $16.625 $22,277,500 $6,572
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based upon the average of the high
and low sales prices of the Common Stock of New Horizons Worldwide,
Inc. reported on the Nasdaq National Market on June 4, 1998
(2) Of the shares of Common Stock registered hereby, 40,000 shares are
issuable upon the exercise of options granted to the non-employee
directors of the Company, 300,000 shares are issuable pursuant to the
New Horizons Worldwide, Inc. 1997 Outside Directors Elective Stock
Option Plan, and 1,000,000 shares are issuable pursuant to the New
Horizons Worldwide, Inc. Omnibus Equity Plan.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by New Horizons Worldwide,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998;
(3) The Company's Current Report on Form 8-K dated April 30, 1998;
(4) The Company's Definitive Proxy Statement used in connection
with the Company's Annual Meeting of Stockholders held on May
5, 1998; and
(5) The description of the Company's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Company's
Registration Statement on Form 8-A, dated June 22, 1989 (File
No. 0-17840), and any amendments and reports filed for the
purpose of updating that description.
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, prior to the
filing of a post-effective amendment which indicates that all the securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing of such documents,
other than the portions of such documents which by statute, by designation in
such documents or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
Any statement contained in documents incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded, for purposes of this Registration Statement, to the
extent that a statement contained in this Registration Statement, or in any
other subsequently filed document that also is, or is deemed to be, incorporated
by reference in this Registration Statement, 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.
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<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby will be passed upon for
the Company by Calfee, Halter & Griswold LLP, Cleveland, Ohio. Scott R. Wilson,
a Director of the Company, is a partner in the law firm of Calfee, Halter &
Griswold LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") sets
forth the conditions and limitations governing the indemnification of officers,
directors and other persons. Section 145 provides that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or contemplated 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
is or was a director, officer, employee or agent of the corporation or was
serving at the request of the corporation in a similar capacity with another
corporation or other entity, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement incurred in connection therewith
if he acted in good faith and in a manner that he reasonably believed to be in
the best interests of the corporation. With respect to a suit by or in the right
of the corporation, indemnity may be provided to the foregoing persons under
Section 145 on a basis similar to that set forth above, except that no indemnity
may be provided in respect of any claim, issue or matter as to which such person
has been adjudged to be liable to the corporation unless and to the extent that
the Delaware Court of Chancery or the court in which such action, suit or
proceeding was brought determines that despite the adjudication of liability but
in view of all the circumstances of the case such person is entitled to
indemnity for such expenses as the court deems proper. Moreover, Section 145
provides for mandatory indemnification of a director, officer, employee or agent
of the corporation to the extent that such person has been successful in defense
of any such action, suit or proceeding and provides that a corporation may pay
the expenses of an officer or director in defending an action, suit or
proceeding upon receipt of an undertaking to repay such amounts if it is
ultimately determined that such person is not entitled to be indemnified.
Section 145 establishes provisions for determining that a given person is
entitled to indemnification, and also provides that the indemnification provided
by or granted under Section 145 is not exclusive of any rights to indemnity or
advancement of expenses to which such person may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Article V of the Registrant's By-laws provides that the Registrant
shall indemnify, to the fullest extent permitted by Delaware law, any Director
or officer who was or is a party or is threatened to be made a party to any
action, suit or proceeding by reason of the fact that he or she, or a person of
he or she is the legal representative, is or was a Director or officer of the
Registrant, or is or was serving at the request of the Registrant as a Director,
officer, partner,
II-3
<PAGE> 4
trustee, employee or agent of another entity, against all expenses, liabilities
and losses (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties or amounts paid in settlement) reasonably incurred by such person in
connection therewith. In addition, provisions of Article V of the Registrant's
By-laws provide for the advancement of expenses, including attorneys' fees,
incurred by a Director or officer of the Registrant in defending any proceeding
for which indemnification is provided under Article V upon receipt of an
undertaking to repay such amounts if it is ultimately determined that he or she
is not entitled to be indemnified by the Registrant as authorized in Article V.
In addition, Article V permits the Registrant to maintain insurance, at its
expense, to protect itself and any of its Directors or officers or individuals
serving at the request of the registrant as a director, officer, partner,
trustee, employee or agent of another entity, against any expense, liability or
loss, whether or not the Registrant would have the power to indemnify such
person against such expense, liability or loss under the Delaware General
Corporation Law.
Section 102(b) of the DGCL permits corporations to eliminate or limit
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of the director's duty of care. Accordingly, Article
VII of the Registrant's Amended Certificate of Incorporation provides that a
Director of the Registrant shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability (i) for any breach of the Director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which
the Director derived an improper personal benefit. Article VII of the
Registrant's Amended Certificate of Incorporation further provides that any
repeal, amendment or other modification of Article VII will not affect the
liability or alleged liability of any Director of the corporation then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought or threatened based in
whole or in part upon any such state of facts.
In addition to the foregoing, the Registrant has entered into indemnity
agreements with its executive officers and Directors. The indemnity agreements
provide that such persons will be indemnified to the fullest extent permitted by
law against all expenses (including attorneys' fees), judgments, fines, amounts
paid or incurred by them for settlement in any action or proceeding on account
of their service as a Director or officer of the Registrant or of any subsidiary
of the Registrant or of any other entity in which they are serving at the
request of the Registrant.
The agreements bind the registrant to provide indemnification to
Directors and officers whether or not the Registrant maintains Directors and
officers liability insurance coverage and regardless of any future changes in
the By-laws. The protection to be afforded Directors and officers by the
agreements is broader than that provided under the indemnification provisions
contained in the By-laws, in that the agreements expressly provide for the
advancement of expenses and for indemnification with respect to amounts paid in
settlements of derivative actions.
II-4
<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index at Page E-1 of this Registration Statement.
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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement.
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8, or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration
II-5
<PAGE> 6
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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, 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 of 1933 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 whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-6
<PAGE> 7
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 the City of Cleveland, State of Ohio, on this __th day of
________, 1998.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ Curtis Lee Smith, Jr.
-------------------------------------
Curtis Lee Smith, Jr.
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on __________, 1998.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ Curtis Lee Smith, Jr. Chairman of the Board of Directors & Chief
- ------------------------------------------------- Executive Officer and a Director (Principal
Curtis Lee Smith, Jr. Executive Officer)
/s/ Robert S. McMillan Vice President, Treasurer and Chief Financial
- ------------------------------------------------- Officer (Principal Financial Officer and
Robert S. McMillan Principal Accounting Officer)
/s/ Stuart O. Smith Director
- -------------------------------------------------
Stuart O. Smith
/s/ Thomas J. Bresnan Director
- -------------------------------------------------
Thomas J. Bresnan
/s/ David A. Goldfinger Director
- -------------------------------------------------
David A. Goldfinger
</TABLE>
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<PAGE> 8
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ William H. Heller Director
- -------------------------------------------------
William H. Heller
/s/ Richard L. Osborne Director
- -------------------------------------------------
Richard L. Osborne
/s/ Scott R. Wilson Director
- -------------------------------------------------
Scott R. Wilson
</TABLE>
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<PAGE> 9
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
4.1 Amended Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (Reg. No.
33-28798).
4.2 By-Laws of the Company, incorporated herein by reference to
Exhibit 3.2 to the Company's Registration Statement on Form S-1
(Reg. No. 33-28798).
4.3 Amendment to Amended Certificate of Incorporation of the
Company, incorporated herein by reference to Exhibit 3.3 to the
Company's Annual Report on Form 10-K for the year ended
December 28, 1996.
4.4 Specimen certificate for the Common Stock, par value $.01 per
share, of the Company, incorporated herein by reference to
Exhibit 4.1 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1997.
4.5 Stock Option Agreement, dated as of September 19, 1996, between
the Company and David A. Goldfinger.
4.6 Stock Option Agreement, dated as of September 19, 1996, between
the Company and William H. Heller.
4.7 Stock Option Agreement, dated as of September 19, 1996, between
the Company and Richard L. Osborne.
4.8 Stock Option Agreement, dated as of September 19, 1996, between
the Company and Scott R. Wilson.
4.9 New Horizons Worldwide, Inc. 1997 Outside Directors Elective
Stock Option Plan.
4.10 Form of Option Agreement executed by recipients of options
under the New Horizons Worldwide, Inc. 1997 Outside Directors
Elective Stock Option Plan
4.11 New Horizons Worldwide, Inc. Omnibus Equity Plan.
5.1 Opinion of Calfee, Halter & Griswold LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Calfee, Halter & Griswold LLP (included in Exhibit
5.1).
E-1
<PAGE> 1
EXHIBIT 4.5
STOCK OPTION AGREEMENT
(NON-EMPLOYEE DIRECTORS)
------------------------
THIS AGREEMENT, entered into as of the 19th day of September,
1996 by and among NEW HORIZONS WORLDWIDE, INC., a Delaware corporation (the
"Company"), and DAVID A. GOLDFINGER (the "Optionee").
W I T N E S S E T H
-------------------
WHEREAS, the Board of Directors of the Company has determined
that the Optionee, a member of the Board of Directors of the Company who is not
employed by the Company or any subsidiary of the Company (a "Non-Employee
Director") should be granted an option to purchase shares of Common Stock of the
Company, $0.01 par value per share (the "Common Stock"), upon the terms and
subject to the conditions of this Agreement; and
WHEREAS, the grant of this option is subject to approval by
the stockholders of the Company.
NOW, THEREFORE, the Company and the Optionee hereby agree with
respect to such stock options as follows:
1. The Company grants to the Optionee, upon the terms and
subject to the conditions hereinafter set forth, the right and option to
purchase all or any part of an aggregate of Ten Thousand (10,000) shares of
Common Stock (such collective right and option being hereinafter referred to as
the "Option") at a price of $8.81 per share.
2. The term of the Option shall be for a period of Ten (10)
years after the date hereof, and the Option shall expire at 5:00 P.M.,
Morganville, New Jersey time on the last day of the term of the Option, which
date is September 19th, 2006 or, if earlier, on the applicable expiration date
provided for in paragraph 4 hereof.
3. The Option will not be exercisable until affirmed by the
stockholders of the Company. Thereafter, the Optionee shall become entitled to
exercise the Option with respect to all Ten Thousand (10,000) shares of Common
Stock. To the extent that the Option has become exercisable, as provided above,
the Option may thereafter be exercised by the Optionee either as to all or any
part of such whole Shares at any time or from time to time prior to expiration
of the Option pursuant to paragraph 2 hereof. Except as provided in paragraph 4
hereof, the Option may not be exercised at any time unless the Optionee shall,
at the time of exercise, be a Non-Employee Director of the Company.
4. If the Optionee ceases to be a Non-Employee Director due to
disability, the Option shall terminate on the earlier of the date which is one
(1) year after the date the Board determines Optionee is disabled or the last
day of the term of the Option. If the Optionee dies
1
<PAGE> 2
while a Non-Employee Director, such person or persons as shall have acquired, by
will or by the laws of descent and distribution, the right to exercise the
Option (the "Personal Representative") may exercise the Option to the extent of
the purchase rights, if any, which had accrued as of the date of the Optionee's
death pursuant to paragraph 3 hereof and which have not theretofore been
exercised. Such accrued purchase rights shall in any event terminate upon the
earlier of the date which is one (1) year after the date of the Optionee's death
or the last day of the term of the Option. If the Optionee ceases to be a
Non-Employee Director for any reason other than disability or death, the Option
shall terminate on the earlier of the date which is ninety (90) days after the
date of the cessation of his or her directorship or the last day of the term of
the Option. Nothing contained in this Agreement shall confer upon the Optionee
any right to continue as a director of the Company.
5. In the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, share split, share dividend,
split-up, share combination, or other change in the corporate structure of the
Company affecting the shares of Common Stock, an adjustment shall be made in the
number and class of and/or price of shares of Common Stock subject to this
Option, as may be determined to be appropriate and equitable by the Board, in
its sole discretion, to prevent dilution or enlargement of rights; and provided
that the number of shares of Common Stock attributable to any Option shall
always be a whole number. The determination of the Board of Directors of the
Company as to any such adjustment shall be conclusive and binding upon the
Optionee and upon the Personal Representative.
6. The Option may be exercised by delivery to the Secretary of
the Company at its executive offices, 500 Campus Drive, Morganville, New Jersey
07751, of a completed Notice of Exercise of Option (obtainable from the
Secretary of the Company) setting forth the number of whole shares of Stock with
respect to which the Option is being exercised together with payment in full for
such shares of Common Stock, unless other arrangements satisfactory to the
Company for prompt payment are made.
If and to the extent permitted by the Board of Directors of
the Company upon request from the Optionee, the purchase price may be paid by
means of delivery by the Optionee of certificates for shares of Common Stock
then owned by the Optionee, duly endorsed with signature guaranteed and in
proper form for transfer to the Company, having an aggregate Fair Market Value
(as defined herein) equal to the purchase price (or portion thereof) of the
shares of Common Stock for which the Option is being exercised. For purposes of
this paragraph 6, "Fair Market Value" means (a) if the shares of Common Stock
are listed on a nationally recognized stock exchange or the NASDAQ Stock Market,
the closing price of the shares of Common Stock on the date the fair market
value of the shares of Common Stock is being determined, or, if no sale has
occurred on such date, on the most recent preceding day on which there is a
closing price of the shares of Common Stock, or (b) in all other circumstances,
the value determined by the Board after obtaining an appraisal by one or more
independent appraisers meeting the requirements of regulations issued under
Section 170(a)(1) of the Internal Revenue Code of 1986, as amended.
2
<PAGE> 3
7. Upon receipt by the Company prior to expiration of the
Option of a duly completed Notice of Exercise of Option accompanied by a
certified or cashier's check and/or certificates for Shares, as provided in
paragraph 6 hereof, in full payment for the Shares being purchased pursuant to
such Notice (and, with respect to any Option exercised pursuant to paragraph 4
hereof by the Personal Representative, accompanied in addition by proof as to
the right of the Personal Representative to exercise the Option), the Company
shall cause to be mailed or otherwise delivered to the Optionee or the Personal
Representative, as the case may be, as soon as practicable, but in any event
within thirty (30) days of such receipt, a certificate or certificates for the
number of shares of Common Stock so purchased. Notwithstanding the foregoing,
the delivery of such certificates is hereby expressly conditioned upon obtaining
an investment representation from the Optionee or the Personal Representative in
such form as the Company, in its sole discretion, shall determine to be
adequate. The Optionee or the Personal Representative shall not have any of the
rights of a stockholder with respect to the shares of Common Stock covered by
the Option unless and until one or more certificates representing such shares of
Common Stock shall be issued to the Optionee or the Personal Representative.
8. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and the heirs, estate and
Personal Representative of the Optionee. The Option may be exercised during the
lifetime of the Optionee only by the Optionee, except as otherwise set forth
herein.
9. All obligations of the Company with respect to this
Agreement shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
10. In the event any provision of this Agreement shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of this Agreement, and this Agreement shall be construed and
enforced as if the illegal or invalid provision had not been included.
The granting of the Option and the issuance of shares of
Common Stock under this Agreement shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. Transactions under this
Agreement are intended to comply with all applicable conditions of Rule 16b-3 or
its successors under the Securities Exchange Act of 1934, as amended. To the
extent any provision of this Agreement fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the Board
of Directors of the Company.
To the extent not preempted by Federal law, this Agreement
shall be construed in accordance with and governed by the laws of the State of
Delaware.
The Option granted under this Agreement shall, for purposes of
the Federal income tax, be nonqualified stock options.
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its undersigned officer thereunto duly authorized,
and the Optionee has hereunto set his hand, all as of the day and year first
above written.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ Curtis Lee Smith, Jr.
-------------------------------
Curtis Lee Smith, Jr.
Chairman of the Board and
Chief Executive Officer
OPTIONEE:
/s/ David A. Goldfinger
------------------------------
David A. Goldfinger
4
<PAGE> 1
EXHIBIT 4.6
STOCK OPTION AGREEMENT
(NON-EMPLOYEE DIRECTORS)
------------------------
THIS AGREEMENT, entered into as of the 19th day of September,
1996 by and among NEW HORIZONS WORLDWIDE, INC., a Delaware corporation (the
"Company"), and WILLIAM H. HELLER (the "Optionee").
W I T N E S S E T H
-------------------
WHEREAS, the Board of Directors of the Company has determined
that the Optionee, a member of the Board of Directors of the Company who is not
employed by the Company or any subsidiary of the Company (a "Non-Employee
Director") should be granted an option to purchase shares of Common Stock of the
Company, $0.01 par value per share (the "Common Stock"), upon the terms and
subject to the conditions of this Agreement; and
WHEREAS, the grant of this option is subject to approval by
the stockholders of the Company.
NOW, THEREFORE, the Company and the Optionee hereby agree with
respect to such stock options as follows:
1. The Company grants to the Optionee, upon the terms and
subject to the conditions hereinafter set forth, the right and option to
purchase all or any part of an aggregate of Ten Thousand (10,000) shares of
Common Stock (such collective right and option being hereinafter referred to as
the "Option") at a price of $8.81 per share.
2. The term of the Option shall be for a period of Ten (10)
years after the date hereof, and the Option shall expire at 5:00 P.M.,
Morganville, New Jersey time on the last day of the term of the Option, which
date is September 19th, 2006 or, if earlier, on the applicable expiration date
provided for in paragraph 4 hereof.
3 The Option will not be exercisable until affirmed by the
stockholders of the Company. Thereafter, the Optionee shall become entitled to
exercise the Option with respect to all Ten Thousand (10,000) shares of Common
Stock. To the extent that the Option has become exercisable, as provided above,
the Option may thereafter be exercised by the Optionee either as to all or any
part of such whole Shares at any time or from time to time prior to expiration
of the Option pursuant to paragraph 2 hereof. Except as provided in paragraph 4
hereof, the Option may not be exercised at any time unless the Optionee shall,
at the time of exercise, be a Non-Employee Director of the Company.
4. If the Optionee ceases to be a Non-Employee Director due to
disability, the Option shall terminate on the earlier of the date which is one
(1) year after the date the Board determines Optionee is disabled or the last
day of the term of the Option. If the Optionee dies
5
<PAGE> 2
while a Non-Employee Director, such person or persons as shall have acquired, by
will or by the laws of descent and distribution, the right to exercise the
Option (the "Personal Representative") may exercise the Option to the extent of
the purchase rights, if any, which had accrued as of the date of the Optionee's
death pursuant to paragraph 3 hereof and which have not theretofore been
exercised. Such accrued purchase rights shall in any event terminate upon the
earlier of the date which is one (1) year after the date of the Optionee's death
or the last day of the term of the Option. If the Optionee ceases to be a
Non-Employee Director for any reason other than disability or death, the Option
shall terminate on the earlier of the date which is ninety (90) days after the
date of the cessation of his or her directorship or the last day of the term of
the Option. Nothing contained in this Agreement shall confer upon the Optionee
any right to continue as a director of the Company.
5. In the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, share split, share dividend,
split-up, share combination, or other change in the corporate structure of the
Company affecting the shares of Common Stock, an adjustment shall be made in the
number and class of and/or price of shares of Common Stock subject to this
Option, as may be determined to be appropriate and equitable by the Board, in
its sole discretion, to prevent dilution or enlargement of rights; and provided
that the number of shares of Common Stock attributable to any Option shall
always be a whole number. The determination of the Board of Directors of the
Company as to any such adjustment shall be conclusive and binding upon the
Optionee and upon the Personal Representative.
6. The Option may be exercised by delivery to the Secretary of
the Company at its executive offices, 500 Campus Drive, Morganville, New Jersey
07751, of a completed Notice of Exercise of Option (obtainable from the
Secretary of the Company) setting forth the number of whole shares of Stock with
respect to which the Option is being exercised together with payment in full for
such shares of Common Stock, unless other arrangements satisfactory to the
Company for prompt payment are made.
If and to the extent permitted by the Board of Directors of
the Company upon request from the Optionee, the purchase price may be paid by
means of delivery by the Optionee of certificates for shares of Common Stock
then owned by the Optionee, duly endorsed with signature guaranteed and in
proper form for transfer to the Company, having an aggregate Fair Market Value
(as defined herein) equal to the purchase price (or portion thereof) of the
shares of Common Stock for which the Option is being exercised. For purposes of
this paragraph 6, "Fair Market Value" means (a) if the shares of Common Stock
are listed on a nationally recognized stock exchange or the NASDAQ Stock Market,
the closing price of the shares of Common Stock on the date the fair market
value of the shares of Common Stock is being determined, or, if no sale has
occurred on such date, on the most recent preceding day on which there is a
closing price of the shares of Common Stock, or (b) in all other circumstances,
the value determined by the Board after obtaining an appraisal by one or more
independent appraisers meeting the requirements of regulations issued under
Section 170(a)(1) of the Internal Revenue Code of 1986, as amended.
2
<PAGE> 3
7. Upon receipt by the Company prior to expiration of the
Option of a duly completed Notice of Exercise of Option accompanied by a
certified or cashier's check and/or certificates for Shares, as provided in
paragraph 6 hereof, in full payment for the Shares being purchased pursuant to
such Notice (and, with respect to any Option exercised pursuant to paragraph 4
hereof by the Personal Representative, accompanied in addition by proof as to
the right of the Personal Representative to exercise the Option), the Company
shall cause to be mailed or otherwise delivered to the Optionee or the Personal
Representative, as the case may be, as soon as practicable, but in any event
within thirty (30) days of such receipt, a certificate or certificates for the
number of shares of Common Stock so purchased. Notwithstanding the foregoing,
the delivery of such certificates is hereby expressly conditioned upon obtaining
an investment representation from the Optionee or the Personal Representative in
such form as the Company, in its sole discretion, shall determine to be
adequate. The Optionee or the Personal Representative shall not have any of the
rights of a stockholder with respect to the shares of Common Stock covered by
the Option unless and until one or more certificates representing such shares of
Common Stock shall be issued to the Optionee or the Personal Representative.
8. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and the heirs, estate and
Personal Representative of the Optionee. The Option may be exercised during the
lifetime of the Optionee only by the Optionee, except as otherwise set forth
herein.
9. All obligations of the Company with respect to this
Agreement shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
10. In the event any provision of this Agreement shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of this Agreement, and this Agreement shall be construed and
enforced as if the illegal or invalid provision had not been included.
The granting of the Option and the issuance of shares of
Common Stock under this Agreement shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. Transactions under this
Agreement are intended to comply with all applicable conditions of Rule 16b-3 or
its successors under the Securities Exchange Act of 1934, as amended. To the
extent any provision of this Agreement fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the Board
of Directors of the Company.
To the extent not preempted by Federal law, this Agreement
shall be construed in accordance with and governed by the laws of the State of
Delaware.
The Option granted under this Agreement shall, for purposes of
the Federal income tax, be nonqualified stock options.
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its undersigned officer thereunto duly authorized,
and the Optionee has hereunto set his hand, all as of the day and year first
above written.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ Curtis Lee Smith, Jr.
------------------------------
Curtis Lee Smith, Jr.
Chairman of the Board and
Chief Executive Officer
OPTIONEE:
/s/ William H. Heller
------------------------------
WILLIAM H. HELLER
4
<PAGE> 1
EXHIBIT 4.7
STOCK OPTION AGREEMENT
(NON-EMPLOYEE DIRECTORS)
------------------------
THIS AGREEMENT, entered into as of the 19th day of September,
1996 by and among NEW HORIZONS WORLDWIDE, INC., a Delaware corporation (the
"Company"), and RICHARD L. OSBORNE (the "Optionee").
W I T N E S S E T H
-------------------
WHEREAS, the Board of Directors of the Company has determined
that the Optionee, a member of the Board of Directors of the Company who is not
employed by the Company or any subsidiary of the Company (a "Non-Employee
Director") should be granted an option to purchase shares of Common Stock of the
Company, $0.01 par value per share (the "Common Stock"), upon the terms and
subject to the conditions of this Agreement; and
WHEREAS, the grant of this option is subject to approval by
the stockholders of the Company.
NOW, THEREFORE, the Company and the Optionee hereby agree with
respect to such stock options as follows:
1. The Company grants to the Optionee, upon the terms and
subject to the conditions hereinafter set forth, the right and option to
purchase all or any part of an aggregate of Ten Thousand (10,000) shares of
Common Stock (such collective right and option being hereinafter referred to as
the "Option") at a price of $8.81 per share.
2. The term of the Option shall be for a period of Ten (10)
years after the date hereof, and the Option shall expire at 5:00 P.M.,
Morganville, New Jersey time on the last day of the term of the Option, which
date is September 19th, 2006 or, if earlier, on the applicable expiration date
provided for in paragraph 4 hereof.
3 The Option will not be exercisable until affirmed by the
stockholders of the Company. Thereafter, the Optionee shall become entitled to
exercise the Option with respect to all Ten Thousand (10,000) shares of Common
Stock. To the extent that the Option has become exercisable, as provided above,
the Option may thereafter be exercised by the Optionee either as to all or any
part of such whole Shares at any time or from time to time prior to expiration
of the Option pursuant to paragraph 2 hereof. Except as provided in paragraph 4
hereof, the Option may not be exercised at any time unless the Optionee shall,
at the time of exercise, be a Non-Employee Director of the Company.
4. If the Optionee ceases to be a Non-Employee Director due to
disability, the Option shall terminate on the earlier of the date which is one
(1) year after the date the Board determines Optionee is disabled or the last
day of the term of the Option. If the Optionee dies
1
<PAGE> 2
while a Non-Employee Director, such person or persons as shall have acquired, by
will or by the laws of descent and distribution, the right to exercise the
Option (the "Personal Representative") may exercise the Option to the extent of
the purchase rights, if any, which had accrued as of the date of the Optionee's
death pursuant to paragraph 3 hereof and which have not theretofore been
exercised. Such accrued purchase rights shall in any event terminate upon the
earlier of the date which is one (1) year after the date of the Optionee's death
or the last day of the term of the Option. If the Optionee ceases to be a
Non-Employee Director for any reason other than disability or death, the Option
shall terminate on the earlier of the date which is ninety (90) days after the
date of the cessation of his or her directorship or the last day of the term of
the Option. Nothing contained in this Agreement shall confer upon the Optionee
any right to continue as a director of the Company.
5. In the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, share split, share dividend,
split-up, share combination, or other change in the corporate structure of the
Company affecting the shares of Common Stock, an adjustment shall be made in the
number and class of and/or price of shares of Common Stock subject to this
Option, as may be determined to be appropriate and equitable by the Board, in
its sole discretion, to prevent dilution or enlargement of rights; and provided
that the number of shares of Common Stock attributable to any Option shall
always be a whole number. The determination of the Board of Directors of the
Company as to any such adjustment shall be conclusive and binding upon the
Optionee and upon the Personal Representative.
6. The Option may be exercised by delivery to the Secretary of
the Company at its executive offices, 500 Campus Drive, Morganville, New Jersey
07751, of a completed Notice of Exercise of Option (obtainable from the
Secretary of the Company) setting forth the number of whole shares of Stock with
respect to which the Option is being exercised together with payment in full for
such shares of Common Stock, unless other arrangements satisfactory to the
Company for prompt payment are made.
If and to the extent permitted by the Board of Directors of
the Company upon request from the Optionee, the purchase price may be paid by
means of delivery by the Optionee of certificates for shares of Common Stock
then owned by the Optionee, duly endorsed with signature guaranteed and in
proper form for transfer to the Company, having an aggregate Fair Market Value
(as defined herein) equal to the purchase price (or portion thereof) of the
shares of Common Stock for which the Option is being exercised. For purposes of
this paragraph 6, "Fair Market Value" means (a) if the shares of Common Stock
are listed on a nationally recognized stock exchange or the NASDAQ Stock Market,
the closing price of the shares of Common Stock on the date the fair market
value of the shares of Common Stock is being determined, or, if no sale has
occurred on such date, on the most recent preceding day on which there is a
closing price of the shares of Common Stock, or (b) in all other circumstances,
the value determined by the Board after obtaining an appraisal by one or more
independent appraisers meeting the requirements of regulations issued under
Section 170(a)(1) of the Internal Revenue Code of 1986, as amended.
2
<PAGE> 3
7. Upon receipt by the Company prior to expiration of the
Option of a duly completed Notice of Exercise of Option accompanied by a
certified or cashier's check and/or certificates for Shares, as provided in
paragraph 6 hereof, in full payment for the Shares being purchased pursuant to
such Notice (and, with respect to any Option exercised pursuant to paragraph 4
hereof by the Personal Representative, accompanied in addition by proof as to
the right of the Personal Representative to exercise the Option), the Company
shall cause to be mailed or otherwise delivered to the Optionee or the Personal
Representative, as the case may be, as soon as practicable, but in any event
within thirty (30) days of such receipt, a certificate or certificates for the
number of shares of Common Stock so purchased. Notwithstanding the foregoing,
the delivery of such certificates is hereby expressly conditioned upon obtaining
an investment representation from the Optionee or the Personal Representative in
such form as the Company, in its sole discretion, shall determine to be
adequate. The Optionee or the Personal Representative shall not have any of the
rights of a stockholder with respect to the shares of Common Stock covered by
the Option unless and until one or more certificates representing such shares of
Common Stock shall be issued to the Optionee or the Personal Representative.
8. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and the heirs, estate and
Personal Representative of the Optionee. The Option may be exercised during the
lifetime of the Optionee only by the Optionee, except as otherwise set forth
herein.
9. All obligations of the Company with respect to this
Agreement shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
10. In the event any provision of this Agreement shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of this Agreement, and this Agreement shall be construed and
enforced as if the illegal or invalid provision had not been included.
The granting of the Option and the issuance of shares of
Common Stock under this Agreement shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. Transactions under this
Agreement are intended to comply with all applicable conditions of Rule 16b-3 or
its successors under the Securities Exchange Act of 1934, as amended. To the
extent any provision of this Agreement fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the Board
of Directors of the Company.
To the extent not preempted by Federal law, this Agreement
shall be construed in accordance with and governed by the laws of the State of
Delaware.
The Option granted under this Agreement shall, for purposes of
the Federal income tax, be nonqualified stock options.
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its undersigned officer thereunto duly authorized,
and the Optionee has hereunto set his hand, all as of the day and year first
above written.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ Curtis Lee Smith, Jr.
-----------------------------
Curtis Lee Smith, Jr.
Chairman of the Board and
Chief Executive Officer
OPTIONEE:
/s/ Richard L. Osborne
------------------------------
RICHARD L. OSBORNE
4
<PAGE> 1
EXHIBIT 4.8
STOCK OPTION AGREEMENT
(NON-EMPLOYEE DIRECTORS)
------------------------
THIS AGREEMENT, entered into as of the 19th day of September,
1996 by and among NEW HORIZONS WORLDWIDE, INC., a Delaware corporation (the
"Company"), and SCOTT R. WILSON (the "Optionee").
W I T N E S S E T H
-------------------
WHEREAS, the Board of Directors of the Company has determined
that the Optionee, a member of the Board of Directors of the Company who is not
employed by the Company or any subsidiary of the Company (a "Non-Employee
Director") should be granted an option to purchase shares of Common Stock of the
Company, $0.01 par value per share (the "Common Stock"), upon the terms and
subject to the conditions of this Agreement; and
WHEREAS, the grant of this option is subject to approval by
the stockholders of the Company.
NOW, THEREFORE, the Company and the Optionee hereby agree with
respect to such stock options as follows:
1. The Company grants to the Optionee, upon the terms and
subject to the conditions hereinafter set forth, the right and option to
purchase all or any part of an aggregate of Ten Thousand (10,000) shares of
Common Stock (such collective right and option being hereinafter referred to as
the "Option") at a price of $8.81 per share.
2. The term of the Option shall be for a period of Ten (10)
years after the date hereof, and the Option shall expire at 5:00 P.M.,
Morganville, New Jersey time on the last day of the term of the Option, which
date is September 19th, 2006 or, if earlier, on the applicable expiration date
provided for in paragraph 4 hereof.
3 The Option will not be exercisable until affirmed by the
stockholders of the Company. Thereafter, the Optionee shall become entitled to
exercise the Option with respect to all Ten Thousand (10,000) shares of Common
Stock. To the extent that the Option has become exercisable, as provided above,
the Option may thereafter be exercised by the Optionee either as to all or any
part of such whole Shares at any time or from time to time prior to expiration
of the Option pursuant to paragraph 2 hereof. Except as provided in paragraph 4
hereof, the Option may not be exercised at any time unless the Optionee shall,
at the time of exercise, be a Non-Employee Director of the Company.
4. If the Optionee ceases to be a Non-Employee Director due to
disability, the Option shall terminate on the earlier of the date which is one
(1) year after the date the Board determines Optionee is disabled or the last
day of the term of the Option. If the Optionee dies
1
<PAGE> 2
while a Non-Employee Director, such person or persons as shall have acquired, by
will or by the laws of descent and distribution, the right to exercise the
Option (the "Personal Representative") may exercise the Option to the extent of
the purchase rights, if any, which had accrued as of the date of the Optionee's
death pursuant to paragraph 3 hereof and which have not theretofore been
exercised. Such accrued purchase rights shall in any event terminate upon the
earlier of the date which is one (1) year after the date of the Optionee's death
or the last day of the term of the Option. If the Optionee ceases to be a
Non-Employee Director for any reason other than disability or death, the Option
shall terminate on the earlier of the date which is ninety (90) days after the
date of the cessation of his or her directorship or the last day of the term of
the Option. Nothing contained in this Agreement shall confer upon the Optionee
any right to continue as a director of the Company.
5. In the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, share split, share dividend,
split-up, share combination, or other change in the corporate structure of the
Company affecting the shares of Common Stock, an adjustment shall be made in the
number and class of and/or price of shares of Common Stock subject to this
Option, as may be determined to be appropriate and equitable by the Board, in
its sole discretion, to prevent dilution or enlargement of rights; and provided
that the number of shares of Common Stock attributable to any Option shall
always be a whole number. The determination of the Board of Directors of the
Company as to any such adjustment shall be conclusive and binding upon the
Optionee and upon the Personal Representative.
6. The Option may be exercised by delivery to the Secretary of
the Company at its executive offices, 500 Campus Drive, Morganville, New Jersey
07751, of a completed Notice of Exercise of Option (obtainable from the
Secretary of the Company) setting forth the number of whole shares of Stock with
respect to which the Option is being exercised together with payment in full for
such shares of Common Stock, unless other arrangements satisfactory to the
Company for prompt payment are made.
If and to the extent permitted by the Board of Directors of
the Company upon request from the Optionee, the purchase price may be paid by
means of delivery by the Optionee of certificates for shares of Common Stock
then owned by the Optionee, duly endorsed with signature guaranteed and in
proper form for transfer to the Company, having an aggregate Fair Market Value
(as defined herein) equal to the purchase price (or portion thereof) of the
shares of Common Stock for which the Option is being exercised. For purposes of
this paragraph 6, "Fair Market Value" means (a) if the shares of Common Stock
are listed on a nationally recognized stock exchange or the NASDAQ Stock Market,
the closing price of the shares of Common Stock on the date the fair market
value of the shares of Common Stock is being determined, or, if no sale has
occurred on such date, on the most recent preceding day on which there is a
closing price of the shares of Common Stock, or (b) in all other circumstances,
the value determined by the Board after obtaining an appraisal by one or more
independent appraisers meeting the requirements of regulations issued under
Section 170(a)(1) of the Internal Revenue Code of 1986, as amended.
2
<PAGE> 3
7. Upon receipt by the Company prior to expiration of the
Option of a duly completed Notice of Exercise of Option accompanied by a
certified or cashier's check and/or certificates for Shares, as provided in
paragraph 6 hereof, in full payment for the Shares being purchased pursuant to
such Notice (and, with respect to any Option exercised pursuant to paragraph 4
hereof by the Personal Representative, accompanied in addition by proof as to
the right of the Personal Representative to exercise the Option), the Company
shall cause to be mailed or otherwise delivered to the Optionee or the Personal
Representative, as the case may be, as soon as practicable, but in any event
within thirty (30) days of such receipt, a certificate or certificates for the
number of shares of Common Stock so purchased. Notwithstanding the foregoing,
the delivery of such certificates is hereby expressly conditioned upon obtaining
an investment representation from the Optionee or the Personal Representative in
such form as the Company, in its sole discretion, shall determine to be
adequate. The Optionee or the Personal Representative shall not have any of the
rights of a stockholder with respect to the shares of Common Stock covered by
the Option unless and until one or more certificates representing such shares of
Common Stock shall be issued to the Optionee or the Personal Representative.
8. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and the heirs, estate and
Personal Representative of the Optionee. The Option may be exercised during the
lifetime of the Optionee only by the Optionee, except as otherwise set forth
herein.
9. All obligations of the Company with respect to this
Agreement shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
10. In the event any provision of this Agreement shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of this Agreement, and this Agreement shall be construed and
enforced as if the illegal or invalid provision had not been included.
The granting of the Option and the issuance of shares of
Common Stock under this Agreement shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. Transactions under this
Agreement are intended to comply with all applicable conditions of Rule 16b-3 or
its successors under the Securities Exchange Act of 1934, as amended. To the
extent any provision of this Agreement fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the Board
of Directors of the Company.
To the extent not preempted by Federal law, this Agreement
shall be construed in accordance with and governed by the laws of the State of
Delaware.
The Option granted under this Agreement shall, for purposes of
the Federal income tax, be nonqualified stock options.
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its undersigned officer thereunto duly authorized,
and the Optionee has hereunto set his hand, all as of the day and year first
above written.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ Curtis Lee Smith, Jr.
---------------------------
Curtis Lee Smith, Jr.
Chairman of the Board and
Chief Executive Officer
OPTIONEE:
/s/ Scott R. Wilson
------------------------------
SCOTT R. WILSON
4
<PAGE> 1
EXHIBIT 4.9
NEW HORIZONS WORLDWIDE, INC.
1997 OUTSIDE DIRECTORS ELECTIVE STOCK OPTION PLAN
-------------------------------------------------
New Horizons Worldwide, Inc. hereby adopts a stock option plan for the
benefit of certain persons and subject to the terms and provisions set forth
below.
1. DEFINITIONS. The following terms shall have the meanings set forth
below whenever used in this document:
(a) "Affiliate" shall mean any Person which controls, is
controlled by, or is under common control with, the
Company.
(b) "Applicable Year" shall mean, as the context shall
require, calendar year 1998, 1999 or 2000.
(c) "Board" shall mean the Board of Directors of the
Company.
(d) "Change of Control" shall mean any transaction or
series of transactions where any Person, or any two
or more Persons acting as a group, and all Affiliates
of such Person, who prior to such time owned less
than five percent (5%) of the then outstanding
Shares, acquires such additional Shares in one or
more transaction, or series of transactions, such
that following such transaction or transactions, such
Person or group and Affiliates beneficially own fifty
percent (50%) or more of the Shares.
(e) "Code" shall mean the United States Internal Revenue
Code (Title 26 of the United States Code).
(f) "Committee" shall mean a committee of the Board
consisting of all members of the Board other than the
Outside Directors.
(g) "Company" shall mean New Horizons Worldwide, Inc., a
Delaware corporation, and any successor thereto which
shall maintain the Plan.
(h) "Director Fees" shall mean the regular fees scheduled
to be paid to an Outside Director for his services as
a member of the Board during an
<PAGE> 2
Applicable Year.
(i) "Disability" shall mean an Optionee's inability, due
to a physical or mental condition, to continue to
serve as a member of the Board, as determined by the
Committee pursuant to written certification of such
Disability from a physician acceptable to the
Committee.
(j) "Fair Market Value" shall mean, in respect of the
Shares, either:
(i) if the Shares are publicly traded on a
national securities exchange, the closing
price on the date Fair market Value is being
determined; or
(ii) if the Shares are publicly traded over the
counter, the average of the closing bid and
ask prices on the date the Fair Market Value
is being determined; or
(iii) if the Shares are not publicly traded, the
value determined in accordance with policies
adopted by the Committee.
(k) "Issue Date" shall mean in respect of any Option for
which an Outside Director's election is made under
Section 7 hereof:
(i) November 26, 1997 for Applicable Year 1998;
and
(ii) the December 1 which immediately precedes
Applicable Years 1999 and 2000.
(l) "Option" shall mean, subject to all of the terms and
conditions of this Plan, the right and option of an
Outside Director to purchase Shares.
(m) "Optionee" shall mean any Outside Director to whom an
Option has been issued pursuant to the Plan.
(n) "Option Price" shall mean the price at which a Share
may be acquired upon the exercise of an Option.
(o) "Outside Director" shall mean a member of the Board
who neither (i) is employed by the Company or a
Subsidiary nor (ii) owns beneficially ten percent
(10%) or more of the Shares.
(p) "Person" shall mean a natural person or a legal
entity, including, without limitation,
2
<PAGE> 3
corporations, partnerships, trusts, and limited
liability companies.
(q) "Personal Representative" shall mean, following an
Optionee's death, the Person who shall have acquired,
by Will or by the laws of descent and distribution,
the right to exercise any Option.
(r) "Plan" shall mean this document, the New Horizons
Worldwide, Inc. 1997 Outside Directors Elective Stock
Option Plan, as it is originally adopted and as it
may be amended hereafter.
(s) "Shares" shall mean shares of the $.01 par value
common stock of the Company.
(t) "Subsidiary" shall mean any corporation or other
legal entity at least 50% of the common stock (or
comparable equity ownership interest) of which is
owned directly or indirectly by the Company.
2. PURPOSE OF THE PLAN. The purpose of the Plan is to provide the
Outside Directors with greater incentive to serve and promote the interests of
the Company and its stockholders. The premise of the Plan is that, if such
Outside Directors acquire a proprietary interest in the business of the Company
or increase such proprietary interest as they may already hold, then the
incentive of such Outside Directors to work toward the Company's continued
success will be commensurately increased. Accordingly, the Company will, in
respect of each Applicable Year, offer each Outside Director the opportunity to
elect to receive Options in lieu of other consideration which would be paid the
Outside Director for services to the Company.
3. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective on
November 26, 1997, subject to approval by holders of a majority of the
outstanding Shares. In the event the Plan is not so approved within twelve (12)
months after the date the Plan is adopted, the Plan and any Options issued
hereunder shall be
3
<PAGE> 4
null and void. If, however, the Plan is so approved, subject to the provisions
of Section 9, no further stockholder approval shall be required with respect to
the issue of any Options pursuant to the Plan.
4. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Committee. A majority of the Committee shall constitute a quorum, and the acts
of a majority of the members present at any meeting at which a quorum is
present, or acts approved in writing by a majority of the members, shall be acts
of the Committee. Subject to the terms and conditions of the Plan, the Committee
shall have full and final authority in its absolute discretion:
(a) to prescribe the form of the option agreements which
shall be executed by Optionees and which shall
evidence Options issued under the Plan;
(b) To adopt, amend and rescind such rules and
regulations as, in the Committee's opinion, may be
advisable in the administration of the Plan; and
(c) To construe and interpret the Plan, the rules and
regulations and the instruments evidencing Options
issued under the Plan and to make all other
determinations deemed necessary or advisable for the
administration of the Plan.
Any decision made or action taken by the Committee in connection with the
administration, interpretation, and implementation of the Plan and of its rules
and regulations, shall, to the extent permitted by law, be conclusive and
binding upon all Optionees and upon any Person claiming under or through an
Optionee. Neither the Committee nor any of its members shall be liable for any
act taken by the Committee pursuant to the Plan. No member of the Committee
shall be liable for the act of any other member.
4
<PAGE> 5
5. PERSONS ELIGIBLE FOR OPTIONS. Every Outside Director shall be
eligible to elect to be issued Options under the Plan as provided in Section 7.
6. MAXIMUM NUMBER OF SHARES IN RESPECT OF WHICH OPTIONS MAY BE ISSUED.
The aggregate number of Shares for which Options may be issued under the Plan
shall be Three Hundred Thousand (300,000) Shares. Either treasury or authorized
and unissued Shares, or both, in such numbers, within the maximum limit of the
Plan, as the Committee shall from time to time determine, may be so issued. All
Shares which are the subject of any lapsed, expired or terminated Options may be
made available for reoffering under the Plan. In the event that subsequent to
the date of adoption of the Plan by the Board, the outstanding Shares are, as a
result of a stock split, stock dividend, combination or exchange of shares,
exchange for other securities, reclassification, reorganization, redesignation,
merger, consolidation, recapitalization, spin-off, split-off, split-up or other
such change (including, without limitation, any transaction described in Section
424(a) of the Code) or a special dividend or other distribution to the Company's
shareholders, increased or decreased or changed into or exchanged for a
different number or kind of shares of stock or other securities of the Company,
then (i) there shall automatically be substituted for each Share subject to an
unexercised Option and each Share available for additional issues of Options
under the Plan the number and kind of shares of stock or other securities into
which each outstanding Share shall be exchanged, (ii) the Option Price shall be
increased or decreased
5
<PAGE> 6
proportionately so that the aggregate purchase price for the securities subject
to the Option shall remain the same as immediately prior to such event, and
(iii) the Committee shall make such other adjustments to the securities subject
to Options, the provisions of the Plan, and option agreements as may be
appropriate, equitable and in compliance with the provisions of Section 424(a)
of the Code to the extent applicable and any such adjustment shall be final,
binding and conclusive as to each Optionee. Any such adjustment may, in the
discretion of the Committee, provide for the elimination of fractional Shares.
7. ELECTION TO RECEIVE OPTION IN LIEU OF DIRECTOR FEES. Subject to the
availability of Shares under Section 6, pursuant to uniform rules and procedures
prescribed by the Committee, no later than the December 1 which immediately
precedes an Applicable Year, an Outside Director may elect to have issued to
him, in lieu of payment of either one-half (1/2) or all of his Director Fees for
the Applicable Year, an Option to purchase one Share for each dollar of Director
Fees for which the election is made. Any such election shall be irrevocable.
8. Option Provisions.
------------------
(a) OPTION PRICE. The Option Price shall be Fair Market Value
determined on the Issue Date.
(b) TERM OF OPTION. Except as otherwise provided herein, each
Option shall be exercisable through the fifth anniversary of its Issue Date.
(c) EXERCISABILITY OF OPTION -- IN GENERAL. Subject to
subsections (d) and (e) below, an Outside Director may exercise
6
<PAGE> 7
an Option at any time from the first anniversary of the Option's Issue Date
through the remaining term of the Option.
(d) Cancellation of Option.
-----------------------
(i) In the event an Outside Director ceases to be a
member of the Board for any reason prior to the first day of the Applicable Year
in respect of which an Option was issued, such Option shall be cancelled.
(ii) If an Outside Director ceases to be a member of
the Board for any reason during an Applicable Year in respect of which the
Outside Director was issued an Option pursuant to Section 7, then the Option
shall be cancelled with respect to a number of Shares equal to (A) MULTIPLIED BY
(B) below where:
(A) equals the number of Shares subject to
the Option issued in respect of the Applicable Year pursuant to Section
7; and
(B) equals a fraction, the NUMERATOR of
which equals the number of full calendar quarters in the Applicable
Year during which the Outside Director was not a member of the Board,
and the DENOMINATOR of which equals four.
(e) CHANGE OF CONTROL, DISSOLUTION, LIQUIDATION AND CERTAIN
MERGERS. Upon the occurrence of a Change of Control, or immediately prior to a
dissolution or liquidation of the Company (but only if the distributee of
substantially all of the Company's assets upon the liquidation of the Company
was not, immediately prior to the liquidation, an Affiliate) or a merger or
consolidation in which the Company is the surviving corporation (but only if the
corporation which is the surviving corporation in such merger or consolidation
was not, immediately prior to the merger or consolidation, an Affiliate), the
Optionee shall have the immediate and nonforfeitable right to exercise the
Option with
7
<PAGE> 8
respect to all Shares covered by the Option, and any such exercise shall be
irrevocable. The Optionee shall be entitled to exercise the Option as provided
in the immediately preceding sentence regardless of whether the other
corporation which is the surviving corporation in a merger or consolidation
shall adopt and maintain the Plan. In the event the Option becomes exercisable
pursuant to this subsection (e), the Company shall notify the Optionee of his
right to exercise the Option.
(f) LIMITATION ON EXERCISE AND TRANSFER OF OPTION. Except as
otherwise provided in the event of an Optionee's death, only the Optionee may
exercise an Option, provided that a guardian or other legal representative who
has been duly appointed for such Optionee may exercise an Option on behalf of
the Optionee. No Option issued hereunder shall be transferable other than by the
Last Will and Testament of the Optionee or, if the Optionee dies intestate, by
the applicable laws of descent and distribution. No Option issued hereunder may
be pledged or hypothecated, nor shall any such Option be subject to execution,
attachment or similar process. In the event of an Optionee's death, the Option,
to the extent exercisable at the time of his death, may be exercised during its
remaining term by the deceased Optionee's Personal Representative.
(g) CONDITIONS GOVERNING EXERCISE OF OPTION. An Option may be
exercised in whole or in part at any time during its term, but this right of
exercise shall be limited to whole Shares. Options shall be exercised by the
Optionee giving written notice to the Company of the Optionee's exercise of the
Option accom-
8
<PAGE> 9
panied by full payment of the purchase price for the Shares, unless other
arrangements satisfactory to the Company for prompt payment of such amount are
made. Payments shall be made by such type of check or other means of funds
transfer as is acceptable to the Company or, with the consent of the Committee,
in whole or in part in Shares having a Fair Market Value on the date the Option
is exercised equal to that portion of the purchase price for which payment in
immediately available funds is not made. A dissolution or liquidation of the
Company or, unless the surviving corporation assumes said options, a merger or
consolidation in which the Company is not the surviving corporation, shall cause
each outstanding Option to terminate, provided that during the option period
each Optionee shall have the right prior to such dissolution or liquidation, or
merger or consolidation in which the Company is not the surviving corporation,
to exercise his Option in whole or in part.
10. AMENDMENTS TO THE PLAN. The Committee is authorized to interpret
the Plan and from time to time adopt any rules and regulations for carrying out
the Plan that it may deem advisable. Subject to the approval of the Board, the
Committee may at any time amend, modify, suspend or terminate the Plan. In no
event, however, without the approval of the Company's shareholders, shall any
action of the Committee or the Board result in:
(a) Amending, modifying or altering the eligibility
requirements;
(b) Increasing or decreasing, except as provided in
Section 6 hereof, the maximum number of Shares for
which Options may be issued;
(c) Decreasing the minimum Option Price, as provided
9
<PAGE> 10
in Section 8(a) hereof;
(d) Extending either the maximum period during which an
Option is exercisable as provided in Section 8(b)
hereof or the date on which the Plan shall terminate
as provided in Section 12 hereof; or
(e) Changing the authority of the Committee;
except as necessary to conform the Plan and the option agreements to changes in
the Code or other governing law.
11. INVESTMENT REPRESENTATION, APPROVALS AND LISTING. The Committee may
condition its issue of any Option hereunder upon receipt of an investment
representation from the Optionee which shall be substantially similar to the
following:
Optionee agrees that any shares of common stock of
New Horizons Worldwide, Inc. which he may acquire by virtue of
the exercise of this option shall be acquired for investment
purposes only and not with a view to distribution or resale;
provided, however, that this restriction shall become
inoperative in the event the shares of common stock of New
Horizons Worldwide, Inc. which are subject to this option
shall be registered under the Securities Act of 1933, as
amended, or in the event New Horizons Worldwide, Inc. is
otherwise satisfied that the offer or sale of the shares of
common stock of New Horizons Worldwide, Inc. which are subject
to this option may lawfully be made without registration under
the Securities Act of 1933, as amended.
The Company shall not be required to issue any certificates for Shares upon the
exercise of an Option prior to (i) obtaining any approval from any governmental
agency which the Committee shall, in its sole discretion, determine to be
necessary or advisable, (ii) the admission of such Shares to listing on any
national securities exchange on which the Shares may be listed, (iii) completion
of any registration or other qualification of the Shares under any state or
federal law or ruling or regulations of any governmental body which the
Committee shall, in its sole
10
<PAGE> 11
discretion, determine to be necessary or advisable, or the determination by the
Committee, in its sole discretion, that any registration or other qualification
of the Shares is not necessary or advisable, and (iv) obtaining an investment
representation from the Optionee in the form set forth above or in such other
form as the Committee, in its sole discretion, shall determine to be adequate.
12. General Provisions.
-------------------
(a) OPTION AGREEMENTS. Each Option issued pursuant to the Plan
shall be evidenced by an option agreement in such form as shall be prescribed by
the Committee.
(b) NO RIGHT TO CONTINUE AS AN OUTSIDE DIRECTOR OR INDEPENDENT
CONSULTANT. Nothing in the Plan or in any option agreement shall confer upon any
Outside Director any right to continue to serve as a member of the Board, or to
be entitled to receive any remuneration or benefits not set forth in the Plan or
such option agreement, or to interfere with or limit the right of the
shareholders of the Company to remove him as a member of the Board with or
without cause. Nothing in the Plan or in any option agreement shall confer upon
any Outside Director any right to continue to provide services to the Company or
any Subsidiary as an independent consultant.
(c) OPTIONEE DOES NOT HAVE RIGHTS OF SHAREHOLDER. Nothing
contained in the Plan or in any option agreement shall be construed as entitling
any Optionee to any rights of a shareholder as a result of the issue of an
Option until such time as Shares are actually issued to such Optionee pursuant
to the exercise of
11
<PAGE> 12
the Option.
(d) SUCCESSORS IN INTEREST. The Plan shall be binding upon the
successors and assigns of the Company.
(e) NO LIABILITY UPON DISTRIBUTION OF SHARES. The liability of
the Company under the Plan and any distribution of Shares made hereunder is
limited to the obligations set forth herein with respect to such distribution
and no term or provision of the Plan shall be construed to impose any liability
on the Company or the Committee in favor of any Person with respect to any loss,
cost or expense which the Person may incur in connection with or arising out of
any transaction in connection with the Plan.
(f) USE OF PROCEEDS. The cash proceeds received by the Company
from the issuance of Shares pursuant to the Plan will be used for general
corporate purposes.
(g) EXPENSES. The expenses of administering the Plan shall be
borne by the Company.
(h) CAPTIONS. The captions and section numbers appearing in
the Plan are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of the Plan.
(i) NUMBER. The use of the singular or plural herein shall not
be restrictive as to number and shall be interpreted in all cases as the context
may require.
(j) GENDER. The use of the feminine, masculine or neuter
pronoun shall not be restrictive as to gender and shall be interpreted in all
cases as the context may require.
12
<PAGE> 13
(k) NONQUALIFIED OPTIONS. All Options issued under the Plan
shall, for purposes of the federal income tax, be nonqualified stock options
governed by Section 83 of the Code and regulations promulgated thereunder.
(l) TIME PERIODS; DATES. Any action required to be taken under
the Plan within a certain number of days shall be taken within that number of
calendar days; PROVIDED, however, that if the last day for taking such action
falls on a weekend or a holiday, the period during which such action may be
taken shall be automatically extended to the next business day. If a date
specified for taking any action under the Plan falls on a weekend or a holiday,
such date shall automatically become the next business day.
(m) WITHHOLDING. The right to exercise any Option shall be
conditioned upon the Optionee making appropriate provision, as the Company may
reasonably prescribe, for tax withholding with respect to the exercise of the
Option.
(n) GOVERNING LAW. The Plan shall be governed by and construed
in accordance with the laws of the State of Delaware and any applicable federal
law.
13. TERMINATION OF THE PLAN. The Plan shall terminate at 12:01 a.m. on
January 2, 2000, and thereafter no Options shall be issued under the Plan. All
Options outstanding at the time of termination of the Plan shall continue in
full force and effect in accordance with the terms of the option agreements
governing such Options and the terms and conditions of the Plan.
13
<PAGE> 14
IN WITNESS WHEREOF, NEW HORIZONS WORLDWIDE, INC., by its
appropriate officers duly authorized, has executed this document as of November
26, 1997.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ Curtis Lee Smith
-------------------------------
And: /s/ Thom Bresnan
------------------------------
14
<PAGE> 1
EXHIBIT 4.10
OPTION AGREEMENT
----------------
THIS OPTION AGREEMENT is executed as of _______________, by and between
NEW HORIZONS WORLDWIDE, INC., a Delaware corporation ("Company"), and
____________________________ ("Optionee").
RECITALS
--------
WHEREAS, pursuant to terms of the New Horizons Worldwide, Inc. 1997
Outside Directors Elective Stock Option Plan, Optionee has, in lieu of receiving
other consideration, elected to be issued an Option to purchase Shares; and
WHEREAS, pursuant to terms of the Plan, Company and Optionee must
execute this Option Agreement to set forth the terms and conditions of such
Option;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
1. GRANT OF OPTION
---------------
Subject to all of the terms and provisions of the Plan,
Company hereby grants to Optionee an Option to purchase all or any part of an
aggregate of ___________ Shares.
2. OPTION PRICE
------------
The Option Price for the Shares covered by the Option shall be
$_____ per Share, which is equal to the Fair Market Value of the Shares on
_______________, 199__.
<PAGE> 2
3. INCORPORATION OF PLAN PROVISIONS
--------------------------------
The Plan is incorporated herein by reference, and the Option
shall in all respects be subject to the terms and conditions of the Plan. In the
event of a conflict between the terms and conditions of this Option Agreement
and those of the Plan, the terms and conditions of the Plan shall govern. All
capitalized terms not otherwise defined herein shall have the same meaning as
set forth in the Plan. A copy of the Plan is attached to this Option Agreement
as Exhibit A.
IN WITNESS WHEREOF, the parties hereto have executed this document as
of _____________________, 1997.
NEW HORIZONS WORLDWIDE, INC.
("Company")
By:
------------------------------
---------------------------------
("Optionee")
2
<PAGE> 1
EXHIBIT 4.11
NEW HORIZONS WORLDWIDE, INC.
OMNIBUS EQUITY PLAN
ARTICLE 1. GENERAL
1.1 PURPOSE. The purpose of the New Horizons Worldwide, Inc.
Omnibus Equity Plan (the "Plan") is to provide certain officers, directors and
key personnel, as defined in Section 1.3, of New Horizons Worldwide, Inc. (the
"Company") and its Affiliates (see below), and individuals who provide
significant services for the benefit of the Company and certain of its
Affiliates, with an equity-based incentive to maintain and enhance the
performance and profitability of the Company. It is the further purpose of this
Plan to permit the granting of awards that will constitute performance-based
compensation for certain executive officers, as described in Section 162(m) of
the Internal Revenue Code of 1986, as amended (the "Code"), and regulations
promulgated thereunder.
1.2 Administration.
---------------
(a) The Plan shall be administered by the Compensation
Committee (the "Committee") of the Board of Directors of the Company (the
"Board"), which Committee shall consist of two or more directors. It is intended
that the directors appointed to serve on the Committee shall be "Disinterested
Persons" (within the meaning of Rule 16b-3 promulgated under the Securities
Exchange Act of 1934 (the "Act")) and "Outside Directors" (within the meaning of
Code Section 162(m)), so long as satisfaction of such classifications is
required for the exemptions set forth in such Rule and Section; PROVIDED,
however, that the mere fact that a Committee member shall fail to qualify under
either of these requirements shall not invalidate any award made by the
Committee which award is otherwise validly made under the Plan. The members of
the Committee shall be appointed by, and may be changed at any time and from
time to time in the discretion of, the Board.
(b) The determination of the Committee on all matters relating
to the Plan or any Plan Agreement (see below) shall be conclusive.
(c) No member of the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or any award
hereunder.
(d) Notwithstanding anything to the contrary contained herein,
the Board may, in its sole discretion, at any time and from time to time,
resolve to administer the Plan, in which case,
1
<PAGE> 2
the term Committee as used herein shall be deemed to mean the Board.
(e) For purposes of grants of awards to members of the Board
who are not employed by the Company or an Affiliate, the Board shall serve as
the Committee.
(f) The Company shall bear all costs, including attorneys' and
accountants' fees and expenses, of administering the Plan.
1.3 PERSONS ELIGIBLE FOR AWARDS. Awards under the Plan may be
made to such officers and executive, managerial or professional employees of the
Company or its Affiliates, and individuals (including, without limitation, the
Company's directors) who provide significant services for the benefit of the
Company or its Affiliates, as the Committee shall from time to time in its sole
discretion select; PROVIDED, that officers who are neither employees nor
directors of the Company or any of its Affiliates shall not be eligible to
receive awards under the Plan.
1.4 Types of Awards Under Plan.
---------------------------
(a) Awards may be made under the Plan in the form of (i) stock
Options ("Options"), (ii) stock appreciation rights ("Stock Appreciation
Rights") which may be either (A) related to an Option ("Related Stock
Appreciation Rights"), or (B) not related to an Option ("Unrelated Stock
Appreciation Rights"), and (iii) restricted stock awards ("Restricted Stock
Awards"), all as more fully set forth in Sections 2 and 3.
(b) Options granted under the Plan may be either (i)
nonqualified stock options subject to the provisions of Code Section 83
("Nonqualified Stock Options") or (ii) Options intended to qualify for incentive
stock option treatment described in Code Section 422 ("Incentive Stock
Options").
(c) All Options when granted are intended to be Nonqualified
Stock Options, unless the applicable Plan Agreement explicitly states that the
Option is intended to be an Incentive Stock Option. If an Option is intended to
be an Incentive Stock Option, and if for any reason such Option (or any portion
thereof) shall not qualify as an Incentive Stock Option, then, to the extent of
such nonqualification, such Option (or portion) shall be regarded as a
Nonqualified Stock Option appropriately granted under the Plan, provided that
such Option (or portion) otherwise meets the Plan's requirements relating to
Nonqualified Stock Options.
1.5 Shares Available for Awards.
----------------------------
(a) Subject to Section 4.5 (relating to adjustments upon
changes in capitalization), as of any date the total number
2
<PAGE> 3
of Shares with respect to which awards may be granted under the Plan, shall
equal the excess (if any) of 1,000,000 Shares, over (i) the number of Shares
subject to outstanding awards, (ii) the number of Shares in respect of which
Options and Stock Appreciation Rights have been exercised, and (iii) the number
of Shares issued subject to forfeiture restrictions which have lapsed. In
accordance with (and without limitation upon) the preceding sentence, awards may
be granted in respect of Shares covered by previously granted awards that have
expired, terminated or been canceled for any reason whatsoever (other than by
reason of exercise or vesting) and with respect to which Shares a grantee has
received no benefits of ownership (other than voting rights and dividends that
were forfeited on such expiration, termination or cancellation).
(b) The aggregate number of Shares which may be the subject of
awards under the Plan in respect of any person shall not, in respect of any
calendar year, exceed 300,000 Shares and shall not, in the aggregate, exceed
500,000 Shares.
(c) Shares that shall be subject to issuance pursuant to the
Plan shall be authorized and unissued, or treasury or reacquired Shares, or any
combination thereof.
(d) Without limiting the generality of the foregoing, the
Committee may, with the grantee's consent, cancel any award under the Plan and
issue a new award in substitution therefor; PROVIDED, that the substituted award
shall satisfy all applicable Plan requirements as of the date such new award is
made. The foregoing is not intended to prevent equitable adjustment of awards
upon the occurrence of certain events as herein provided, including, without
limitation, adjustments pursuant to Section 4.5.
1.6 Definitions of Certain Terms.
-----------------------------
(a) The term "Affiliate" means any person or entity which, at
the time of reference, directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company.
(b) The term "Change in Control" means:
(i) The acquisition by any individual, entity or
group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Act (a "Person")
of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Act) of
30% or more of the then outstanding Shares;
PROVIDED, that for this purpose any Shares
owned or acquired by Curtis Lee Smith, Jr.
and/or Stuart O. Smith shall be ignored;
PROVIDED, further, that for purposes of this
3
<PAGE> 4
subsection (i), the following acquisitions
shall not constitute a Change of Control:
(A) any acquisition directly from the
Company; or
(B) any acquisition by the Company; or
(C) any acquisition by any employee
benefit plan (or related trust)
sponsored or maintained by the
Company or any corporation
controlled by the Company; or
(D) any acquisition by any corporation
pursuant to a transaction which
complies with clauses (A)(i) and
(A)(ii) of subsection (iii) hereof;
or
(ii) Individuals who, as of the date of the most
recent amendment hereof, constitute the
Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of
the Board; PROVIDED, however, that any
individual becoming a director subsequent
to the date of the most recent amendment
hereof whose election, or nomination for
election by the Company's stockholders, was
approved by a vote of at least a majority
of the directors then comprising the
Incumbent Board shall be considered as
though such individual were a member of the
Incumbent Board, but excluding, for this
purpose, any such individual whose initial
assumption of office occurs as a result of
an actual or threatened election contest
with respect to the election or removal of
directors or other actual or threatened
solicitation of proxies or consents by or
on behalf of a person or entity other than
the Board; or
(iii) Consummation of a reorganization, merger or
consolidation involving the Company or any
Affiliate or sale or other disposition of
all or substantially all of the assets of
the Company (a "Business Combination"), in
each case, unless, following such Business
Combination, (A) either (1) all or
substantially all of the individuals and
entities who were the beneficial owners,
respectively, of the Shares immediately
prior to such Business Combination
beneficially own, directly or indirectly,
more than 50% of, respectively, the then
outstanding Shares
4
<PAGE> 5
and the combined voting power of the then
outstanding voting securities entitled to
vote generally in the election of
directors, as the case may be, of the
corporation resulting from such Business
Combination (including, without limitation,
a corporation which as a result of such
transactions owns the Company or all or
substantially all of the Company's assets
either directly or through one or more
subsidiaries) in substantially the same
proportions as their ownership immediately
prior to such Business Combination of the
Shares or (2) at least a majority of the
members of the board of directors of the
corporation resulting from such Business
Combination were members of the Incumbent
Board at the time of the execution of the
initial agreement, or at the time of the
action of the Board providing for such
Business Combination, and (B) no person
(excluding any corporation resulting from
such Business Combination or any employee
benefit plan or related trust of the
Company or such corporation resulting from
such Business Combination) beneficially
owns, directly or indirectly, 30% or more
of, respectively, the then outstanding
shares of common stock of the corporation
resulting from such Business Combination or
the combined voting power of the then
outstanding voting securities of such
corporation except to the extent that such
ownership existed prior to the Business
Combination; or
(iv) A complete liquidation or dissolution of
the Company.
(c) The term "Code" means the Internal Revenue Code of 1986,
as amended, and any successor statute.
(d) The term "Fair Market Value" means, in respect of a
Share, its fair market value as determined in the reasonable judgment of the
Committee at any time.
(e) The term "Shares" means shares of the $.01 par value
common stock of the Company, or any security into which such shares may be
converted by reason of any transaction or event of the type referred to in
Section 4.5 of this Plan.
1.7 Agreements Evidencing Awards.
-----------------------------
(a) Options, Stock Appreciation Rights and Restricted Stock
Awards granted under the Plan shall be evidenced by written agreements. Any such
written agreements shall (i) contain such
5
<PAGE> 6
provisions not inconsistent with the terms of the Plan as the Committee may in
its sole discretion deem necessary or desirable and (ii) be referred to herein
as "Plan Agreements".
(b) Each Plan Agreement shall set forth the number of Shares
subject to the award granted thereby.
(c) Each Plan Agreement with respect to the granting of a
related stock appreciation right shall set forth the number of Shares subject to
the related Option which shall also be subject to the related stock appreciation
right granted thereby.
(d) Each Plan Agreement with respect to the granting of an
Option shall set forth the amount payable by the grantee to the Company in
connection with the exercise of the Option evidenced thereby (the "Option
Exercise Price").
(e) Each Plan Agreement with respect to a stock appreciation
right shall set forth the amount (the "Appreciation Base") over which
appreciation will be measured upon exercise of the stock appreciation right
evidenced thereby. The Appreciation Base per Share subject to a Stock
Appreciation Right shall not, in the case of a Related Stock Appreciation Right,
be less than the Option Exercise Price per Share under the related Option.
ARTICLE 2. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
2.1 GRANT OF STOCK OPTIONS. The Committee may grant Options to
purchase Shares in such amounts and subject to such terms and conditions as the
Committee shall from time to time in its sole discretion determine, subject to
the terms of the Plan.
2.2 Grant of Stock Appreciation Rights.
-----------------------------------
(a) RELATED STOCK APPRECIATION RIGHTS. The Committee may grant
a Related Stock Appreciation Right in connection with all or any part of an
Option granted under the Plan, either at the time the related Option is granted
or any time thereafter prior to the exercise, termination or cancellation of
such Option, and subject to such terms and conditions as the Committee shall
from time to time in its sole discretion determine, consistent with the terms of
the Plan. The grantee of a Related Stock Appreciation Right shall, subject to
the terms of the Plan and the applicable Plan Agreement, have the right to
surrender to the Company for cancellation all or a portion of the related Option
granted under the Plan, but only to the extent that such Option is then
exercisable, and to be paid therefor an amount equal to the excess (if any) of
(i) the aggregate Fair Market Value of the Shares subject to such Option or
portion thereof (determined as of the date of exercise of such Stock
Appreciation Right), over (ii) the aggregate Appreciation Base of the Shares
subject to such Stock Appreciation Right or portion thereof.
6
<PAGE> 7
(b) UNRELATED STOCK APPRECIATION RIGHTS. The Committee may
grant an Unrelated Stock Appreciation Right in such amount and subject to such
terms and conditions as the Committee shall from time to time in its sole
discretion determine, consistent with the terms of the Plan. The grantee of an
Unrelated Stock Appreciation Right shall, subject to the terms of the Plan and
the applicable Plan Agreement, have the right to surrender to the Company for
cancellation all or a portion of such Stock Appreciation Right, but only to the
extent that such Stock Appreciation Right is then exercisable, and to be paid
therefor an amount equal to the excess (if any) of: (i) the aggregate Fair
Market Value of the Shares subject to such Stock Appreciation Right or portion
thereof (determined as of the date of exercise of such Stock Appreciation
Right), over (ii) the aggregate Appreciation Base of the Shares subject to such
Stock Appreciation Right or portion thereof.
2.3 EXERCISABILITY OF OPTIONS AND STOCK APPRECIATION RIGHTS.
Subject to the other provisions of the Plan:
(a) EXERCISABILITY DETERMINED BY PLAN AGREEMENT. Each Plan
Agreement shall set forth the period during which and the conditions subject to
which the Option or Stock Appreciation Right evidenced thereby shall be
exercisable, as determined by the Committee in its discretion.
(b) EXERCISE OF RELATED STOCK APPRECIATION RIGHT. Unless the
applicable Plan Agreement otherwise provides, a Related Stock Appreciation Right
shall be exercisable at any time during the period that the related Option may
be exercised.
(c) PARTIAL EXERCISE PERMITTED. Unless the applicable Plan
Agreement otherwise provides, an Option or Stock Appreciation Right granted
under the Plan may be exercised from time to time as to all or part of the full
number of Shares as to which such Option or Stock Appreciation Right shall then
be exercisable.
(d) Notice of Exercise; Exercise Date.
----------------------------------
(i) An Option or Stock Appreciation Right shall
be exercisable by the filing of a written
notice of exercise with the Company, on such
form and in such manner as the Committee
shall in its sole discretion prescribe, and
by payment in accordance with Section 2.6.
(ii) Unless the applicable Plan Agreement
otherwise provides, or the Committee in its
sole discretion otherwise determines, the
date of exercise of an Option or Stock
Appreciation Right shall be the date the
Company receives such written notice of
exercise and payment.
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<PAGE> 8
2.4 Exercise of Options.
--------------------
(a) TENDER DUE UPON NOTICE OF EXERCISE. Unless the applicable
Plan Agreement otherwise provides or the Committee in its sole discretion
otherwise determines, any notice of exercise of an Option shall be accompanied
by payment of the full purchase price for the Shares being purchased.
(b) MANNER OF PAYMENT. Payment of the Option Exercise Price
shall be made in any combination of the following:
(i) by certified or official bank check payable
to the Company (or the equivalent thereof
acceptable to the Committee);
(ii) by personal check (subject to collection),
which may in the Committee's discretion be
deemed conditional;
(iii) if and to the extent provided in the
applicable Plan Agreement or with the
consent of the Committee in its sole
discretion, by delivery of previously
acquired Shares owned by the grantee for at
least six months (or such other period as
the Committee may prescribe) having a Fair
Market Value (determined as of the Option
exercise date) equal to the portion of the
Option exercise price being paid thereby,
provided that the Committee may require the
grantee to furnish an opinion of counsel
acceptable to the Committee to the effect
that such delivery would not result in the
grantee incurring any liability under
Section 16 of the Act and does not require
any Consent (see below);
(iv) if and to the extent provided in the
applicable Plan Agreement or with the
consent of the Committee in its sole
discretion, by withholding Shares from the
Shares otherwise issuable pursuant to the
exercise of the Option, where the amount
attributable to any Share so withheld shall
be equal to the difference between the Fair
Market Value of the Share (determined as of
the Option exercise date) and the Option
Exercise Price; and
(v) with the consent of the Committee in its
sole discretion, by the full recourse
promissory note and agreement of the grantee
providing for payment with interest on the
unpaid balance accruing at a rate not less
than that needed to avoid the imputation of
income
8
<PAGE> 9
under terms of the Code and upon such terms
and conditions as the Committee may
determine.
(c) CASHLESS EXERCISE. Payment in accordance with Section
2.6(b) may be deemed to be satisfied, if and to the extent provided in the
applicable Plan Agreement or with the consent of the Committee in its sole
discretion, by delivery to the Company of an assignment of a sufficient amount
of the proceeds from the sale of Shares acquired upon exercise to pay for all of
the Shares acquired upon exercise and an authorization to the broker or selling
agent to pay that amount to the Company, which sale shall be made at the
grantee's direction at the time of exercise; PROVIDED, that the Committee may
require the grantee to furnish an opinion of counsel acceptable to the Committee
to the effect that such delivery would not result in the grantee incurring any
liability under Section 16 of the Act and does not require any Consent.
(d) ISSUANCE OF SHARES. As soon as practicable after receipt
of full payment, the Company shall, subject to the provisions of Section 4.2,
deliver to the grantee one or more certificates for the Shares so purchased,
which certificates may bear such legends as the Company may deem appropriate
concerning restrictions on the disposition of the Shares in accordance with
applicable securities laws, rules and regulations or otherwise.
2.5 Exercise of Related Stock Appreciation Rights.
----------------------------------------------
(a) Payment due to the grantee upon exercise of a Stock
Appreciation Right shall be made in cash and/or in Shares (valued at the Fair
Market Value thereof as of the date of exercise) as determined by the Committee
in its sole discretion.
(b) Upon any exercise of a Related Stock Appreciation Right or
any portion thereof, the number of Shares subject to the related Option shall be
reduced by the number of Shares in respect of which such Stock Appreciation
Right shall have been exercised.
2.6 TERMINATION OF EMPLOYMENT. Subject to the other provisions
of the Plan and unless the applicable Plan Agreement otherwise provides, all
Options and Stock Appreciation Rights granted to a grantee shall terminate upon
the grantee's ceasing to perform services (whether as an employee or otherwise)
for the Company and all Affiliates.
2.7 SPECIAL ISO REQUIREMENTS. In order for a grantee to
receive special tax treatment with respect to stock acquired under an Option
intended to be an Incentive Stock Option, the grantee of such Option must be, at
all times during the period beginning on the date of grant and ending on the day
three months before the date of exercise of such Option, an employee of the
Company or any of the Company's parent or subsidiary corporations
9
<PAGE> 10
(within the meaning of Code Section 424(f)), or of a corporation or a parent or
subsidiary corporation of such corporation issuing or assuming a stock option in
a transaction to which Code Section 424(a) applies. Notwithstanding any other
provision of the Plan, no Plan Agreement shall permit an Incentive Stock Option
to be exercisable more than ten years after the date of grant. The aggregate
Fair Market Value (as of the effective date of grant of Incentive Stock Options)
of Shares with respect to which Incentive Stock Options granted to a grantee
under the Plan are exercisable for the first time by such grantee during any
calendar year shall not exceed $100,000. If an Option granted under the Plan is
intended to be an Incentive Stock Option, and if the grantee, at the time of
grant, owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the grantee's employer corporation or of
its parent or subsidiary corporation, then (i) the Option Exercise Price shall
in no event be less than one hundred ten percent (110%) of the Fair Market Value
on the date of such grant and (ii) such Option shall not be exercisable after
the expiration of five years after the date such Option is granted.
ARTICLE 3. AWARDS OTHER THAN STOCK OPTIONS
AND STOCK APPRECIATION RIGHTS
3.1 Restricted Stock Awards.
------------------------
(a) GRANT OF AWARDS. The Committee may grant Restricted Stock
Awards under the Plan, alone or in tandem with other awards, in such amounts and
subject to such terms and conditions as the Committee shall from time to time in
its sole discretion determine. The vesting of a Restricted Stock Award granted
under the Plan may be conditioned upon the completion of a specified period of
employment with the Company or any Affiliate, upon the attainment of specified
performance goals, and/or upon such other criteria as the Committee may
determine in its sole discretion.
(b) PAYMENT. Each Plan Agreement with respect to a Restricted
Stock Award shall set forth the amount (if any) to be paid by the grantee with
respect to such award. If a grantee makes any payment in respect of a Restricted
Stock Award which does not vest, appropriate payment may be made to the grantee
following the forfeiture of such Restricted Stock Award on such terms and
conditions as the Committee may determine.
(c) FORFEITURE UPON TERMINATION OF EMPLOYMENT. Unless the
applicable Plan Agreement otherwise provides or the Committee otherwise
determines, (i) if a grantee's employment or other provision of service
terminates for any reason (including death) before all of his Restricted Stock
Awards have vested, the unvested portion of such Restricted Stock Awards shall
terminate
10
<PAGE> 11
and expire upon such termination, and (ii) in the event any condition to the
vesting of Restricted Stock Awards is not satisfied within the period of time
permitted therefor, such unvested Shares shall be returned to the Company.
(d) ISSUANCE OF SHARES. The Committee may provide that one or
more Share certificates representing Restricted Stock Awards shall, on the date
of the Restricted Stock Award, be registered in the grantee's name and bear an
appropriate legend specifying that such Shares are not transferable and are
subject to the terms and conditions of the Plan and the applicable Plan
Agreement, or that no such Share certificate shall be issued by the Company on
behalf of the grantee until such Shares vest, all on such terms and conditions
as the Committee may determine. Unless the applicable Plan Agreement otherwise
provides, no Share issued pursuant to a Restricted Stock Award may be assigned,
transferred, otherwise encumbered or disposed of by the grantee until such Share
has vested in accordance with the terms of the applicable Plan Agreement.
Subject to the provisions of Section 4.2, as soon as practicable after any
Restricted Stock Award shall vest, the Company shall issue or reissue to the
grantee (or to the grantee's designated beneficiary in the event of the
grantee's death) one or more certificates for the Shares represented by such
Restricted Stock Award.
(e) GRANTEES' RIGHTS REGARDING RESTRICTED STOCK. Unless the
applicable Plan Agreement otherwise provides, in respect of a Restricted Stock
Award for which a certificate for Shares was registered in the grantee's name,
(i) the grantee may vote and receive dividends on such Shares; and (ii) any
Shares distributed with respect to such Shares shall be subject to the same
restrictions as such Shares, as set forth in the applicable Plan Agreement.
ARTICLE 4. MISCELLANEOUS
4.1 Amendment of the Plan; Modification of Awards.
----------------------------------------------
(a) PLAN AMENDMENTS. The Board may, without stockholder
approval, at any time and from time to time, suspend, discontinue or amend the
Plan in any respect whatsoever, except that no such amendment shall impair any
rights under any award theretofore made under the Plan without the consent of
the grantee of such award. Furthermore, except as and to the extent otherwise
permitted by this Plan, no such amendment shall, without stockholder approval:
(i) materially increase the benefits accruing
to grantees under the Plan;
(ii) increase beyond the amounts set forth in
Section 1.5 the number of Shares in
respect of which awards may be issued
under the Plan;
11
<PAGE> 12
(iii) increase beyond the amounts set forth in
Section 1.5 the maximum number of Shares
which may he made subject to awards to an
individual;
(iv) modify the designation in Section 1.3 of
the classes of persons eligible to receive
awards under the Plan;
(v) extend the term of the Plan beyond the
period set forth in Section 4.14.
(b) AWARD MODIFICATIONS. Subject to the terms and conditions
of the Plan, the Committee may amend an outstanding Plan Agreement with a
grantee, including, without limitation, any amendment which would (i) accelerate
the time or times at which an award may vest or become exercisable and/or (ii)
extend the scheduled termination or expiration date of the award and/or defer
the delivery of cash or Shares upon exercise of an Option or Stock Appreciation
Right, with delivery to be made later in the form of either installments or a
single delivery; PROVIDED, however, that no modification having a material
adverse effect upon the interest of a grantee in respect of an award shall be
made without the consent of such grantee.
4.2 Restrictions.
-------------
(a) CONSENT REQUIREMENTS. If the Committee shall at any time
determine that any Consent (as hereinafter defined) is necessary or desirable as
a condition of, or in connection with, the granting of any award under the Plan,
the acquisition, issuance or purchase of Shares or other rights hereunder or the
taking of any other action hereunder (each such action being hereinafter
referred to as a "Plan Action"), then such Plan Action shall not be taken, in
whole or in part, unless and until such Consent shall have been effected or
obtained to the full satisfaction of the Committee.
(b) CONSENT DEFINED. The term "Consent" as used herein with
respect to any Plan Action means (i) any and all listings, registrations or
qualifications in respect thereof upon any securities exchange or other
self-regulatory organization or under any federal, state or local law, rule or
regulation, (ii) the expiration, elimination or satisfaction of any
prohibitions, restrictions or limitations under any federal, state or local law,
rule or regulation or the rules of any securities exchange or other
self-regulatory organization, (iii) any and all written agreements and
representations by the grantee with respect to the disposition of Shares, or
with respect to any other matter, which the Committee shall deem necessary or
desirable to comply with the terms of any such listing, registration or
qualification or to obtain an exemption from the requirement that any such
listing, qualification or registration be made, and (iv) any and all consents,
clearances
12
<PAGE> 13
and approvals in respect of a Plan Action by any governmental or other
regulatory bodies or any parties to any loan agreements or other contractual
obligations of the Company or any Affiliate.
4.3 Transferability.
----------------
(a) Except as provided in this Section 4.3, no award granted
under this Plan shall be transferable by a grantee other than by will or the
laws of the descent and distribution, and Options and Stock Appreciation Rights
shall be exercisable during a grantee's lifetime only by the grantee or, in the
event of the grantee's legal incapacity, by his guardian or legal representative
acting in a fiduciary capacity on behalf of the grantee under state law.
(b) The Committee may expressly provide in a Plan Agreement or
other written form of consent that a grantee may transfer a Nonqualified Stock
Option to his spouse or lineal descendants ("Family Members"), or a trust for
the exclusive benefit of the grantee and/or Family Members, or a partnership or
other entity affiliated with the grantee that may be approved by the Committee.
Subsequent transfers of any such Nonqualified Stock Option shall be prohibited
except in accordance with this Section 4.3(b). All terms and conditions of any
such Nonqualified Stock Option, including provisions relating to the termination
of the grantee's employment or service with the Company and its Affiliates,
shall continue to apply following a transfer made in accordance with this
Section 4.3(b).
(c) Any award made under this Plan may provide that all or any
part of the Shares that are to be issued or transferred by the Company upon the
exercise of Options or Stock Appreciation Rights, or upon the vesting of Shares
issued pursuant to a Restricted Stock Award, may be subject to further
restrictions upon transfer.
4.4 Withholding Taxes.
------------------
(a) Whenever Shares are to be delivered pursuant to an award,
the Committee may require as a condition of delivery that the grantee remit an
amount sufficient to satisfy all federal, state and other governmental
withholding tax requirements related thereto. Whenever cash is to be paid under
the Plan (whether upon the exercise of a Stock Appreciation Right or otherwise),
the Company may, as a condition of its payment, deduct therefrom, or from any
salary or other payments due to the grantee, an amount sufficient to satisfy all
federal, state and other governmental withholding tax requirements related
thereto or to the delivery of any Shares under the Plan.
(b) Without limiting the generality of the foregoing, (i) a
grantee may elect to satisfy all or part of the foregoing withholding
requirements by delivery of unrestricted Shares owned by the grantee for at
least six months (or such other
13
<PAGE> 14
period as the Committee may determine) having a Fair Market Value (determined as
of the date of such delivery) equal to all or part of the amount to be so
withheld; PROVIDED, that the Committee may require, as a condition of accepting
any such delivery, the grantee to furnish an opinion of counsel acceptable to
the Committee to the effect that such delivery would not result in the grantee
incurring any liability under Section 16 of the Act and (ii) the Committee may
permit any such delivery to be made by withholding Shares from the Shares
otherwise issuable pursuant to the award giving rise to the tax withholding
obligation (in which event the date of delivery shall be deemed the date such
withholding obligation arose.
4.5 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If and to the
extent specified by the Committee, the number of Shares which may be issued
pursuant to awards under the Plan, the maximum number of Shares subject to
awards which may be granted to any one person in any calendar year, the number
of Shares subject to any award, the Option Exercise Price and Appreciation Base
in respect of awards previously granted under the Plan, and the amount payable
by a grantee in respect of an award, shall be appropriately adjusted (as the
Committee may determine) for any change in the number of issued Shares resulting
from the subdivision or combination of Shares or other capital adjustments, or
the payment of a stock dividend after the effective date of the Plan, or other
change in such Shares effected without receipt of consideration by the Company;
PROVIDED, that any awards covering fractional Shares resulting from any such
adjustment shall be eliminated; and PROVIDED, further, that each Incentive Stock
Option granted under the Plan shall not be adjusted in a manner that would cause
such Option to fail to continue to qualify as an Incentive Stock Option within
the meaning of Code Section 422. Adjustments under this Section 4.5 shall be
made by the Committee, whose determination as to what adjustments shall be made,
and the extent thereof, shall be final, binding and conclusive.
4.6 RIGHT OF DISCHARGE RESERVED. Nothing in the Plan or in any
Plan agreement shall confer upon any person the right to continue in the
employment of the Company or an Affiliate or affect any right which the Company
or an Affiliate may have to terminate the employment of such person.
4.7 NO RIGHTS AS A STOCKHOLDER. No grantee or other person
shall have any of the rights of a stockholder of the Company with respect to
Shares subject to an award until the issuance of a stock certificate to him for
such Shares. Except as otherwise provided in Section 4.5, no adjustment shall be
made for dividends, distributions or other rights (whether ordinary or
extraordinary, and whether in cash, securities or other property) for which the
record date is prior to the date such stock certificate is issued.
14
<PAGE> 15
4.8 Nature of Payments.
-------------------
(a) Any and all awards or payments hereunder shall be granted,
issued, delivered or paid, as the case may be, in consideration of services
performed by the grantee for the Company or its Affiliates.
(b) No such awards and payments shall be, unless
otherwise agreed to by the Company, taken into account in computing the
grantee's salary or compensation for the purposes of determining any benefits
under (i) any pension, retirement, life insurance or other benefit plan of the
Company or any Affiliate or (ii) any agreement between the Company or any
Affiliate and the grantee.
(c) By accepting an award under the Plan, the grantee shall
thereby waive any claim to continued exercise or vesting of an award or to
damages or severance entitlement related to non-continuation of the award beyond
the period provided herein or in the applicable Plan Agreement, notwithstanding
any contrary provision in any written employment contract with the grantee,
whether any such contract is executed before or after the date of the award.
4.9 NON-UNIFORM DETERMINATIONS. The Committee's determinations
under the Plan need not be uniform and may be made by it selectively among
persons who receive, or are eligible to receive, awards under the Plan (whether
or not such persons are similarly situated). Without limiting the generality of
the foregoing, the Committee shall be entitled, among other things, to make
non-uniform and selective determinations, and to enter into non-uniform and
selective Plan Agreements, as to (a) the persons to receive awards under the
Plan, (b) the terms and provisions of awards under the Plan, and (c) the
exercise by the Committee of its discretion in respect of paying either cash or
Shares upon the exercise of Stock Appreciation Rights pursuant to the terms of
the Plan.
4.10 OTHER PAYMENTS OR AWARDS. Nothing contained in the Plan
shall be deemed in any way to limit or restrict the Company, any Affiliate, or
the Committee from making any award or payment to any person under any other
plan, arrangement or understanding, whether now existing or hereafter in effect.
4.11 Effect of Change in Control.
----------------------------
(a) In the event of a Change in Control, or in the event that
the Board shall propose that the Company enter into a transaction that would
result in a Change in Control, the Committee may in its discretion, by written
notice to a grantee, provide that any one or more of the following conditions
shall apply: (a) the Options or Stock Appreciation Rights shall become
immediately exercisable by any grantees and/or that such Options or Stock
Appreciation Rights shall terminate if not exercised
15
<PAGE> 16
prior or in connection with the Change in Control or within some other
prescribed period of time, (b) such Options or Stock Appreciation Rights shall
be assumed by the successor entity or parent of such successor entity, or (c)
substantially equivalent options or stock appreciation rights shall be
substituted by the successor entity or a parent of such successor entity. The
Committee may also, in its discretion, by written notice to a grantee provide
that all or some of the restrictions on any of the grantee's awards shall lapse
in the event of a Change in Control and upon such terms and conditions as the
Committee may determine.
(b) Whenever deemed appropriate by the Committee, the actions
referred to in Section 4.1l(a) may be made conditional upon the consummation of
the Change in Control.
4.12 SECTION HEADINGS. The section headings contained herein
are for the purposes of convenience only and are not intended to define or limit
the contents of said sections.
4.13 GOVERNING LAW. The Plan shall be governed by the laws of
the State of Delaware without giving effect to any choice of laws provisions.
4.14 Effective Date and Term of Plan.
--------------------------------
(a) The Plan shall be deemed adopted and become effective upon
the approval thereof by the Board or such other date as the Board shall
determine, subject to approval of the stockholders of the Company at the next
Annual Meeting of Stockholders. The Committee may grant awards subject to the
condition that this Plan shall be approved by the stockholders of the Company as
set forth in the preceding sentence.
(b) The Plan shall terminate upon the earlier of (i) ten years
after the earlier of the date on which it becomes effective or is approved by
the Company's stockholders, and (ii) such date as the Board shall determine, and
no awards shall thereafter be made under the Plan. Notwithstanding the
foregoing, all awards made under the Plan prior to such termination date shall
remain in effect until such awards have been satisfied or terminated in
accordance with the terms and provisions of the Plan and the applicable Plan
Agreement.
16
<PAGE> 1
[CALFEE, HALTER & GRIWOLD LLP LETTERHEAD]
ATTORNEYS AT LAW
___________________________________________ EXHIBIT 5.1
1400 McDonald Investment Center
800 Superior Avenue Cleveland, Ohio 44114-2688
216/622-8200 Fax 216/241-0816
June 11, 1998
New Horizons Worldwide, Inc.
500 Campus Drive
Morganville, New Jersey 07751
We are acting as counsel for New Horizons Worldwide, Inc., a Delaware
corporation (the "Company"), in connection with the sale from time to time of
an aggregate of 1,340,000 shares of Common Stock (the "Shares"), 40,000 of
which may be issued upon the exercise of options granted to the non-employee
directors of the Company on September 19, 1996 (the "Director Options"),
300,000 of which may be issued pursuant to the New Horizons Worldwide, Inc.
1997 Outside Directors Elective Stock Option Plan (the "1997 Directors Plan")
and 1,000,000 of which may be issued pursuant to the New Horizons Worldwide,
Inc. Omnibus Equity Plan (the "Omnibus Plan," and together with the 1997
Directors Plan, the "Plans").
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion, and based thereon we are of the
opinion that the Shares are duly authorized and, when issued in accordance with
the terms of the Director Options and Plans, will be validly issued, fully paid
and nonassessable.
This opinion is limited to the General Corporation Law of the State of
Delaware, and we express no view as to the effect of any other law on the
opinions set forth herein.
This opinion is intended solely for your use in the above-described
transaction and may not be reproduced, filed publicly or relied upon by any
other person for any purpose without the express written consent of the
undersigned.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement on Form S-8 by the Company to effect the registration of
the Shares under the Securities Act of 1933, as amended.
Very truly yours,
/s/ Calfee, Halter & Griswold LLP
CALFEE, HALTER & GRISWOLD LLP
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
New Horizons Worldwide, Inc. on Form S-8 of our report dated February 27, 1998,
appearing in the Annual Report on Form 10-K for New Horizons Worldwide, Inc.
for the year ended December 31, 1997.
/s/ Deloitte & Touche LLP
Costa Mesa, California
June 8, 1998
