<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_______________________
ACCUSTAFF INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 59-3116655
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
6440 ATLANTIC BOULEVARD, JACKSONVILLE, FLORIDA 32211
(904) 725-5574
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CAREER HORIZONS, INC. 1990 TERMINAL VALUE STOCK OPTION PLAN
CAREER HORIZONS 1993 STOCK OPTION AND PERFORMANCE AWARD PLAN
(ASSUMED BY ACCUSTAFF INCORPORATED)
(FULL TITLE OF THE PLAN)
_______________________
DEREK E. DEWAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ACCUSTAFF INCORPORATED
6440 ATLANTIC BOULEVARD
JACKSONVILLE, FLORIDA 32211
(904) 725-5574
(904) 725-8513 (FAX)
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JEFFREY A. ALLRED, ESQ.
TIMOTHY MANN, JR., ESQ.
ALSTON & BIRD
ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
(404) 881-7000
(404) 881-7777 (FAX)
_______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING PRICE (2) AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE (2) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 2,258,500 $9.20 $20,778,200 $6,296.43
=================================================================================================================
</TABLE>
(1) This Registration Statement covers the registration of 11,915 shares that
may be issuable under Career Horizons, Inc. 1990 Terminal Value Stock Option
plan, 2,246,585 shares that may be issuable under Career Horizons 1993 Stock
Option and Performance Award Plan (collectively, the "Plans") and any
additional shares that may heretofore become issuable as a result of the
adjustment and antidilution provisions of the plans pursuant to Rule 416(a).
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) and based upon the average exercise price at
which such outstanding options to purchase shares of the Registrant's Common
Stock under the plans may be exercised.
<PAGE>
INTRODUCTORY STATEMENT
AccuStaff Incorporated ("AccuStaff") assumed the obligation to issue
shares of its common stock, par value $.01 per share ("AccuStaff Common Stock"),
upon the exercise of outstanding stock options granted under the Career
Horizons, Inc. 1990 Terminal Value Stock Option Plan and Career Horizons 1993
Stock Option and Performance Award Plan (collectively, the "Plans") pursuant to
an Agreement and Plan of Merger, dated as of August 25, 1996 (the "Merger
Agreement") by and among Career Horizons, Inc. ("Career"), AccuStaff, and
Sunrise Merger Corporation, a Delaware corporation and wholly owned subsidiary
of AccuStaff ("Newco"), which provides for, among other things, at the effective
time of the Merger, (i) the merger of Newco with and into Career (the "Merger"),
with Career becoming a wholly owned subsidiary of AccuStaff, and (ii) the
conversion of each outstanding share of common stock, par value $.01 per share,
of Career ("Career Common Stock") (excluding shares held by Career, AccuStaff or
any of their respective subsidiaries) into the right to receive 1.53 shares of
AccuStaff Common Stock, with cash being paid in lieu of any fractional share
interest.
Prior to the Merger, shares of Career Common Stock issuable upon
exercise of options granted under the Plans were registered by Career under a
Registration Statement on Form S-8 (File No. 33-80499).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting Part I of this Registration Statement will be
sent or given to participants in the Plan as specified by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by AccuStaff Incorporation (the "Company")
with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the quarters ended March
31, 1996 and June 30, 1996, and the following Current Reports on Form 8-K: Form
8-K/A dated July 2, 1995; Form 8-K/A dated October 31, 1995; Form 8-K/A dated
December 13, 1995; Form 8-K dated January 2, 1996; Form 8-K/A dated January 2,
1996; Form 8-K dated January 3, 1996; Form 8-K dated February 19, 1996; Form 8-
K/A dated February 19, 1996; Form 8-K dated February 20, 1996; Form 8-K dated
June 19, 1996; Form 8-K/A dated June 19, 1996; Form 8-K dated August 25, 1996;
Form 8-K dated September 16, 1996; and Form 8-K dated September 16, 1996.
(c) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A dated July 5, 1994, filed pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement, and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the issuance of the securities being registered hereby has
been passed upon by the law firm of Alston & Bird, counsel for the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 10 of the Company's Bylaws requires the Company to indemnify a
present or former director of the Company for liabilities, including legal
expenses, arising by reason of service in such capacity if such person shall
have acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and in any criminal
proceeding if such person had no reasonable cause to believe his conduct was
unlawful. However, under the Florida Business Corporations Act (the "Florida
Act") no indemnification may be made with respect to any matter as to which
the actions of such director shall have been adjudged to constitute (i) a
II-1
<PAGE>
violation of criminal law unless the individual had reasonable cause to
believe his conduct was lawful or had no reason to believe his conduct was
unlawful; (ii) a transaction from which the individual derived an improper
personal benefit; (iii) a circumstance under which the liability provisions of
Section 607.0834 of the Florida Act, which relates to unlawful distribution of
company assets, as presently or hereinafter enacted, are applicable; or (iv)
willful misconduct or conscious disregard of the best interests of the
corporation in certain proceedings. Moreover, in the case of actions brought
by or in the right of the corporation, indemnification may be made if the
person acted in good faith, and in a manner that such person reasonably
believed to be in, or not opposed to, the best interests of the corporation;
provided, however, that no indemnification may be made for any claim, issue or
matter as to which such person shall have been adjudged to be liable, unless,
and only to the extent that, the court in which the judgment was made or
another court of competent jurisdiction determines that such person is
entitled to indemnification.
The Company has also entered into agreements with each of its current
directors and executive officers pursuant to which it is obligated to
indemnify those persons to the fullest extent authorized by law and to advance
payments to cover defense costs against an unsecured obligation to repay such
advances if it is ultimately determined that the recipient of the advance is
not entitled to indemnification. The indemnification agreements provide that
no indemnification or advancement of expenses shall be made (a) if a final
adjudication establishes that the indemnification actions or omissions were
material to the cause of certain adjudicated and constitute (i) a violation of
criminal law (unless the indemnitee had reasonable cause to believe that his
actions were lawful), (ii) a transaction from which the indemnitee derived an
improper personal benefit, (iii) an unlawful distribution or dividend within
the Florida Act, or (iv) willful misconduct or a conscious disregard for the
joint interests of the Company in a derivative or shareholder action, (b) for
liability under Section 16(b) of the Exchange Act, or (c) if a final decision
by a court having jurisdiction in the matter determines that indemnification
is not lawful.
In addition, pursuant to the authority of Florida law, the Articles of
Incorporation of the Company also eliminates the monetary liability of
directors to the fullest extent permitted under Florida law.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 Articles of Incorporation, as amended (incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995 (File No. 0-24484)).
4.2 Bylaws (incorporated by reference to the Company's Registration
Statement on Form S-1 (No. 33-79906)).
4.3 Career Horizons, Inc. 1990 Terminal Value Stock Option Plan, as
amended (assumed by AccuStaff Incorporated).
4.4 Form of Stock Option Agreement pursuant to Career Horizons, Inc. 1990
Terminal Value Stock Option Plan.
4.5 Career Horizons 1993 Stock Option and Performance Award Plan, as
amended (assumed by AccuStaff Incorporated).
II-2
<PAGE>
4.6 Form of Non-Qualified Stock Option Agreement pursuant to Career
Horizons 1993 Stock Option and Performance Award Plan.
4.7 Form of Incentive Stock Option Agreement pursuant to Career Horizons
1993 Stock Option and Performance Award Plan.
5.1 Opinion of Alston & Bird, counsel to the Registrant, as to legality
of securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of McGladrey & Pullen, LLP.
23.3 Consent of Bertram, Vallez, Kaplan & Talbot, LTD.
23.4 Consent of Stradtler, Rosenblum & Saris.
23.5 Consent of Nyhan & Mazza, P.C.
23.6 Consent of Dennis I. Berner, C.P.A.
23.7 Consent of Beers & Cutler PLLC.
23.8 Consent of Alston & Bird (included as part of Exhibit 5.1).
23.9 Power of Attorney (contained on signature page of this filing).
II-3
<PAGE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(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 Section 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.
(h) 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
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-4
<PAGE>
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 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 Jacksonville, State of Florida, on
November 13, 1996.
ACCUSTAFF INCORPORATED
By: /s/ Derek E. Dewan
------------------
Derek E. Dewan,
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Derek E. Dewan and Michael D. Abney,
and each of them, as true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for him or her and in his name or her
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all which said attorneys-in-fact and agents or any of
them, or their or his or her substitute or substitutes, may lawfully do, or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Derek E. Dewan Chairman of the Board, November 13, 1996
- ------------------------------ President and Chief
Derek E. Dewan Executive Officer
(principal executive
officer)
/s/ Michael D. Abney Senior Vice President, November 13, 1996
- ------------------------------ Chief Financial Officer
Michael D. Abney and Assistant Secretary
(principal financial
officer)
/s/ Sean D. Mann Controller (principal November 13, 1996
- ------------------------------ accounting officer)
Sean D. Mann
/s/ John K. Anderson, Jr. Director November 13, 1996
- ------------------------------
John K. Anderson, Jr.
II-5
<PAGE>
/s/ T. Wayne Davis Director November 13, 1996
- ------------------------------
T. Wayne Davis
/s/ Stephen A. Hoffmann Director November 13, 1996
- --------------------------------
Stephen A. Hoffmann
Director November _, 1996
- ------------------------------
Delores P. Kesler
/s/ William H. Thumel, Jr. Director November 13, 1996
- -----------------------------------
William H. Thumel, Jr.
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
------ ---------------------- ----
<S> <C> <C>
4.1 Articles of Incorporation, as amended (incorporated by reference to
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 (File No. 0-24484)).
4.2 Bylaws (incorporated by reference to the Company's Registration
Statement on Form S-1 (No. 33-79906)).
4.3 Career Horizons, Inc. 1990 Terminal Value Stock Option Plan, as
amended (assumed by AccuStaff Incorporated).
4.4 Form of Stock Option Agreement pursuant to Career Horizons, Inc. 1990
Terminal Value Stock Option Plan.
4.5 Career Horizons 1993 Stock Option and Performance Award Plan, as
amended (assumed by AccuStaff Incorporated).
4.6 Form of Non-Qualified Stock Option Agreement pursuant to Career
Horizons 1993 Stock Option and Performance Award Plan.
4.7 Form of Incentive Stock Option Agreement pursuant to Career Horizons
1993 Stock Option and Performance Award Plan.
5.1 Opinion of Alston & Bird, counsel to the Registrant, as to legality of
securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of McGladrey & Pullen, LLP.
23.3 Consent of Bertram, Vallez, Kaplan & Talbot, LTD.
23.4 Consent of Stradtler, Rosenblum & Saris.
23.5 Consent of Nyhan & Mazza, P.C.
23.6 Consent of Dennis I. Berner, C.P.A.
23.7 Consent of Beers & Cutler PLLC.
23.8 Consent of Alston & Bird (included as part of Exhibit 5.1).
23.9 Power of Attorney (contained on signature page of this filing).
</TABLE>
<PAGE>
EXHIBIT 4.3
CAREER HORIZONS, INC.
---------------------
1990 TERMINAL VALUE STOCK OPTION PLAN
-------------------------------------
1. PURPOSE OF PLAN. This 1990 Terminal Value Stock Option Plan (the
---------------
"Plan") is intended to encourage ownership of Common Stock, $0.01 par value per
share ("Common Stock"), of Career Horizons, Inc., a Delaware corporation (the
"Company"), by management employees of the Company and its subsidiaries and to
provide additional incentive for them to promote the success of the business.
2. SCOPE OF THE PLAN. An aggregate of 1,200,000 shares of Common Stock
-----------------
shall be available and reserved for issue under the Plan, subject to adjustment
pursuant to the provisions of Section 10 hereof. If an option should expire or
terminate for any reason without having been exercised in full, the unpurchased
shares which were subject thereto shall, unless the Plan shall have terminated,
become available for other options under the Plan. The Common Stock shall not be
issued in respect of an option granted hereunder unless the exercise of such
option and the issuance and delivery of shares of Common Stock pursuant thereto
shall comply with all relevant provisions of law, including the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules
and regulations thereunder, and the requirements of any stock exchange upon
which the Common Stock may then be listed, and shall be further subject to the
approval of the Company's counsel.
<PAGE>
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
--------------------------
Board of Directors of the Company (the "Board"). Directors of the Company who
are either eligible for options, or to whom options have been granted, may vote
on any matters affecting the administration of the Plan or the granting of
options under the Plan; provided, however, that no director shall vote upon the
granting of an option to himself but any such director may be counted in
determining the existence of a quorum at any meeting of the Board at which the
Plan is administered or action is taken with respect to the granting of any
option hereunder.
Without limiting the generality of the foregoing, the Board shall have
full and final authority in its discretion, subject to the express provisions of
the Plan, to (i) determine the fair market value of the Common Stock covered by
each option; (ii) determine the management employees of the Company or of any of
its subsidiaries to whom, and the time or times at which, options shall be
granted; (iii) determine the number of shares to be covered by each option; (iv)
determine the consideration, if any, to inure to the Company for each option;
(v) interpret the Plan; (vi) prescribe, amend and rescind rules and regulations
relating to the Plan; (vii) determine the terms and provisions of each option
granted hereunder (which need not be identical); (viii) accelerate any exercise
date of any option; (ix) authorize any person to execute on behalf of the
-2-
<PAGE>
Company an agreement pursuant to which an option was previously granted by the
Board (a "Stock Option Agreement"); and (x) make all other determinations deemed
necessary or advisable for the administration of the Plan.
4. ELIGIBILITY. Options may be granted only to management employees
-----------
(including officers and directors who are employees) of the Company or of any of
its subsidiaries. An individual who has been granted an option may, if he is
otherwise eligible, be granted an additional option or options.
5. OPTION PRICE. The purchase price to be paid for Common Stock
------------
transferred pursuant to the exercise of an option granted hereunder shall be as
set forth in the Stock Option Agreement.
6. NON-TRANSFERABILITY OF OPTIONS. An option granted under the Plan
------------------------------
shall by its terms not be transferable otherwise than by will or by the laws of
descent and distribution, and, except as otherwise provided in Section 9 hereof,
an option may be exercised, during the lifetime of the holder of the option,
only by such holder.
7. EXERCISE OF OPTIONS. Each option may be exercised in the manner
-------------------
provided for in the Stock Option Agreement between the holder of the option and
the Company; provided, however, no option shall be exercisable after the end of
the sixth calendar month following the fifth anniversary of the date on which it
is granted.
-3-
<PAGE>
The purchase price of any shares as to which an option shall be
exercisable shall be paid in full at the time of exercise. The holder of an
option shall not have any of the rights of a stockholder of the Company with
respect to the shares covered by his option until such shares shall have been
issued to him upon the purchase of such shares upon exercise of the option in
accordance with and in the manner set forth in the Stock Option Agreement.
8. CONSIDERATION. The Board shall determine the consideration flowing
-------------
to the Company in respect of each option granted under the Plan as well as the
conditions, if any, which it may deem appropriate to assure that such
consideration shall be received by, or shall accrue to, the Company. The
consideration specified in any option my be different from the consideration
specified in any other option, whether granted at the same or a different time.
9. EXERCISE UPON CESSATION OF EMPLOYMENT. The Board shall make any
-------------------------------------
provision under any option granted hereunder which it, in its discretion, shall
consider appropriate, regarding the exercisability or the termination of any
option granted hereunder in the event that a holder thereof ceases to be an
employee of the Company or any of its subsidiaries by reason of his discharge
for cause, his voluntary termination of his employment, his death or disability,
or any other termination of such holder's employment. In the case of the
-4-
<PAGE>
death of a holder of an option granted hereunder, such option may be exercised
by the estate of such holder or the person or persons (including the estate of
any such person or persons who have died) who acquire the right to exercise the
option by bequest or inheritance or, in the case of such disability or other
termination, by such holder or his legal representative, in the manner and to
the extent set forth in the Stock Option Agreement. Any termination of an option
hereunder by reason of cessation of employment shall be without prejudice to any
rights or remedies which the Company or any of its subsidiaries may have against
the holder of the option under the Stock Option Agreement or otherwise.
The Stock Option Agreements may contain such provisions as the Board
shall approve with respect to the effect of approved leaves of absence;
provided, however, that all options shall terminate no later than the original
date of termination.
10. ADJUSTMENTS. Options granted hereunder shall contain such uniform
-----------
provisions as the Board shall, in its sole judgment, determine for adjustment of
the number and class of shares covered thereby, the option prices or both, to
reflect a stock dividend, stock split-up, share combination, exchange of shares,
recapitalization, merger, consolidation, acquisition or disposition of property
or shares, reorganization, liquidation, or other similar changes or
transactions, of or by the
-5-
<PAGE>
Company. In any such event the aggregate number and class of shares available
for issuance under the Plan shall be appropriately adjusted and all of the
provisions of this Plan with respect to the number and class of shares so
available shall likewise be adjusted.
11. EFFECTIVENESS OF THE PLAN. The Plan shall become effective upon
-------------------------
adoption by the Board; provided, however, that if so required by applicable law,
the Plan shall be submitted for approval by the stockholders of the Company
promptly after the date of adoption of the Plan by the Board. If such approval
is required by applicable law and the stockholders fail to approve the Plan, all
options granted hereunder shall be and become null and void.
12. TIME OF GRANTING OPTIONS. The date of grant of an option under the
------------------------
Plan shall, for all purposes, be the date on which the Board makes the
determination granting such options, and no grant shall be deemed effective
under the Plan prior to such date. Notice of the Board's action shall be given
to each employee to whom an option is so granted within a reasonable time after
the date of such grant.
13. TERMINATION AND AMENDMENT OF THE PLAN. This Plan shall terminate
-------------------------------------
on May 31, 2000. Prior thereto, the Board may terminate the Plan at any time;
provided, however, that any such termination shall not affect any options then
outstanding under the Plan.
-6-
<PAGE>
The Board may from time to time make such modifications or amendments to
the Plan and, with the consent of the holder of an option, of the terms and
conditions of his option, as it shall deem advisable, but may not, without
further approval of the stockholders of the Company if such approval is required
by applicable law (a) increase the maximum number of shares which shall be
available and reserved for issue under the Plan, except as provided in Section
10 hereof, (b) change the employees or class of employees eligible to receive
options, or (c) extend the term of the Plan beyond the period provided in the
first paragraph of this Section 13.
Neither the termination nor any modification or amendment of the Plan
shall, without the consent of the holder of an option theretofore granted under
the Plan, adversely affect the rights of such holder with respect to such
option.
14. TERMINATION OF RIGHT OF ACTION. Every right of action arising out
------------------------------
of or in connection with the Plan by or on behalf of the Company or of any
subsidiary thereof, or by any stockholder of the Company or of any subsidiary
thereof, against any past, present or future member of the Board or against an
employee, or by an employee (past, present or future) against the Company or any
subsidiary thereof will, irrespective of the place where an action may be
brought and irrespective of the place of residence of any such stockholder,
director or employee, cease and be barred by the expiration of three years from
the date of the act or omission in respect of which such right of action is
alleged to have arisen.
-7-
<PAGE>
AMENDMENT TO THE
CAREER HORIZONS, INC.
1990 TERMINAL VALUE STOCK OPTION PLAN
The Career Horizons, Inc. 1990 Terminal Value Stock Option Plan is
hereby amended as follows:
1. Section 7 of the Plan is hereby amended by adding the following to the
end thereof:
The purchase price of any shares as to which an option shall be
exercisable shall be payable in cash or, upon the discretion of the
Board, by delivery to the Company of other shares of Common Stock of the
Company owned by the holder of the option (to the extent such shares
have been held by such person for at least six months prior to such
delivery). Shares delivered to the Company in payment of the option
price shall be valued at the fair market value of the Common Stock on
the day preceding the date of the exercise of the option. Such value
shall be determined by the Board.
2. The Plan is hereby amended by adding a new Section 15 to the end thereof
as follows:
15. WITHHOLDING TAXES. In the case of the issuance or distribution of
-----------------
Common Stock hereunder, the Company, as a condition of such issuance or
distribution, shall require the payment (through withholding from the
option holder's salary, reduction of the number of shares of Common
Stock or other securities to be issued, contemporaneous payment by the
option holder or otherwise) of any statutory federal, state, local or
foreign taxes to be withheld with respect to such awards.
<PAGE>
EXHIBIT 4.4
STOCK OPTION AGREEMENT
----------------------
AGREEMENT made as of this day of , 19 by and between CAREER
--- ---- --
HORIZONS, INC., a Delaware corporation (the "Company"), and
---------------------
(the "Executive") residing at .
-----------------------------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires, in connection with the employment of the
Executive and in accordance with its 1990 Terminal Value Stock Option Plan for
key employees (the "Plan"), to provide the Executive with an opportunity to
acquire Common Stock of the Company, $0.01 par value per share ("Common Stock"),
on favorable terms and thereby increase his proprietary interest in the
continued progress and success of the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
set forth herein and other good and valuable consideration, the Company and the
Executive hereby agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a determination by the
-------------------------------
Board of Directors of the Company (the "Board") made on
------------------------
(the "Date of Grant"), the Company, subject to the terms of the Plan and this
Agreement,
<PAGE>
hereby confirms that the Executive has been granted, effective June 1, 1990, as
a matter of separate inducement and agreement, and in addition to and not in
lieu of salary or other compensation for services, the right to purchase (the
"Option") an aggregate of ( ) shares of Class A
--------------------- ----------
Common Stock of the Company on the terms and conditions herein set forth,
subject to adjustment as provided in Section 8 hereof.
2. EXERCISE PRICE. The purchase price of the shares of Common Stock
--------------
covered by the Option (the "Exercise Price") will be $ per share subject to
-----
adjustment as provided in Section 8 hereof.
3. EXERCISE OF OPTION. The Option shall be exercisable on the terms
------------------
and conditions hereinafter set forth:
(a) Subject to the terms of paragraphs (b) and (c) of this Section 3,
an Option hereby granted may be exercised, in whole or in part, upon the first
to occur of any of the following: (i) a transaction in which the Company is
acquired by reason of a sale or other transfer of all of the issued and
outstanding capital stock of the Company, a sale or other transfer of all or
substantially all of the assets of the Company or a merger or consolidation of
the Company with or into another corporation (any of such transactions is
hereinafter referred to as a "Sale of the Company"), (ii) the
-2-
<PAGE>
initial offering of Common Stock pursuant to an underwritten public offering in
a generally recognized securities market (a "Public Offering"), or (iii) June 1,
1995 (each such transaction or date described in clauses (i) through (iii) above
is hereinafter referred to as an "Exercise Event"). The Option granted
hereunder may be exercised contemporaneously with the Exercise Events describe
in clauses (i) and (ii) above, and, with respect to the Exercise Event describe
in clause (iii) above, during the period beginning on the date of such Exercise
Event and ending on the date the Option expires pursuant to Section 4 hereof.
(b) Subject to paragraph (c) of this Section 3, the Executive may
exercise the Option only with respect to the number of shares of Common Stock as
provided in Section 1 hereof multiplied by a fraction, the denominator of which
shall be 14, and the numerator of which shall be that number set forth in the
last column on Schedule A hereto and in the same row as the largest dollar
amount not in excess of the Terminal Value (as hereinafter defined) indicated in
the appropriate column for the period during which the Exercise Event occurs.
For purposes of this Agreement, Terminal Value shall mean (i) in the event of a
Sale of the Company, the total net proceeds (or the fair market value of other
consideration) received by or in respect of the Company in such transaction and
available to holders of the Common Stock and Common Stock
-3-
<PAGE>
Equivalents (as hereinafter defined) issued and outstanding on the date of such
transaction; (ii) in the event of a Public Offering, the per share price in such
Public Offering multiplied by the number of shares of Common Stock outstanding
on a fully diluted basis after giving effect to such Public Offering; or (iii)
if no Sale of the Company or Public Offering has occurred prior to June 1, 1995,
the value of the Company, as of June 1, 1995, derived by multiplying the EBITDA
(as hereinafter defined) of the Company for the one year period ending May 31,
1995 by seven, less the face amount of the Company's senior debt, subordinated
debt and preferred stock outstanding, plus cash on hand. For purposes of this
paragraph (b), Common Stock Equivalents shall mean options and warrants to
purchase, and any other securities of the Company convertible into, Common
Stock. For purposes of this paragraph (b), EBITDA shall mean net earnings
determined before taking into account depreciation, interest, amortization,
taxes and the $135,000 annual fee payable to Harvest Ventures, Inc. The
determination of EBITDA and all other factors utilized in computing the number
of shares of Common Stock permitted to be purchased under the Option pursuant to
this Section 3(b), shall be made by the independent public accountants then
auditing the books and records of the Company. Such determinations and
calculations shall be made in accordance with generally accepted accounting
principles applied on a consistent basis,
-4-
<PAGE>
and such determinations and calculations by such auditors shall be final and
binding on the parties hereto.
(c) Except as provided below, the Executive need not be in the employ
of the Company or any of its subsidiaries at the time the Exercise Event offers
in order to be eligible to exercise the Option granted hereunder. However,
notwithstanding any other provision of this Agreement to the contrary, if at any
time prior to June 1, 1992, the Executive's employment with the Company or any
of its subsidiaries is terminated for Cause, as defined in Section 8(a) of the
Employment Agreement dated as of the date hereof between the Executive and the
Company, this Option shall be exercisable cumulatively during its term only as
to the following amounts of the number of shares of Common Stock otherwise made
available for purchase under paragraph (b) of this Section 3:
(i) as to of such shares if the Executive's employment
-----
terminates prior to June 1, 1991;
(ii) as to of such shares if the Executive's employment
--------
terminates prior to June 1, 1992, and
(iii) as to the total number of such shares if (x) the Executives
employment terminates on or after or (y) a Sale of
--------------------
the Company or a Pubic Offering occurs at any time after the date
hereof.
-5-
<PAGE>
(d) The Option may be exercised pursuant to the provisions of this
Section 3 by notice and payment to the Company as provided in Sections 10 and 15
hereof.
4. EXPIRATION OF OPTION. This Option, to the extent unexercised, shall
--------------------
not be exercisable after the end of the sixth calendar month following the fifth
anniversary of the date hereof, subject to earlier termination or cancellation
as provided in this Agreement or in the Plan. Notwithstanding the above, this
Option, to the extent unexercised, shall be exercisable only contemporaneously
with the occurrence of an Exercise Event described in clauses (i) and (ii) of
Section 3(a) hereof, and if not then exercised this Option shall expire. Upon
the occurrence of an Exercise Event described in clause (iii) of Section 3(a),
this Option shall be exercisable only within the six (6) month period beginning
on the date of such Exercise Event.
5. RIGHTS AS A STOCKHOLDER. The holder of the Option will not have any
-----------------------
rights to dividends or any other rights of a stockholder of the Company with
respect to any shares of Common Stock subject to the Option until such shares
shall have been issued to him (as evidenced by the appropriate entry on the
books of a duly authorized transfer agent of the Company) provided that the date
of issuance shall not be earlier than the Closing Date (as hereinafter defined)
with respect to such shares pursuant to Section 11 hereof upon purchase of such
shares upon exercise of the Option.
-6-
<PAGE>
6. NON-TRANSFERABILITY OF OPTION. The Option will not be transferable
otherwise than by will or by the laws of descent and distribution, and, except
as otherwise provided in Section 7 hereof, the Option may be exercised during
the lifetime of the Executive only by him. More particularly, but without
limiting the generality of the foregoing, the Option may not be assigned,
transferred (except as provided in the next preceding sentence) or otherwise
disposed of, or pledged or hypothecated in any way (whether by operation of law
or otherwise), and shall not be subject to execution, attachment or other
process. Any assignment, transfer, pledge, hypothecation or other disposition
of the Option attempted contrary to the provisions of this Agreement, or any
levy of execution, attachment or other process attempted upon the Option, will
be null and void and without effect. Any attempt to make any such assignment,
transfer, pledge, hypothecation or other disposition of the Option or any
attempt to make any such levy of execution, attachment or other process will
cause the Option to terminate immediately upon the happening of any such event
if the Board, at any time, should, in it sole discretion, so elect, by written
notice to the Executive or to the person or persons then entitled to exercise
the Option under the provisions of Section 7 hereof; provided, however, that any
such termination of the Option under the foregoing provisions of this Section 6
will not prejudice any rights or
-7-
<PAGE>
remedies which the Company or any subsidiary thereof may have under this
Agreement or otherwise.
7. EXERCISE UPON THE DEATH OR DISABILITY OF THE EXECUTIVE. If the
------------------------------------------------------
Executive dies or becomes incompetent prior to the date that the Option would
otherwise become exercisable, then such Option may be exercised at the same time
and to the same extent that the Executive would have been entitled to exercise
it under Section 3 hereof (i) in the case of such death, by the estate of the
Executive or the person or persons (including the estate of any such person or
persons who have died) who acquire the right to exercise the Option by bequest
or inheritance and (ii) in the case of such incompetency, by the Executive's
legal representative.
8. ADJUSTMENTS. In the event of a stock dividend, stock split, share
-----------
combination, exchange of shares, recapitalization, merger, consolidation,
acquisition or disposition of property or shares, reorganization, liquidation or
other similar changes or transactions of or by the Company, the Board shall make
(or shall undertake to have the Board of Directors of any corporation which
merges with, or acquires the stock or assets of, the Company make) such
adjustment of the number or class of shares then covered by the Option, or of
the Exercise Price, or both, as it shall deem appropriate to give proper and
equitable affect to such event.
-8-
<PAGE>
9. REGISTRATION. The shares subject hereto and issuable upon the
------------
exercise hereof may not be registered under the Securities Act of 1933, as
amended, and, if required upon the request of counsel to the Company, the
Executive will give a representation as to his investment intent with respect to
such shares of Common Stock prior to their issuance as set forth in paragraph
(b) of Section 10 hereof.
The Company may register or qualify the shares of Common Stock covered
by the Option for sale pursuant to the Securities Act of 1933, as amended, at
any time prior to or after the exercise in whole or in part of the Option.
10. METHOD OF EXERCISE OF OPTION. Subject to the terms and conditions
----------------------------
of this Agreement, the Option shall be exercisable by notice (an "Exercise
Notice") and payment to the Company in accordance with the procedure prescribed
herein. Each Exercise Notice shall:
(a) State the election to exercise the Option and the number of shares
in respect of which it is being exercised;
(b) Contain a representation and agreement as to investment intent, if
required by counsel to the Company with respect to such shares, in form
satisfactory to counsel for the Company; and
(c) Be signed by the person or persons entitled to exercise the Option
and, if the Option is being exercised by any person or persons other than the
Executive, be accompanied
-9-
<PAGE>
by proof, satisfactory to counsel for the Company, of the right of such person
or persons to exercise the Option,
In connection with an Exercise Event described in either clause (i) or
(ii) of Section 3(a) hereof, the Option shall be deemed to be exercised upon
receipt by the Company of the Exercise Notice accompanied by a certified or bank
check, made payable to the order of the Company, in the amount of the full
purchase price of the shares issuable upon exercise of the Option.
In connection with an Exercise Event described in clause (iii) of
Section 3(a) hereof, upon receipt of an Exercise Notice, the Company will
specify, by written notice to the person or persons exercising the Option, a
date and time (such date and time being herein called the "Closing Date") and
place for payment of the full purchase price of such shares. The Closing Date
will be not more than fifteen days from the date the Exercise Notice is received
by the Company unless another date is agreed upon by the Company and the person
or persons exercising the Option or is required upon advice of counsel for the
Company in order to meet the requirements of Section 12 hereof. Payment of the
Exercise Price for any shares in respect of which the Option shall be exercised,
will be made by such person or persons at the place specified by the Company on
or before the Closing Date by delivering to the Company a certified or bank
cashier's check payable to the order of the Company.
-10-
<PAGE>
The Option will be deemed to have been exercised with respect to any
particular shares if, and only if, the preceding provisions of this Section 10
and the provisions of Section 11 hereof shall have been complied with, in which
event the Option will be deemed to have been exercised on the date of receipt of
the Exercise Notice by the Company (in connection with an Exercise Event
described in clause (i) or (ii) of Section 3(a) hereof), or on the Closing Date
(in connection with an Exercise Event described in clause (iii) of Section 3(a)
hereof). Anything in this Agreement to the contrary notwithstanding, any
Exercise Notice given pursuant to the provisions of this Section 10 will be void
and of no effect if all the preceding provisions of this Section 10 and the
provisions of Section 11 hereof shall not have been complied with. The
certificate or certificates for shares as to which the Option shall be exercised
will be registered in the name of the person or persons exercising the Option
(or, if the Option is exercised by the Executive and if the Executive so
requests in the Exercise Notice, will be registered in the name of the Executive
and another person jointly, with right of survivorship) and will be delivered on
the Closing Date to the person or persons exercising the Option at the place
specified for the closing, but only upon compliance with all of the provisions
of this Agreement. If the person or persons exercising the Option fails to
accept delivery of and pay for
-11-
<PAGE>
all or any part of the number of shares specified in such notice upon tender or
delivery thereof on the Closing Date, such person's or persons' right to
exercise the Option with respect to such undelivered shares may be terminated in
the sole discretion of the Board. The Option may be exercised only with respect
to full shares of Common Stock.
11. Approval of Counsel. The exercise of the Option and the issuance
-------------------
and delivery of shares of Common Stock pursuant thereto shall be subject to
approval by the Company's counsel of all legal matters in connection therewith,
including compliance with the requirements of the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, and the requirements of any stock exchange upon which
the Common Stock may then be listed.
12. Resale of Common Stock. Upon any sale or transfer of the Common
----------------------
Stock purchased upon exercise of the Option, the Executive shall deliver to the
Company an opinion of counsel satisfactory to the Company to the effect that
either (i) the Common Stock to be sold or transferred has been registered under
the Securities Act of 1933, as amended, and that there is in effect a current
prospectus meeting the requirements of Subsection 10(a) of said Act which is
being or will be delivered to the purchaser or transferee at or prior to
-12-
<PAGE>
the time of delivery of the certificates evidencing the Common Stock to be sold
or transferred, or (ii) such Common Stock may then be sold without violating
Section 5 of said Act.
The Common Stock issued upon exercise of the Option shall bear the
following legend if required by counsel for the Company:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS,
IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT
REQUIRED.
The shares of Common Stock issuable upon the exercise hereof shall be
subject to the terms and provisions of that certain Stockholders' Agreement,
dated as of May 31, 1990, by and among the Company and the persons listed on
Exhibit A thereto but only during such period such Stockholders' Agreement is in
full force and effect, and to the condition that the Executive execute and
deliver to the Company a counterpart of such Stockholders' Agreement.
13. Reservation of Shares. The Company shall at all times during the
---------------------
term of the Option reserve and keep available such number of shares of the class
of stock then subject to the Option as will be sufficient to satisfy the
requirements of this Agreement.
-13-
<PAGE>
14. Limitation of Action. The Executive and the Company each
--------------------
acknowledge that every right of action accruing to him or it, as the case may
be, and arising out of or in connection with this Agreement against the Company
or a subsidiary thereof, on the one hand, or against the Executive, on the other
hand, will, irrespective of the place where an action may be brought, cease and
be barred by the expiration of three years from the date of the act or omission
in respect of which such right of action arises.
15. Notices. Each notice relating to this Agreement shall be in
-------
writing and delivered in person or by certified mail to the proper address. All
notices to the Company shall be addressed to it at 695 Main Street, Stamford,
Connecticut 06901, attention: Secretary. All notices to the Executive or other
person or persons then entitled to exercise the Option shall be addressed to the
Executive or such other person or persons at the Executive's address above
specified. Anyone to whom a notice may be given under this Agreement may
designate a new address by written notice to that effect delivered to the other
party hereto.
16. Benefits of Agreement. This Agreement shall inure to the benefit
---------------------
of and be binding upon each successor and assign of the Company. All
obligations imposed upon the Executive and all rights granted to the Company
under this
-14-
<PAGE>
Agreement shall be binding upon the Executive's heirs, legal representatives and
successors.
17. Severability. In the event that any one or more provisions of
------------
this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
18. Governing Law. This Agreement will be construed and governed in
-------------
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
in its name by its President or Vice President and its corporate seal to be
hereunto affixed and attested by its Secretary and the Executive has hereunto
set his hand all as of the date, month and year first above written.
CAREER HORIZONS, INC.
ATTEST: By:
-------------------------------------
- ----------------------------------- ----------------------------------------
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<PAGE>
EXHIBIT 4.5
As amended through May 16, 1996
CAREER HORIZONS
1993 STOCK OPTION AND PERFORMANCE AWARD PLAN
1. Administration
The Career Horizons 1993 Stock Option and Performance Award Plan
(hereinafter referred to as the "Plan") shall be administered by the Stock
Option Committee of the Board of Directors (hereinafter referred to as the
"Committee") of Career Horizons, Inc., a Delaware corporation (the
"Corporation"). Such Committee shall be composed of at least two directors who
are not employees of the Corporation or any Parent or Subsidiary (as such terms
are defined under Section 12 hereof). Subsequent to April 1, 1994, no individual
will be eligible to serve as a member of the Committee unless he or she meets
the disinterested administration requirements of Section 16 of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act"). Each member of the
Committee must also qualify as an "Outside Director," as such term is defined
under Section 162(m) of the Code. Subject to the provisions of the Plan, the
Committee may establish from time to time such regulations, provisions,
proceedings and conditions of awards which, in its opinion, may be advisable in
the administration of the Plan. A majority of the Committee shall constitute a
quorum, and, subject to the provisions of Section 4 of the Plan, 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 Committee, shall be the acts of
the Committee. This Plan is intended to be a bifurcated plan, benefiting
individuals who may or may not be "insiders" of the Corporation for purposes of
Section 16 of the Exchange Act. The references to Section 16 contained herein
are intended to apply only to such insiders. The Plan is effective as of
September 30, 1993 and shall be approved by the stockholders of the Corporation
prior to September 30, 1994.
2. Shares Available
Subject to the adjustments provided in Section 8 of the Plan, the aggregate
number of shares of the common stock, par value $0.01 per share of the
Corporation (the "Common Stock") which may be granted for all purposes under the
Plan shall be two million seven hundred eight thousand sixty-four (2,708,064)
shares. Shares of Common Stock underlying awards of derivative securities,
shares of Common Stock underlying awards of instruments that are not derivative
securities and shares of Common Stock awarded hereunder (whether or not on a
restricted basis) shall be counted against the limitation set forth in the
immediately preceding sentence and may be reused (e.g., in the event that an
option or an award of shares on a restricted basis under the Plan to any
individual expires, is terminated, unexercised, or is forfeited as to any shares
covered thereby); with respect to awards made to Section 16 insiders, shares may
be reused to the extent permitted under Section 16 of the Exchange Act and the
Rules and Regulations promulgated thereunder. Options, performance shares,
restricted stock and performance units (collectively, "Plan Awards"), awarded
under the Plan may be fulfilled in accordance with the terms of the Plan with
either authorized and unissued shares of the Common Stock, issued shares of such
Common
<PAGE>
Stock held in the Corporation's treasury or shares of Common Stock acquired on
the open market.
3. Eligibility
Present and future officers and key employees (including directors) of the
Corporation, or of any Parent or Subsidiary, who are regularly employed on a
salaried basis as common law employees shall be eligible to participate in the
Plan. Individuals who are directors of the Corporation, or of any Parent or
Subsidiary who are not common law employees of the Corporation or of any Parent
or Subsidiary (and who were directors prior to the effective date of this Plan)
shall also be eligible to participate in the Plan and, where appropriate under
this Plan, shall be referred to as "employees" and their service as directors as
"employment." However, subsequent to April 1, 1994, such directors of the
Corporation who are members of the Committee shall not be eligible to receive
grants of Plan Awards hereunder, except that individuals who become non-employee
directors of the Corporation after the effective date of this Plan (the "Post-
Effective Date Directors") shall be eligible to participate in the Plan, but
only to the extent provided in Section 5(k) hereof. Furthermore, at the
discretion of the Committee, independent contractors providing service to the
Corporation, any Parent or any Subsidiary or any Franchisees of the Corporation
or any Parent or Subsidiary also shall be eligible to participate hereunder and,
where appropriate under this Plan, shall be referred to as "employees" and their
service as independent contractors or Franchisees as "employment." However, the
only Plan Awards which Franchisees are eligible to receive hereunder are non-
qualified stock options. Any individual granted an option under this Plan may be
referred to hereunder as an "Optionee."
4. Authority of Committee
The Committee shall have plenary authority to interpret the Plan and to
make all determinations specified in or permitted by the Plan or deemed
necessary or desirable for its administration or for the conduct of the
Committee's business. All interpretations and determinations of the Committee
may be made on an individual or group basis and shall be final, conclusive, and
binding on all interested parties.
Subject to the express provisions of the Plan, the Committee shall have
authority, in its discretion, to determine the persons to whom Plan Awards shall
be granted, the times when such Plan Awards shall be granted, the number of Plan
Awards, the purchase price or exercise price of each Plan Award, the period(s)
during which such Plan Award shall be exercisable (whether in whole or in part)
(including, without limitation, the authority to accelerate the date(s) as of
which previously granted Plan Awards may be exercised), the restrictions to be
applicable to Plan Awards and the other terms and provisions thereof (which need
not be identical). With respect to individuals who are insiders for purposes of
Section 16 of the Exchange Act, the Committee also shall have the authority to
require, in its discretion, as a condition of the granting of any such Plan
Award, that such person agrees not to sell or otherwise dispose of a Plan Award,
any Common Stock acquired pursuant to a Plan Award or any other "derivative
security" (as defined by Rule 16a-l(c) promulgated under the Exchange Act) for a
period of six (6) months following the later of (i) the date of the grant of
such Plan Award, or (ii) the date when the exercise price of a
<PAGE>
Plan Award is fixed if such exercise price is not fixed at the date of grant of
such Plan Award. In addition, the authority of the Committee shall include
without limitation the following:
(a) The arrangement of temporary financing for an Optionee by registered
broker-dealers, under the rules and regulations of the Federal Reserve Board,
for the purpose of assisting the Optionee in the exercise of an option, such
authority to include the payment by the Corporation of the commissions of the
broker-dealer;
(b) The establishment of procedures for an Optionee to exercise all or a
portion of an option by cash payment or by delivering that number of shares
already owned by him for at least six months prior to the date of delivery of
any such shares having a Fair Market Value which shall equal the option exercise
price for the portion exercised and to deliver the shares thus acquired by him
(provided he has held such shares for at least six months prior to the date of
delivery thereof) in payment of shares to be received pursuant to the exercise
of additional portions of such option, the effect of which shall be that an
Optionee can in sequence utilize such newly acquired shares in payment of the
exercise price of the entire option, together with such cash as shall be paid in
respect of fractional shares; and
(c) The establishment of a procedure whereby (i) a number of shares of
Common Stock or other securities may be withheld from the total number of shares
of Common Stock or other securities to be issued upon exercise of an option, or
other grant or award, as applicable, or (ii) delivery of already owned shares or
payment of cash to meet the obligation of statutory withholding for taxes
incurred by the optionee upon such exercise.
The Committee may grant awards in the form of one or more of the following:
(i) incentive stock options and non- qualified stock options (described in
Section 5); (ii) restricted stock (described in Section 6); (iii) performance
shares (described in Section 6); and (iv) performance units (described in
Section 6).
5. Stock Options
The Committee shall have the authority, in its discretion, to grant
"incentive stock options" pursuant to Section 422 of the Code, or to grant "non-
qualified stock options" (options which do not qualify under Section 422 of the
Code) or to grant both types of options. No option shall be granted for a term
of more than ten (10) years. Notwithstanding anything contained herein to the
contrary, an incentive stock option may be granted only to common law employees
of the Corporation or of any Parent or Subsidiary now existing or hereafter
formed or acquired, and not to any director or officer who is not also a common
law employee. For an option granted hereunder to qualify for the "performance-
based compensation" exception to the deduction limitation under Code Section
162(m), the maximum number of shares of Common Stock subject to options which
may be granted to any single Executive during any one calendar year is five
hundred thousand (500,000). For purposes of this Plan, the term "Executive"
shall mean an employee of the Corporation or of any Parent or Subsidiary whose
compensation is subject to the deduction limitations set forth under Code
Section 1262(m). The terms and conditions of the options shall be determined
from time to time by the Committee; provided, however, that the
<PAGE>
options granted under the Plan shall be subject to the following:
(a) The Committee shall establish the option price at the time any option
is granted at such amount as the Committee shall determine; provided, however,
that the option price for each share purchasable under any incentive stock
option (or under any option, in the case of an Executive) granted hereunder
shall be such amount as the Committee shall, in its best judgment, determine to
be not less than one hundred percent (100%) of the Fair Market Value per share
at the date the option is granted; and provided, further, that in the case of an
incentive stock option granted to a person who, at the time such incentive stock
option is granted, owns shares of the Corporation or of any Parent or Subsidiary
which possess more than ten percent (10%) of the total combined voting power of
all classes of shares of the Corporation or of any Parent or Subsidiary, the
purchase price for each share shall be such amount as the Committee, in its best
judgment, shall determine to be not less than one hundred ten percent (110%) of
the Fair Market Value per share at the date the option is granted. The option
price will be subject to adjustment in accordance with the provisions of Section
8 of the Plan.
(b) The price per share with respect to each option shall be payable at
the time the option is exercised. Such price shall be payable in cash or, upon
the discretion of the Committee, by delivery to the Corporation of other shares
of Common Stock of the Corporation owned by the optionee for at least six months
prior to the date of delivery of any such shares. Shares delivered to the
Corporation in payment of the option price shall be valued at the Fair Market
Value of the Common Stock on the day preceding the date of the exercise of the
option. Such value shall be determined by the Committee.
(c) Each option shall be exercisable in whole or in installments, and at
such time(s), and subject to the fulfillment of any conditions on
exercisability, as may be determined by the Committee at the time of the grant.
The right to purchase shares shall be cumulative so that when the right to
purchase any shares has accrued such shares or any part thereof may be purchased
at any time thereafter until the expiration or termination of the option.
(d) No option by its terms shall be exercisable after the expiration of
ten (10) years from the date of grant of the option; provided, however, in the
case of an incentive stock option granted to a person who, at the time such
option is granted, owns stock of the Corporation or of any Parent or Subsidiary
possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of the Corporation or of any Parent or Subsidiary, such option
shall not be exercisable after the expiration of five (5) years from the date
such option is granted.
(e) Subject to the provisions of Section 5(i) hereof, in the event of the
death of the Optionee prior to his termination of employment with the
Corporation or with any Parent or Subsidiary, his estate (or other beneficiary,
if so designated in writing by the Participant) shall have the right, within two
(2) years after the date of death (but not after the expiration date of the
option(s)), to exercise his option(s) with respect to that number of the shares
of stock as to which the deceased optionee had not exercised his option at the
time of his death and with respect to which such option or options were
exercisable at such time.
<PAGE>
(f) Subject to the provisions of Section 5(i) hereof, if the employment by
the Corporation or by any Parent or Subsidiary of an Optionee is terminated
because of Disability, he shall have the right, within one (1) year after the
date of such termination in the case of an incentive stock option (but in no
case after the expiration of the option), and until the expiration date of the
stock option in the case of a non-qualified stock option, to exercise his
option(s) with respect to that number of the shares of stock as to which he had
not exercised his option at the time of such termination and with respect to
which such option or options were exercisable at such time.
(g) Subject to the provisions of Section 5(i) hereof, if an Optionee's
employment with the Corporation or with any Parent or Subsidiary is terminated
due to his Retirement, he shall have the right, within one (1) year (or three
(3) months in the case of an incentive stock option) after the date of his
Retirement (but in no case after the expiration date of the option(s)) to
exercise his option(s) with respect to that number of the shares of stock as to
which he had not exercised his option at the time of Retirement and with respect
to which such option or options were exercisable at that time.
(h) Except as provided in the following sentence, if the employment of an
optionee by the Corporation or by any Parent or Subsidiary is terminated for any
reason other than those specified in Sections 5(e), (f) and (g) above, he shall
have the right, within three (3) months after the date of such termination (but
in no case after the expiration date of the option), to exercise his option(s)
only with respect to that number of shares of stock that he was entitled to
purchase pursuant to options that were exercisable immediately prior to such
termination. Notwithstanding the provisions of the immediately preceding
sentence, if a Participant's employment was terminated by the Corporation or by
any Parent or Subsidiary for Good Cause then the Optionee shall, at the time of
such termination of employment, forfeit his rights to exercise all of such
option(s).
(i) Except as provided in the following sentence, if a Franchisee incurs a
Termination of Franchise Relationship with the Corporation, he (or, in the case
of his death, his estate (or other beneficiary if so designated in writing by
the Franchisee) shall have the right, within thirty (30) days (but not after the
expiration date of the option), to exercise his option(s) but only with respect
to that number of shares of stock which he was entitled to purchase pursuant to
options that were exercisable immediately prior to such Termination of Franchise
Relationship. However, notwithstanding the provisions of the immediately
preceding sentence, (A) if a Franchisee's Franchise Relationship was terminated
by the Corporation for Good Cause the Franchisee shall, at the time of such
Termination of Franchise Relationship, forfeit his rights to exercise under all
such option(s).
(j) Each Plan Award under which incentive stock options are granted shall
provide that to the extent the aggregate of the (i) Fair Market Value of the
shares of Common Stock (determined as of the time of the grant hereunder of the
option) subject to such incentive stock option and (ii) the fair market values
(determined as of the date(s) of grant of the options) of all other shares of
Common Stock subject to incentive stock options granted to a Participant by the
Corporation or any Parent or Subsidiary, which are exercisable for the first
time by any individual
<PAGE>
during any calendar year, exceed(s) one hundred thousand dollars ($100,000),
such excess shares of Common Stock shall not be deemed to be purchased pursuant
to incentive stock options. The terms of the immediately preceding sentence
shall be applied by taking options into account in the order in which they are
granted.
(k) Stock Option Grants to Certain Director Participants.
(i) Subject to the terms and conditions of this Section 5(k), each Post
Effective Date Director who is serving as a director of the Corporation on the
respective Dates of Grant (as set forth below) shall as of each such Date of
Grant automatically be granted an option to purchase ten thousand (10,000)
shares of Common Stock each, subject to availability under the Plan. The date of
such grants (the "Date of Grant") shall be on the third trading date following
the later of (A) the date on which the Annual Meeting of the Corporation's
stockholders, or any adjournment thereof, is held in each of the two calendar
years following the year such individual becomes a director, or (B) the date on
which the Corporation's earnings for the fiscal quarter immediately preceding
such Annual Meeting dates are released to the public. The form of the stock
options granted pursuant to this Section 5(k) shall be non-qualified stock
options. The option price of the shares of Common Stock covered by each stock
option shall be the Fair Market Value of such shares determined on the date of
the grant.
(ii) Exercisability of Stock Option. Each option granted under this
Section 5(k) by its terms shall expire five years from the date of the grant. A
stock option granted pursuant to this Section shall immediately become
exercisable. If a Post- Effective Date Director holding an outstanding option
dies following the date all or a portion of such option becomes exercisable,
such stock option shall remain so exercisable by his estate (or other
beneficiaries, as designated in writing by such Post-Effective Date Director)
until the first to occur of (A) the end of the exercise period under the option
or (B) the first anniversary of his death.
(iii) Director Participant's Termination. If a Post-Effective Date
Director's service as a director of the Corporation and of all Parents and
Subsidiaries is terminated by reason of (A) his Disability, (B) his death, (C)
failure of the Corporation or of any Parent or Subsidiary to retain, or nominate
for re-election, such Post- Effective Date Director (who is otherwise eligible)
other than for a Good Cause, or (D) his ineligibility for re-election pursuant
to the Corporation's (or any Parent's or Subsidiary's) By- laws, such
termination shall be considered a "Qualifying Termination" and shall have no
effect on unexercised vested options previously granted to such Post-Effective
Date Director. If a Post- Effective Date Director's service of the Corporation
or of any Parent or Subsidiary is terminated for any other reason, including for
Good Cause, such termination shall be considered a "Non- Qualifying
Termination." In the event of a Non- Qualifying Termination, all outstanding
unexercised stock options granted pursuant to this Section 5(k) shall be
forfeited or canceled, as the case may be.
(iv) Ineligibility for Other Grants. All Post-Effective Date Directors
shall be ineligible to receive any other grant or award under any other Section
of this Plan.
(v) Amendment. The provisions of this Section 5(k) shall not be amended
more than
<PAGE>
one time in any six month period, other than to comport with changes in the
Code,the Employee Retirement Income Security Act of 1974, as amended, or any
rules or regulations promulgated thereunder.
6. Performance Shares, Restricted Stock and Performance Units
The Committee shall have the authority to grant performance shares,
restricted stock or performance units either separately or in combination with
other awards authorized by the Plan. The terms and conditions of performance
shares and restricted stock or performance units shall be determined from time
to time by the Committee without limitation except as otherwise provided in the
Plan. Furthermore:
(a) Each award shall be granted for services rendered (or to be rendered)
and at no additional cost to the Participant, provided, however, that the value
of the services performed must, in the opinion of counsel to the Corporation,
equal or exceed the par value of such shares of the Corporation to be granted to
the Participant.
(b) The Corporation shall establish a performance account for each
Participant to whom performance shares or performance units are granted, and the
performance shares or performance units granted shall be credited to such
account. Shares in the form of restricted Common Stock, when issued, shall be
registered in the name of the Participant and together with a stock power
endorsed in blank, deposited with the Corporation at the time the account is
credited.
(c) The duration of the performance or restriction period shall be
determined by the Committee at the time each grant is made. Performance shares
or restricted stock or performance units may not be sold, assigned, transferred,
redeemed, pledged or otherwise encumbered during the restriction period, except
as provided in Section 7(b) hereof. More than one grant may be outstanding at
any one time, and performance or restriction periods may be of different
lengths.
(d) At the time of each grant, the Committee shall establish performance
targets at which performance shares or units shall be earned or times at which
restrictions placed on restricted shares or units shall lapse. The Committee may
also establish a relationship between performance targets and the number of
performance shares or the number or value of performance units which shall be
earned. The Committee also shall establish a relationship between performance
results other than the targets and the number of performance or restricted stock
and the number or value of performance units, if any, which shall be earned. The
Committee shall determine the measures of performance to be used in determining
the extent to which performance shares or units are earned or to which
restrictions on restricted stock or units shall lapse. Performance measures and
targets may vary among grants, but once established for a grant may not be
modified with respect to that grant except as provided in Section 8 and provided
that, with respect to performance shares and performance units, the Committee
may, in its sole discretion, make such adjustments to performance targets, the
number of performance shares or the number or value of performance units which
shall be earned, or such other changes as it may deem necessary or advisable in
the event of material changes in the criteria used for establishing
<PAGE>
performance targets which would result in the dilution or enlargement of a
Participant's award outside the goals intended by the Committee at the time of
the grant of the award.
(e) The Committee may provide that units equivalent to dividends or
interest shall be payable with respect to performance shares or restricted stock
or performance units held in the Participant's performance account. Such amounts
shall be credited to the performance account, and shall be payable to the
Participant in cash or in Common Stock, as set forth under the terms of the Plan
Award, at such time as the restrictions on the restricted stock are removed or
the performance shares or units are earned. The Committee further may provide
that amounts equivalent to interest or dividends held in the performance
accounts shall be credited to such accounts on a periodic or other basis.
(f) Performance awards shall be earned to the extent that the terms and
conditions of the Plan and the grant are satisfied.
(g) If the Participant (i) voluntarily ceases to be an employee of the
Corporation, or of any Parent or Subsidiary, (ii) dies or becomes Disabled,
(iii) terminates his employment with the Corporation or with any Parent or
Subsidiary due to Retirement, or (iv) suffers an involuntary termination of his
employment with the Corporation or with any Parent or Subsidiary for reasons
other than Good Cause, the award earned under this Section with respect to any
outstanding performance shares or restricted stock, performance units or
dividend equivalents shall be determined as otherwise provided herein or in any
agreement executed by such Participant hereunder. If the Participant ceases to
be an employee of the Corporation or of any Parent or Subsidiary for any other
reason, all interests awarded hereunder and subject to restrictions shall be
forfeited. In such case, the Corporation shall have the right to complete the
blank stock power with respect to restricted stock or their equivalent and
transfer the same to its treasury.
7. Deferral of Payments
The Committee may establish procedures by which a Participant may elect to
defer payment of a cash Plan Award. The Committee shall determine the terms and
conditions of such deferral. Any such deferral shall be subject to the
following:
(a) Contingent Nature of Allocation. Every allocation under the Plan to
a performance account shall be considered "contingent" and unfunded until any
forfeiture restrictions under the terms of the award expire or lapse, until all
conditions contained in the award are satisfied, and until any elective deferral
period expires. Such contingent allocations shall be considered bookkeeping
entries only, notwithstanding the crediting of "dividends" or "interest."
Nothing contained herein shall be construed as creating a trust or fiduciary
relationship between the Participants and the Corporation or the Committee.
(b) Participant's Rights to Awards. Until the Plan Award vests, the
elective deferral period expires, and any restrictions are lifted, the
Participant's performance account balance cannot be sold, conveyed, transferred,
pledged, hypothecated, or assigned and any attempt to do so by the Participant
shall result in the immediate forfeiture of such Plan Award. Until the Plan
<PAGE>
Award vests and becomes payable, such account balances shall be the property of
the Corporation. The Participant's right to such account balances shall be
subject to the claims of the general creditors of the Corporation. Receipt of
the Plan Award is conditioned upon satisfactory compliance with the terms and
conditions of the award and other requirements of the Plan. If a certificate of
stock or other security is issued pursuant to the Plan, such certificates shall
bear the appropriate legend referring to the terms, conditions and restrictions
applicable to such stock or other security.
(c) Election to Defer Payment. If a Plan Participant desires to defer
the normal receipt of cash due him under a Plan Award, he must make an
irrevocable election in a calendar year prior to the calendar year or years in
which he is to perform services that will entitle him to the award. Such
election shall be made in accordance with Rule 16b-3 to the extent required and
shall provide a fixed date for the termination of the deferral period. The
Participant shall not be permitted to receive his award prior to the end of the
elected deferral period, except in the event of: his death, Retirement,
Disability or termination of employment with the Corporation or any Parent or
Subsidiary with the Committee's written consent.
8. Adjustment of Shares
In the event there is any change in the Common Stock of the Corporation by
reason of any reorganization, recapitalization, stock split, stock dividend or
otherwise, there shall be substituted for or added to each share of Common Stock
theretofore appropriated or thereafter subject, or which may become subject, to
any option, restricted stock grant, or performance share or unit award, the
number and kind of shares of stock or other securities into which each
outstanding share of Common Stock shall be so changed or for which each such
share shall be exchanged, or to which each such share be entitled, as the case
may be, and the per share price thereof also shall be appropriately adjusted.
Notwithstanding the foregoing, (i) each such adjustment with respect to an
incentive stock option shall comply with the rules of Section 424(a) of the
Code, and (ii) in no event shall any adjustment be made which would render any
incentive stock option granted hereunder to be other than an "incentive stock
option" for purposes of Section 422 of the Code.
9. Miscellaneous Provisions
(a) Administrative Procedures. The Committee may establish any
procedures determined by it to be appropriate in discharging its
responsibilities under the Plan. Subject to the provisions of Section 13 hereof,
all actions and decisions of the Committee shall be final.
(b) Assignment or Transfer. No grant or award of any incentive stock
option (as described under Section 422 of the Code) or any other "derivative
security" (as defined by Rule 16a-l(c) promulgated under the Exchange Act) made
under the Plan or any rights or interests therein shall be assignable or
transferable by a Participant or hypothecated except by will or the laws of
descent and distribution or pursuant to a domestic relations order. During the
lifetime of a Participant, options and rights granted hereunder shall be
exercisable only by the Participant, and awards earned hereunder shall be
payable only to the Participant.
<PAGE>
(c) Investment Representation. In the case of awards paid in shares of
Common Stock or other securities, the Committee may require, as a condition of
receiving such securities, that the Participant furnish to the Corporation such
written representations and information as the Committee deems appropriate to
permit the Corporation, in light of the existence or nonexistence of an
effective Registration Statement under the Securities Act of 1933, as amended
(the "Securities Act"), to deliver such securities in compliance with the
provisions of the Securities Act.
(d) Withholding Taxes. The Corporation shall have the right to deduct
from all cash payments hereunder any statutory federal, state, local or foreign
taxes to be withheld with respect to such payments. In the case of the issuance
or distribution of Common Stock or other securities hereunder, the Corporation,
as a condition of such issuance or distribution, may require the payment
(through withholding from the Participant's salary, reduction of the number of
shares of Common Stock or other securities to be issued, or otherwise) of any
such taxes.
(e) Costs and Expenses. The costs and expenses of administering the Plan
shall be borne by the Corporation and shall not be charged against any award nor
to any employee receiving an award.
(f) Funding of Plan. Except in the case of awards of restricted stock,
the Plan shall be unfunded. The Corporation shall not be required to segregate
any of its assets to assure the payment of any award under the Plan. Neither the
Participants nor any other persons shall have any interest in any fund or in any
specific asset or assets of the Corporation or any other entity by reason of any
Plan Award, except to the extent expressly provided hereunder. The interests of
each Participant and former Participant hereunder are unsecured and shall be
subject to the general creditors of the Corporation.
(g) Other Incentive Plans. The adoption of the Plan does not preclude
the adoption by appropriate means of any other incentive plan for employees.
(h) Plurals and Gender. Where appearing in the Plan, masculine gender
shall include the feminine and neuter genders, and the singular shall include
the plural, and vice versa, unless the context clearly indicates a different
meaning.
(i) Headings. The headings and sub-headings in this Plan are inserted
for the convenience of reference only and are to be ignored in any construction
of the provisions hereof.
(j) Severability. In case any provision of this Plan shall be held
illegal or void, such illegality or invalidity shall not affect the remaining
provisions of this Plan, but shall be fully severable, and the Plan shall be
construed and enforced as if said illegal or invalid provisions had never been
inserted herein.
(k) Payments Due Missing Persons. The Corporation shall make a
reasonable effort to locate all persons entitled to benefits under the Plan;
however, notwithstanding any provisions of this Plan to the contrary, if, after
a period of one (1) year from the date such benefit shall be due,
<PAGE>
any such persons entitled to benefits have not been located, their rights under
the Plan shall stand suspended. Before this provision becomes operative, the
Corporation shall send a certified letter to all such persons at their last
known address advising them that their rights under the Plan shall be suspended.
Subject to the requirement of any applicable state law, any such suspended
amounts shall be held by the Corporation for a period of one (1) additional year
and thereafter such amounts shall be forfeited and shall remain the property of
the Corporation.
(l) Liability and Indemnification. (i) Neither the Corporation nor any
Parent or Subsidiary shall be responsible in any way for any action or omission
of the Committee, or any other fiduciaries in the performance of their duties
and obligations as set forth in this Plan. Furthermore, neither the Corporation
nor any Parent or Subsidiary shall be responsible for any act or omission of any
of their agents, or with respect to reliance upon advice of their counsel
provided that the Corporation and/or the appropriate Parent or Subsidiary relied
in good faith upon the action of such agent or the advice of such counsel.
(ii) Except for their own gross negligence, willful misconduct or willful
breach of the terms of this Plan, the Corporation, each Parent and Subsidiary
and the Committee shall be held harmless by the Participants, former
Participants, beneficiaries and their representatives against liability or
losses occurring by reason of any act or omission.
(iii) Neither the Corporation, any Parent or Subsidiary, the Committee,
nor any agents, employees, officers, directors or stockholders of any of them,
nor any other person shall have any liability or responsibility with respect to
this Plan, except as expressly provided herein.
(m) Incapacity. If the Committee shall receive evidence satisfactory to
it that a person entitled to receive payment of any Plan Award is, at the time
when such benefit becomes payable, a minor, or is physically or mentally
incompetent to receive such Plan Award and to give a valid release thereof, and
that another person or an institution is then maintaining or has custody of such
person and that no guardian, committee or other representative of the estate of
such person shall have been duly appointed, the Committee may make payment of
such Plan Award otherwise payable to such person to such other person or
institution, including a custodian under a Uniform Gifts to Minors Act, or
corresponding legislation (who shall be an adult, a guardian of the minor or a
trust company), and the release of such other person or institution shall be a
valid and complete discharge for the payment of such Plan Award.
(n) Cooperation of Parties. All parties to this Plan and any person
claiming any interest hereunder agree to perform any and all acts and execute
any and all documents and papers which are necessary or desirable for carrying
out this Plan or any of its provisions.
(o) Governing Law. All questions pertaining to the validity,
construction and administration of the Plan shall be determined in accordance
with the laws of the State of Delaware.
(p) Nonguarantee of Employment. Nothing contained in this Plan shall be
construed as a contract of employment between the Corporation (or any Parent or
Subsidiary), and any
<PAGE>
employee or Participant, as a right of any employee or Participant to be
continued in the employment of the Corporation (or any Parent or Subsidiary), or
as a limitation on the right of the Corporation or any Parent or Subsidiary to
discharge any of its employees, with or without cause.
(q) Nonguarantee of Franchise Contract. Nothing contained in this Plan
shall be construed as a franchise contract between the Corporation and any
Franchisee (or any other entity), as a right of any Franchisee (or any other
entity) to be continued under a franchise contract with the Corporation, or as a
limitation on the right of the Corporation to terminate any franchise contract
with or without cause.
(r) Notices. Each notice relating to this Plan shall be in writing and
delivered in person or by certified mail to the proper address. All notices to
the Corporation or the Committee shall be addressed to it at 177 Crossways Park
Drive, Woodbury, New York 11797, Attn: Secretary. All notices to Participants,
former Participants, beneficiaries or other persons acting for or on behalf of
such persons shall be addressed to such person at the last address for such
person maintained in the Committee's records.
(s) Written Agreements. Each Plan Award shall be evidenced by a signed
written agreement between the Corporation and the Participant containing the
terms and conditions of the award.
10. Definitions
(a) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(b) "Disability" shall have the same meaning as the term permanent and
total disability under Section 22(e)(3) of the Code.
(c) "Fair Market Value" of the Corporation's Common Stock on a Trading
Day shall mean the last reported sale price for Common Stock or, in case no such
reported sale takes place on such Trading Day, the average of the closing bid
and asked prices for the Common Stock for such Trading Day, in either case on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading, or if the Common Stock is not listed or admitted to
trading on any national securities exchange, but is traded in the over-the-
counter market, the closing sale price of the Common Stock or, if no sale is
publicly reported, the average of the closing bid and asked quotations for the
Common Stock, as reported by the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or any comparable system or, if the Common
Stock is not listed on NASDAQ or a comparable system, the closing sale price of
the Common Stock or, if no sale is publicly reported, the average of the closing
bid and asked prices, as furnished by two members of the National Association of
Securities Dealers, Inc. who make a market in the Common Stock selected from
time to time by the Corporation for that purpose. In addition, for purposes of
this definition, a "Trading Day" shall mean, if the Common Stock is listed on
any national securities exchange, a business day during which such exchange was
open for trading and at least one trade of Common Stock was effected on such
exchange on such business day, or, if the Common Stock is not listed on any
national securities exchange but is
<PAGE>
traded in the over-the-counter market, a business day during which the over-the-
counter market was open for trading and at least one "eligible dealer" quoted
both a bid and asked price for the Common Stock. An "eligible dealer" for any
day shall include any broker-dealer who quoted both a bid and asked price for
such day, but shall not include any broker-dealer who quoted only a bid or only
an asked price for such day. In the event the Corporation's Common Stock is not
publicly traded, the Fair Market Value of the Common Stock shall be determined
by the Committee in good faith.
(d) "Franchise Relationship" shall exist between an individual and the
Corporation if (i) such individual or (ii) any entity of which such individual
is an executive or owns a majority equity interest has entered into a written
franchise contract with the Corporation.
(e) "Franchisee" shall mean an individual who is in a Franchise
Relationship with the Corporation.
(f) "Good Cause" shall mean (i) a Participant's willful or gross
misconduct or willful or gross negligence in the performance of his duties for
the Corporation or for any Parent or Subsidiary after prior written notice of
such misconduct or negligence and the continuance thereof for a period of 30
days after receipt by such Participant of such notice, (ii) a Participant's
intentional or habitual neglect of his duties for the Corporation or for any
Parent or Subsidiary after prior written notice of such neglect, or (iii) a
Participant's theft or misappropriation of funds of the Corporation or of any
Parent or Subsidiary or commission of a felony.
(g) "Parent" shall mean a parent corporation of the Corporation within
the meaning of Section 424(e) of the Code.
(h) "Participant" shall mean any employee or other individual (including
a Director Participant) participating under the Plan.
(i) "Retirement" shall mean the termination of employment by a
Participant in the Plan from the Corporation or from any Parent or Subsidiary,
who at the time of such termination is at least sixty-two (62) years of age and
who has completed at least five (5) years of service (at least 1,000 hours in
any fiscal year) with the Corporation or any Parent or Subsidiary, or any
combination thereof.
(j) "Subsidiary" shall mean a subsidiary corporation of the Corporation
within the meaning of Section 424(f) of the Code.
(k) "Termination of Franchise Relationship" shall mean the cessation,
abridgment or termination of a Franchisee's Franchise Relationship with the
Corporation as a result of (i) the Franchisee's death, (ii) the cancellation,
annulment, expiration, termination or breach of the written franchise contract
between the Corporation and the Franchisee (or any other entity) giving rise to
such Franchise Relationship, or (iii) if the written franchise contract is not
directly between the Corporation and the Franchise, the Franchisee's termination
of service with or sale of substantially all of his equity interest in the
entity which has entered into the written franchise contract with the
Corporation.
<PAGE>
11. Amendment or Termination of Plan
The Board of Directors of the Corporation shall have the right to amend,
suspend or terminate the Plan at any time, provided that no amendment shall be
made which shall increase the total number of shares of the Common Stock of the
Corporation which may be issued and sold pursuant to options or awards granted
under the Plan, reduce the minimum option price in the case of an incentive
stock option, or modify the provisions of the Plan relating to eligibility with
respect to incentive stock options unless such amendment is made by or with the
approval of the stockholders (such approval being granted within 12 months of
the effective date of such amendment). The Board of Directors of the Corporation
shall be authorized to amend the Plan and the options granted thereunder (i) to
maintain qualification as "incentive stock options" within the meaning of
Section 422 of the Code, if applicable, or (ii) to comply with Rule 16b-3 (or
any successor rule) promulgated under the Exchange Act. Except as otherwise
provided herein, no amendment, suspension or termination of the Plan shall alter
or impair any awards previously granted under the Plan, without the consent of
the holder thereof.
12. Term of Plan
The Plan shall remain in effect until the earlier of September 15, 2003 or
the tenth anniversary of the date the Plan was adopted by the Board of Directors
of the Corporation, unless sooner terminated by such Board of Directors. No
awards or grants may be made under the Plan subsequent to the termination of the
Plan.
13. Claims Procedures.
(a) If any Participant, former Participant or beneficiary is denied any
vested benefit to which he is, or reasonably believes he is, entitled under this
Plan, either in total or in an amount less than the full vested benefit to which
he would normally be entitled, the Committee shall advise such person in writing
of the specific reasons for the denial. The Committee shall also furnish such
person at the time with a written notice containing (i) a specific reference to
pertinent Plan provisions, (ii) a description of any additional material or
information necessary for such person to perfect his claim, if possible, and an
explanation of why such material or information is needed, and (iii) an
explanation of the Plan's claim review procedure.
(b) Within 60 days of receipt of the information stated in subsection
(a) above, such person shall, if he desires further review, file a written
request for reconsideration with the Committee.
(c) So long as such person's request for review is pending (including
the 60 day period in subsection (b) above), such person or his duly authorized
representative may review pertinent Plan documents and may submit issues and
comments in writing to the Committee.
(d) A final and binding decision shall be made by the Committee within
60 days of the filing by such person of this request for reconsideration;
provided, however, that if the
<PAGE>
Committee, in its discretion, feels that a hearing with such person or his
representative is necessary or desirable, this period shall be extended for an
additional 60 days.
(e) The Committee's decision shall be conveyed to such person in writing
and shall include specific reasons for the decision, written in a manner
calculated to be understood by such person, and the specific references to the
pertinent Plan provisions on which the decision is based.
(f) Notwithstanding any provisions of this Plan to the contrary, no
Participant (nor the estate or other beneficiary of a Participant) shall be
entitled to assert a claim against the Corporation (or against any Parent or
Subsidiary) more than three years after the date the Participant (or his estate
or other beneficiary) initially is entitled to receive benefits hereunder.
<PAGE>
EXHIBIT 4.6
OPTION NO. 93-NQO
- --------------------------------------------------------------------------------
CAREER HORIZONS, INC.
1993 Stock Option and Performance Award Plan
NON-QUALIFIED STOCK OPTION
Granted To
___________________
Optionee
Number of Shares: Price per Share:
--------- --------
DATE GRANTED: EXPIRATION DATE:
------------------ ------------------
- --------------------------------------------------------------------------------
<PAGE>
CAREER HORIZONS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT made as of this day of , 19 , between
--- ------------ --
CAREER HORIZONS, INC., a Delaware corporation (hereinafter referred to as the
"Company"), and [ ], residing at [ ] (hereinafter referred
to as the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires, in connection with the employment of the
Employee and in accordance with its 1993 Stock Option and Performance Award Plan
(the "Plan"), to provide the Employee with an opportunity to acquire Class A
common stock, $.01 par value (hereinafter referred to as "Common Stock"), of the
Company on favorable terms and thereby increase his proprietary interest in the
continued progress and success of the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein set forth and other good and valuable consideration, the
Company and the Employee hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by
-------------------------------
the Stock Option Committee of the Board of Directors of the Company authorized
to administer the Plan, made on , 19 (the "Date of Grant"), the
------------ --
Company, subject to the terms of the Plan and this Agreement, hereby confirms
that the Employee has been granted as a matter of separate inducement and
agreement, and in addition to and not in lieu of salary or other compensation
for services, the right to purchase (hereinafter referred to as the "Option") an
aggregate of [ ] shares of Common Stock, subject to adjustment as
provided in Section 8 hereof (such shares, as adjusted, shall hereinafter be
referred to as the "Shares"). The Option is not intended to qualify as an
---
incentive stock option under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). Notwithstanding any other provision of the Plan or
this Agreement to the contrary, this Option shall be null and void, and become
non-exercisable, if the Plan is not approved by the stockholders of the Company
prior to September 30, 1994.
2. Purchase Price. The purchase price of shares of Common Stock
--------------
covered by the Option will be $ per share, subject to adjustment as provided
----
in Section 8 hereof.
3. Exercise of Option. The Option shall be exercisable on the terms
------------------
and conditions hereinafter set forth:
-1-
<PAGE>
(a) The Option shall become exercisable cumulatively as to the
following amounts of the number of Shares originally subject thereto (after
giving effect to any adjustment pursuant to Section 8 hereof), on the dates
indicated:
(i) as to [ ] Shares on or after, [ ];
(ii) as to [ ] Shares on or after, [ ];
(iii) as to [ ] Shares on or after, [ ]; and
(iv) as to [ ] Shares on or after, [ ].
(b) The Option may be exercised pursuant to the provisions of
this Section 3, by notice and payment to the Company as provided in Section 11
and 16 hereof.
4. Term of Option. The term of the Option shall be a period of five
--------------
(5) years from the Date of Grant, subject to earlier termination of cancellation
as provided in this Agreement. This Option, to the extent unexercised, shall
expire at the end of the term set forth in the immediately preceding sentence.
The holder of the Option shall not have any rights to dividends or any other
rights of a stockholder with respect to any shares of Common Stock subject to
the Option until such shares shall have been issued to him (as evidenced by the
appropriate entry on the books of a duly authorized transfer agent of the
Company) provided that the date of issuance shall not be earlier than the
Closing Date (as hereinafter defined with respect to such shares pursuant to
Section 11 hereof) upon purchase of such shares upon exercise of the Option.
5. Non-transferability of Option. The Option shall not be
-----------------------------
transferable otherwise than by will or by the laws of descent and distribution,
or pursuant to a domestic relations order, and the Option may be exercised
during the lifetime of the Employee only by him. More particularly, but without
limiting the generality of the foregoing, the Option may not be assigned,
transferred (except as provided in the next preceding sentence) or otherwise
disposed of, or pledged or hypothecated in any way, and shall not be subject to
execution, attachment or other process. Any assignment, transfer, pledge,
hypothecation or other disposition of the Option attempted contrary to the
provisions of this Agreement, or any levy of execution, attachment or other
process attempted upon the Option, will be null and void and without effect. Any
attempt to make any such assignment, transfer, pledge, hypothecation or other
disposition of the Option or any attempt to make any levy of execution,
attachment or other process will cause the Option to terminate immediately upon
the happening of any such event; provided, however, that any such termination of
the Option under the foregoing provisions of this Section 5 will not prejudice
any rights or remedies which the Company or any Parent or Subsidiary may have
under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment. (a) If the Employee at any
-------------------------------------
time
-2-
<PAGE>
ceases to be an employee of the Company and of any Parent or Subsidiary by
reason of his discharge for Good Cause, the Option shall forthwith terminate and
the Employee shall forfeit all rights hereunder. If, however, the Employee for
any other reason (other than Retirement, Disability or death) ceases to be such
an employee, the Option may be exercised by the Employee to the same extent the
Employee would have been entitled under Section 3 hereof to exercise the Option
on the day next preceding the date of such cessation of employment, at any time
within three (3) months after such cessation employment, at the end of which
period the Option, to the extent not then exercised, shall terminate and the
Employee shall forfeit all rights hereunder, even if the Employee subsequently
returns to the employ of the Company or any Parent or Subsidiary. In no event,
however, may the Option be exercised after the expiration of the term provided
in Section 4 hereof.
(b) The Option shall not be affected by any change of duties or
position of the Employee so long as he continues to be a full-time employee of
the Company or any Parent or Subsidiary thereof. If the Employee is granted a
temporary leave of absence shall be deemed a continuation of his employment by
the Company or any Parent or Subsidiary thereof for the purpose of this
Agreement, but only if and so long as the employing corporation consents
thereto.
7. Exercise Upon Death, Disability or Retirement. (a) If the
---------------------------------------------
Employee dies while he is employed by the Company or by and Parent or
Subsidiary, and on or after the first date upon which he would have been
entitled to exercise all or any portion of the Option under the provisions of
Section 3 hereof, the Option may, subject to the provisions of Section 5 hereof,
be exercised with respect to that number of the shares of stock as to which the
deceased Employee had not exercised the Option at the time of his death and with
respect to which the Option was exercisable at such time, by the estate of the
Employee (or by the person or persons who acquire the right to exercise the
Option by written designation of the Employee) at any time within the period
ending two (2) years after the death of the Employee, at the end of which period
the Option, to the extent not then exercised, shall terminate and the estate or
other beneficiaries shall forfeit all rights hereunder. In no event, however,
may the Option be exercised after the expiration of the term provided in Section
4 hereof.
(b) In the event that the employment of the Employee by the
Company and any Parent or Subsidiary is terminated by reason of the Disability
or Retirement of the Employee on or after the first date upon which he would
have been entitled to exercise all or any portion of the Option under the
provisions of Sections hereof, the Option may, subject to the provisions of
Section hereof, be exercised with respect to that number of the shares of stock
as to which he had not exercised the Option at the time of his Disability or
Retirement and respect to which the Option was exercisable at such time by the
Employee at any time within the period ending one (1) year after the date of
such termination of employment (in no event, however, after the expiration of
the term provided in Section 4 hereof), a the end of which period the Option, to
the extent not then exercised, shall terminate and the Employee shall forfeit
all rights hereunder even if the Employee subsequently returns to the employ of
-3-
<PAGE>
Company or any Parent or Subsidiary.
8. Adjustments. In the events there is any change in the Common
-----------
Stock of the Company by reason of any reorganization, recapitalization, stock
split, stock dividend or otherwise, there shall be substituted for or added to
each share of Common Stock theretofore appropriated or thereafter subject, or
which may became subject, to this Option the number and kind of shares of stock
or other securities into which each outstanding share of Common Stock shall be
so changed or for which each such share shall be exchanged, or to which each
such share to entitled, as the case may be, and the per share price thereof also
shall be appropriately adjusted.
9. Change in Control or Termination of Company. If there is a
-------------------------------------------
"Change in Control of the Company" (as hereinafter defined), the Employee shall
have the right to exercise this Option (to the extent not exercised and not
otherwise expired or terminated) in whole or in part without regard to any
installment provision that may have been made part of the terms and conditions
of this Option provided that any conditions precedent to the exercise of this
Option, other than the passage of time, have occurred. A "Change in control of
the Company" shall be deemed to have occurred if (i) any person (including any
individual, firm, partnership or other entity) together with all Affiliates and
Associates (as defined under Rule 12b-2 of the General Rules and Regulations
promulgated under the Securities Exchange Act if 1934, as amended (the "Exchange
Act")) of such person, but excluding (A) any stockholder of the Company as of
the date of this Agreement, (B) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any Subsidiary (as defined
below) of the Company, (C) a corporation owned, directly or indirectly, by the
stockholders of the Company, (D) the Company or any Subsidiary of the Company,
or (E) a person who acquires securities of the Company directly from the Company
pursuant to a transaction that has been approved by a vote of at least a
majority of the Continuing Directors (as defined below), is or becomes the
Beneficial Owner (as defined in rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of securities of the Company (other than securities
acquired pursuant to the Company's initial public offering) representing 40% or
more of the combined voting power of the Company's then outstanding securities,
such person being hereinafter referred to as an Acquiring Person; (ii)
individuals who, on the date hereof, are Continuing Directors (as defined below)
shall cease for any reason to constitute a majority of the Board of Directors of
the Company (the "Board"); or (iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company agreement for the sale or disposition by
the Company of all or substantially of the Company's assets. For purposes of
this Section, the term "Continuing Director" shall mean (i) any member of
the Board, while
-4-
<PAGE>
such person is a member of the board, who was a member of the Board prior to the
date of this Agreement, or (ii) any person who subsequently becomes a member of
the Board, while such person is a member of the Board (excluding an Acquiring
Person or a representative of any Acquiring Person), if such person's nomination
for election or election to the Board is shall mean any corporation of which an
amount of voting securities sufficient to elect at least a majority of the
directors of such corporation is beneficially owned, directly or indirectly, by
the Company, or is otherwise controlled by the Company.
10. Registration. The shares of Common Stock subject hereto and
------------
issuable upon the exercise hereof may not be registered under the Securities Act
of 1933, as amended, and, if required upon the request of counsel to the
Company, the Employee will give a representation as to his investment intent
with respect to such shares prior to their issuance as set forth in Section 11
hereof.
The Company may register or qualify the shares covered by the Option
for sale pursuant to the Securities Act of 1933, as amended, at any time prior
to or after the exercise in whole or in part of the Option.
11. Method of Exercise of Option. (a) Subject to the terms and
----------------------------
conditions of this Agreement, the Option shall be exercisable by notice (in
manner set forth in Exhibit A hereto) and payment to the Company in accordance
with the procedure prescribed herein. Each such notice shall:
(i) state the election to exercise the Option and the number
of Shares in respect of which it is being exercised;
(ii) contain a representation and agreement as to investment
intent, of required by counsel to the Company with respect to such Shares,
in form satisfactory to counsel for the Company;
(iii) be signed by the Employee or the person or persons
entitled to exercise the Option and, if the Option is being exercised by
any person other than the Employee, be accompanied by proof, satisfactory
to counsel for the Company, of the right of such person or persons to
exercise the Option; and
(iv) be received by the Company on or before the date of the
expiration of this Option. In the event the date of expiration of this
Option falls on a day which is not a regular business day at the Company's
executive office in Woodbury, New York, then such written notice must be
received at such office on or before the last regular business day prior to
such date of expiration.
(b) Upon receipt of such notice, the Company shall specify, by
written
-5-
<PAGE>
notice to the Employee or to the person or persons exercising the Option, a date
and time (such date and time being herein called the "Closing Date") and place
for payment of the full purchase price of such Shares. The Closing Date shall
not be more than fifteen days from the date the notice of exercise is received
by the Company unless another date is agreed upon by the Company and the
Employee or the person or persons exercising the Option or is required upon
advice of counsel for the Company in order to meet the requirements of Section
12 hereof.
(c) Payment of the purchase price of any shares of Common Stock, in
respect of which the Option shall be exercised, shall be made by the Employee or
such person or persons at the place specified by the Company on or before the
Closing Date by delivering to the Company (i) with the consent of the Committee,
a certified or bank cashier's check payable to the order of the Company, or (ii)
properly endorsed certificates of shares of Common Stock (or certificates
accompanied by an appropriate stock power) with signature guaranties by a bank
or trust company representing shares of Common Stock held by the Employee for
at least six months prior to the date of delivery thereof, or (iii) any
combination of the above.
(d) The Option shall be deemed to have been exercised with respect to
any particular shares of Common Stock if, and only if, the proceeding provisions
of this Section 11 and the provisions of Section 12 hereof shall have been
complied with, in which the event the Option shall be deemed to have been
exercised on the date the notice of exercise of the Option was received by the
Company. Anything in this Agreement to the contrary notwithstanding, any notice
of exercise given pursuant to the provisions of this Section 11 shall be void
and of no effect if all the preceding provisions of this Section 11 and the
provisions of Section 12 shall not have been complied with.
(e) The certificate or certificates for shares of Common Stock as to
which the Option shall be exercised will be registered in the name of the
Employee (or in the name of the Employee's estate or other beneficiary if the
Option is exercised after the Employee's death), or if the Option is exercised
by the Employee and if the Employee so requests in the notice exercising the
Option, will be registered in the name of the Employee and another person
jointly, with right of survivorship and will be delivered on the Closing Date to
the Employee at the place specified for the closing, but only upon compliance
with all of the provisions of this Agreement.
(f) If the Employee fails to accept delivery of and pay for all or
any part of the number of Shares specified in such notice upon tender or
delivery thereof on the Closing Date, his right to exercise the Option with
respect to such undelivered Shares may be terminated in the sole discretion of
the Board of Directors of the Company. The Option may be exercised only with
respect to full Shares.
(g) The Company shall not be required to issue or deliver any
certificate or certificates for shares of its Common Stock purchased upon the
exercise of any part of this Option prior to the payment to the Company, upon
its demand, of any amount requested
-6-
<PAGE>
by the Company for the purpose of satisfy its liability, if any, to withhold
state or local income or earnings tax or any other applicable tax or assessment
(plus interest or penalties thereon, if any, caused by a delay in making such
payment) incurred by reason of the exercise of this Option or the transfer of
shares thereupon. Such payment shall be made by the Employee in cash or, the
Company may, at its option, satisfy such statutory withholding requirements by
withholding from the shares of Common Stock to be delivered to the Employee
pursuant to an exercise of this Option a number of shares of Common Stock equal
in value to the amount of the required statutory withholding.
12. Approval of Counsel. The exercise of the Option and the issuance
-------------------
and delivery of shares of Common Stock pursuant thereto shall be subject to
approval by the Company's counsel of all legal matters in connection therewith,
including, but not limited to, compliance with the requirements of the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, and the requirements of any
stock exchange upon which the Common Stock may then be listed.
13. Resale of Common Stock. (a) If so requested by the Company, upon
----------------------
any sale or transfer of the Common Stock purchased upon exercise of the Option,
the Employee shall deliver to the Company an opinion of counsel satisfactory to
the Company to the effect that either (i) the Common Stock to be sold or
transferred has been registered under the Securities Act of 1933, as amended,
and that there is in effect a current prospectus meeting the requirements of
Section 10(a) of said Act which is being or will be delivered to the purchaser
or transferee at or prior to the time of delivery of the certificates evidencing
the Common Stock to be sold or transferred, or (ii) such Common Stock may then
be sold without violating Section 5 of said Act.
(b) The Common Stock issued upon exercise of the Option shall
bear the following legend if required by counsel for the Company:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY
NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL
FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
14. Reservation of Shares. Unless the open market is used to acquire
---------------------
shares pursuant to an exercise of this Option, the Company shall at all times
during the term of the Option reserve and keep available such number of shares
of the class of stock then subject to the Option as will be sufficient to
satisfy the requirements of this Agreement.
15. Limitation of Action. The Employee and the Company each
--------------------
acknowledges
-7-
<PAGE>
that every right of action accruing to him or it, as the case may be, and
arising out of or in connection with this Agreement against the Company or a
Parent or Subsidiary, on the one hand, or against the Employee, on the other
hand, shall, irrespective of the place where an action may be brought, cease and
be barred by the expiration of three years from the date of the act or omission
in respect of which such right of action arises.
16. Notices. Each notice relating to this Agreement shall be in
-------
writing and delivered in person or by certified mail to the proper address. All
notices to the Company or the Committee shall be addressed to them at 177
Crossways Park Drive, Woodbury, New York 11797, Attn: Secretary. All notices to
the Employee shall be addressed to the Employee or such other person or persons
at the Employee's address above specified. Anyone to whom a notice may be given
under this Agreement may designate a new address by notice to that effect.
17. Benefits of Agreement. This Agreement shall inure to the
---------------------
benefit of and be binding upon each successor and assign of the Company. All
obligations imposed upon the Employee and all rights granted to the Company
under this Agreement shall be binding upon the Employee's heirs, legal
representatives and successors.
18. Severability. In the event that any one or more provisions of
------------
this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
19. Governing Law. This Agreement will be construed and governed in
-------------
accordance with the laws of the State of Delaware.
20. Employment. Nothing contained in this Agreement shall be
----------
construed as (a) a contract of employment between the Employee and the Company
or any Parent or Subsidiary, (b) as a right of the Employee to be continued in
the employ of the Company or any Parent or Subsidiary, or (c) as a limitation of
the right of the Company or any Parent or Subsidiary to discharge the Employee
at any time, with or without cause.
21. Definitions. Unless otherwise defined herein, all capitalized
-----------
terms shall have the same definitions as set forth under the Plan.
22. Incorporation of Terms of Plan. This agreement shall be
------------------------------
interpreted under, and subject to, all of the terms and provisions of the Plan,
which are incorporated herein by reference.
-8-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries and the Employee has hereunto set his hand all as of
the date, month and year first above written.
CAREER HORIZONS, INC.
By:____________________________
Name:
Title: President
________________________________
[Name of Employee]
_________________________________
Social Security Number
ATTEST:
___________________
Secretary
-9-
<PAGE>
EXHIBIT 4.7
OPTION NO. 93-ISO-
================================================================================
CAREER HORIZONS, INC.
1993 Stock Option and Performance Award Plan
INCENTIVE STOCK OPTION
Granted To
________________
Optionee
Number of Shares Price per Share (Fair Market
------ Value on Date of Grant) $
-----
DATE GRANTED: EXPIRATION DATE:
------------------- -------------------
================================================================================
<PAGE>
CAREER HORIZONS, INC.
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
AGREEMENT made as of this day of , 19 , between
----- ------------ --
CAREER HORIZONS, INC., a Delaware corporation (hereinafter referred to as the
"Company"), and [ ], residing at [ ] (hereinafter referred to as
the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires, in connection with the employment of the
Employee and in accordance with its 1993 Stock Option and Performance Award Plan
(the "Plan"), to provide the Employee with an opportunity to acquire Class A
common stock, $.01 par value (hereinafter referred to as "Common Stock"), of the
Company on favorable terms and thereby increase his proprietary interest in the
continued progress and success of the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein set forth and other good and valuable consideration, the Company and the
Employee hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by
-------------------------------
Stock Option Committee of the Board of Directors of the Company authorized to
administer the Plan, made on , 19 (the "Date of Grant"), the
------------ --
Company, subject to the terms of the Plan and this Agreement, hereby confirms
that the Employee has been granted as a matter of separate inducement and
agreement, and in addition to and not in lieu of salary or other compensation
for services, the right to purchase (hereinafter referred to as the "Option")
an aggregate of [ ] shares of Common Stock, subject to adjustment as
provided in Section 9 hereof (such shares, as adjusted, shall hereinafter be
referred to as the "Shares"). The Option is intended to qualify as an incentive
stock option under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"). Notwithstanding any other provision of the Plan or this Agreement
to the contrary, this Option shall be null and void, and become non-exercisable,
if the Plan is not approved by the stockholders of the Company prior to
September 30, 1994.
2. Purchase Price. The purchase price of shares of Common Stock
--------------
covered by the Option will be $ per share, being not less than 100% of the
----
Fair Market Value of a share of Common Stock on the Date of Grant, subject to
adjustment as provided in Section 9 hereof.
-1-
<PAGE>
3. Exercise of Option. The Option shall be exercisable on the terms
------------------
and conditions hereinafter set forth:
(a) The Option shall become exercisable cumulatively as to the
following amounts of the number of Shares originally subject thereto (after
giving effect to any adjustment pursuant to Section 9 hereof), on the dates
indicated:
(i) as to [ ] Shares on or after [ ];
(ii) as to [ ] Shares on or after [ ];
(iii) as to [ ] Shares on or after [ ]; and
(iv) as to [ ] Shares on or after [ ].
(b) The Option may be exercised pursuant to the provisions of
this Section 3, by notice and payment to the Company as provided in Sections 12
and 17 hereof.
4. Term of Option. The term of the Option shall be a period of five
--------------
(5) years from the Date of Grant, subject to earlier termination or cancellation
as provided in this Agreement. This Option, to the extent unexercised, shall
expire at the end of the term set forth in the immediately preceding sentence.
The holder of the Option shall not have any rights to dividends or any other
rights of a stockholder with respect to any shares of Common Stock subject to
the Option until such shares shall have been issued to him (as evidenced by the
appropriate entry on the books of a duly authorized transfer agent of the
Company) provided that the date of issuance shall not be earlier than the
Closing Date (as hereinafter defined with respect to such shares pursuant to
Section 12 hereof) upon purchase of such shares upon exercise of the Option.
5. Non-transferability of Option. The Option shall not be
-----------------------------
transferable otherwise than by will or by the laws of descent and distribution
or pursuant to a domestic relations order and the Option may be exercised during
the lifetime of the Employee only by him. More particularly, but without
limiting the generality of the foregoing, the Option may not be assigned,
transferred (except as provided in the next preceding sentence) or otherwise
disposed of, or pledged or hypothecated in any way, and shall not be subject to
execution, attachment or other process. Any assignment, transfer, pledge,
hypothecation or other disposition of the Option attempted contrary to the
provisions of this Agreement, or any levy of execution, attachment or other
process attempted upon the Option, will be null and void and without effect. Any
attempt to make any such assignment, transfer, pledge, hypothecation or other
disposition of the Option or any attempt to make any such levy of execution,
attachment or other process will cause the Option to terminate immediately upon
the happening of any such event; provided, however, that ny such termination of
the Option under the foregoing provisions of this Section 5 will not prejudice
any rights or remedies which the Company or any
-2-
<PAGE>
Parent or Subsidiary may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment. (a) If the Employee at any
-------------------------------------
time ceases to be an employee of the Company and of any Parent or Subsidiary by
reason of this discharge for Good Cause, the Option shall forthwith terminate
and the Employee shall forfeit all rights hereunder. If, however, the Employee
for any other reason (other than Retirement, Disability or death) ceases to be
such an employee, the Option may, subject to the provisions of Section 8 hereof,
be exercised by the Employee to the same extent the Employee would have been
entitled under Section 3 hereof to exercise the Option on the day next preceding
the date of such cessation of employment, at any time within three (3) months
after such cessation of employment, at the end of which period the Option to the
extent not then exercised, shall terminate and the Employee shall forfeit all
rights hereunder, even if the Employee subsequently returns to the employ of
the Company or any Parent or Subsidiary. In no event, however, may the Option
be exercised after the expiration of the term provided in Section 4 hereof.
(b) The Option shall not be affected by any change of duties or
position of the Employee so long as he continues to be a full-time employee of
the Company or any Parent or Subsidiary thereof. If the Employee is granted a
temporary leave of absence, such leave of absence shall be deemed a continuation
of his employment by the Company or any Parent or Subsidiary thereof for the
purposes of this Agreement, but only if and so long as the employing corporation
consents thereto.
7. Exercise Upon Death, Disability, or Retirement. (a) If the
----------------------------------------------
Employee dies while he is employed by the Company or by any Parent or
Subsidiary, and on or after the first date upon which he would have been
entitled to exercise all or any portion of the Option under the provisions of
Section 3 hereof, the Option may, subject to the provisions of Sections 5 and 8
hereof, be exercised with respect to that number of the shares of stock as to
which the deceased Employee had not exercised the Option at the time of his
death and with respect which the Option was exercisable at such time, by the
estate of the Employee (or by the person or persons who acquire the right to
exercise the Option by written designation of the Employee) at any time within
the period ending two (2) years after the death of the Employee, at the end of
which period the Option, to the extent not then exercised, shall terminate and
the estate or other beneficiaries shall forfeit all rights hereunder. In no
event, however, may the Option be exercised after the expiration of the term
provided in Section 4 hereof.
(b) In the event that the employment of the Employee by the
Company and any Parent or Subsidiary is terminated by reason of the Disability
or Retirement of the Employee on or after the first date upon which he would
have been entitled to exercise all or any portion of the Option under the
provisions of Section 3 hereof, the Option may, subject to the provisions of
Section 5 and 8 hereof, be exercised with respect to that number of the shares
of stock as to which he had not exercised the Option at the time of his
Disability or Retirement and with respect to which the Option was exercisable at
such time by the Employee (i) in the case of his Disability, at any time within
the period ending one (i) year after the date of such
-3-
<PAGE>
termination of employment, and (ii) in the case of his Retirement, at any time
within the period ending three (3) months after the date of such termination of
employment, at the end of which period the Option, to the extent not then
exercised, shall terminate and the Employee shall forfeit all rights hereunder
even if the Employee subsequently returns to the employ of the Company or any
Parent or Subsidiary. In no event, however, may the Option be exercised after
the expiration of the term provided in Section 4 hereof.
8. Limitation on Exercisability. To the extent the aggregate of the
----------------------------
(a) Fair Market Value of Common Stock (determined as of the date of this
Agreement) subject to purchase under this Option and (b) the fair market values
(determined as of the appropriate date(s) of grant) of all other shares of stock
subject to incentive stock options granted to the Employee by the Company or any
Parent or Subsidiary, which are exercisable for the first time by any individual
during any calendar year, exceed(s) one hundred thousand dollars ($100,000),
such excess shares of stock shall not be deemed to be purchased pursuant to
incentive stock options. The terms of the immediately preceding sentence shall
be applied by taking options into account in the order in which they are
granted.
9. Adjustments. In the event there is any change in the Common
-----------
Stock of the Company by reason of any reorganization, recapitalization, stock
spilt, stock dividend or otherwise, there shall be substituted for or added to
each share of Common Stock theretofore appropriated or thereafter subject, or
which may become subject, to this Option the number and kind of shares of stock
or other securities into which each outstanding share of Common Stock shall be
so changed or for which each such share shall be exchanged, or to which each
such share be entitled, as the case may be, and the per share price thereof also
shall be appropriately adjusted; provided, however, that no such adjustment
shall be made so as to deem such modification, extension or renewal of the
Option as the issuance of a new option under Section 424(h) of the Code, or so
as to prevent the Company or any other corporation or subsidiary thereof, if the
Employee shall become employed by such corporation by reason of the transaction
in respect of which such adjustment is made, from being a corporation issuing or
assuming the Option in a transaction to which Section 424(a) of the Code
applies.
10. Change in Control of Company. Subject to the provisions of
----------------------------
Section 8 hereof, if there is a "Change in Control of the Company" (as
hereinafter defined), the Employee shall have the right to exercise this Option
(to the extent not exercised and not otherwise expired or terminated) in whole
or in part without regard to any installment provision that may have been made
part of the terms and conditions of this Option provided that any conditions
precedent to the exercise of this Option, other than the passage of time, have
occurred. A "Change in Control of the Company" shall be deemed to have occurred
if (i) any person (including any individual, firm, partnership or other entity)
together with all Affiliates and Associates (as defined under Rule 12b-2 of the
General Rules and Regulations promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of such person, but excluding (A) any
stockholder of the Company as of the date of this Agreement, (B) a trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any Subsidiary (as defined
-4-
<PAGE>
below) of the Company, (C) a corporation owned, directly or indirectly, by
stockholders of the Company in substantially the same proportions as their
ownership of the Company, (D) the Company or any Subsidiary of the Company, or
(E) a person who acquires securities of the Company directly from the Company
pursuant to a transaction that has been approved by a vote of at least a
majority of the Continuing Directors (as defined below), is or becomes the
Beneficial Owner (as defined in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of securities of the Company (other than securities
acquired pursuant to the Company's initial public offering) representing 40% or
more of the combined voting power of the Company's then outstanding securities,
such person being hereinafter referred to as an Acquiring person;(ii)
individuals who, on the date hereof, are Continuing Directors (as defined below)
shall cease for any reason to constitute a majority of the Board of Directors of
the Company (the Board"); or (iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets.
For purposes of this Section, the term "Continuing Director" shall mean (i) any
member of the Board, while such person is a member of the Board who was a member
of the Board prior to the date of this Agreement, or (ii) any person who
subsequently becomes a member of the Board, while such person is a member of the
Board (excluding an Acquiring person or a representative of any Acquiring
person), if such person's nomination for election or election to the Board is
recommended or approved by a majority of the Continuing Directors, and the term
"Subsidiary" shall mean any corporation of which an amount of voting securities
sufficient to elect at least a majority of the directors of such corporation is
beneficially owned, directly or indirectly, by the Company, or is otherwise
controlled by the Company.
11. Registration. The shares of Common Stock hereto and issuable
------------
upon the exercise hereof may not be registered under the Securities Act of 1993,
as amended, and, if required upon the request of counsel to the Company, the
Employee will give a representation as to his investment intent with respect to
such shares prior to their issuance as set forth in Section 12 hereof.
The Company may register or qualify the shares covered by the
Option for sale pursuant to the Securities Act of 1993,as amended, at any time
prior to or after the exercise in whole or in part of the Option.
12. Method of Exercise of Option. (a) Subject to the terms and
----------------------------
conditions of this Agreement, the Option shall be exercisable by notice (in the
manner set forth in Exhibit A hereto) and payment to the Company in accordance
with the Procedure prescribed herein. Each such notice shall:
-5-
<PAGE>
(i) state the election to exercise the Option and the number of
Shares in respect of which it is being exercised;
(ii) contain a representation and agreement as to investment
intent, if required by counsel to the Company with respect to such Shares,
in form satisfactory to counsel for the Company;
(iii) be signed by the Employee or the person or persons entitled
to exercise the Option and, if the Option is being exercised by any person
or persons other than the Employee, be accompanied by proof, satisfactory
to counsel for the Company, of the right of such person or persons to
exercise the Option; and
(iv) be received by the Company on or before the date of the
expiration of this Option. In the event the date of expiration of this
Option falls on a day which is not a regular business day at the Company's
executive office in Woodbury, New York, then such written notice must be
received at such office on or before the last regular business day prior to
such date of expiration.
(b) Upon receipt of such notice, the Company shall specify, by
written notice to the Employee or to the person or persons exercising the
Option, a date and time (such date and time being herein called the "Closing
Date") and place for payment of the full purchase price of such Shares. The
Closing Date shall not be more than fifteen days from the date the notice of
exercise is received by the Company unless another date is agreed upon by the
Company and the Employee or the person or persons exercising the Option or is
required upon advice of counsel for the Company in order to meet the
requirements of Section 13 herof.
(c) Payment of the purchase price of any shares of Common
Stock, in respect of which the Option shall be exercised, shall be made by the
Employee or such person or persons at the place specified by the Company on or
before the Closing Date by delivering to the Company (i) a certified or bank
cashier's check payable to the order of the Company, or (ii) with the consent of
the Committee, properly endorsed certificates of shares of Common Stock (or
certificates accompanied by an appropriate stock power) with signature
guaranties by a bank or trust company representing shares of Common Stock held
by the Employee for at least six months prior to the date of delivery thereof,
or (iii) any combination of the above.
(d) The Option shall be deemed to have been exercised with
respect to any particular shares of Common Stock if, and only if, the preceding
proisions of this Section 12 and the provisions of Section 13 hereof shall have
been complied with, in which event the Option shall be deemed to have been
exercised on the date the notice of exercise of the Option was received by the
Company. Anything in this Agreement to the contrary notwithstanding, any notice
of exercise given pursuant to the provisions of this Section 12 shall be void
and of no effect if all the prededing provisions of this Section 12 and the
provisions of Section 13 shall not have been complied with.
-6-
<PAGE>
(e) The certificate or certificates for shares of Common Stock
as to which the Option shall be exercised will be registered in the name of the
Employee (or in the name of the Employee's estate or other beneficiary if the
Option is exercised after the Employee's death), or if the Option is exercised
by the Employee and if the Employee so requests in the notice exercising the
Option, will be registered in the name of the Employee and another person
jointly, with right of survivorship and will be delivered on the Closing Date to
the Employee at the place specified for the closing, but only upon compliance
with all of the provisions of this Agreement.
(f) If the Employee fails to accept delivery of and pay for all
or any part of the number of Shares specified in such notice upon tender or
delivery thereof on the Closing Date, his right to exercise the Option with
respect to such undelivered Shares may be terminated in the sole discretion of
the Board of Directors of the Company. The Option may be exercised only with
respect to full Shares.
(g) In the event that any withholding tax is required to be paid
by the Employee because at the time of exercise hereof, all or any portion of
each exercise is not deemed the exercise of an incentive option under the Code,
the Company shall not be required to issue or deliver any certificate or
certificates for shares of its Common Stock purchased upon the exercise of any
part of this Option prior to the payment to the Company, upon its demand, of any
amount requested by the Company for the purpose of satisfying its liability, if
any, to withhold state or local income or earnings tax or any other applicable
tax or assessment (plus interest or penalties thereon, if any, caused by a delay
in making such payment) incurred by reason of the exercise of this Option or the
transfer of shares thereupon. Such payment shall be made by the Employee in cash
or, the Company may, at its option, satisfy such statutory withholding
requirements by withholding from the shares of Common Stock to be delivered to
the Employee pursuant to an exercise of this Option a number of shares of Common
Stock equal in value to the amount of the required statutory withholding.
13. Approval of Counsel. The exercise of the Option and the issuance
-------------------
and delivery of shares of Common Stock pursuant thereto shall be subject to
approval by the Company's counsel of all legal matters in connection therewith,
including compliance with the requirements of the Securities Act 1933, as
amended, and the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, and the requirements of any stock exchange upon which
the Common Stock may then be listed.
14. Resale of Common Stock. (a) If so requested by the Company, upon
----------------------
any sale or transfer of the Common Stock purchased upon exercise of the Option,
the Employee shall deliver to the Company an opinion of counsel satisfactory to
the Company to the effect that either (i) the Common Stock to be sold or
transferred has been registered under the Securities Act of 1933, as amended,
and that there is in effect a current prospectus meeting the requirements of
Section 10(a) of said Act which is being or will be delivered to the purchaser
or transferee at or prior to the time of delivery of the certificates evidencing
the Common Stock
-7-
<PAGE>
to be sold or transferred, or (ii) such Common Stock may then be sold without
violating Section 5 of said Act.
(b) The Common Stock issued upon exercise of the Option shall
bear the following legend if required by counsel for the Company:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT
BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR
THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
15. Reservation of Shares. Unless the open market is used to acquire
---------------------
shares pursuant to an exercise of this Option, the Company shall at all times
during the term of the Option reserve and keep available such number of shares
of the class of stock then subject to the Option as will be sufficient to
satisfy the requirements of this Agreement.
16. Limitation of Action. The Employee and the Company each
--------------------
acknowledges that every right action accruing to him or it, as the case may be,
and arising out of or in connection with this Agreement against the Company or a
Parent or Subsidiary, on the one hand, or against the Employee, on the other
hand, shall, irrespective of the place where an action may be brought, cease an
be barred by the expiration of three years from the date of the act or omission
in respect of which such right of action arises.
17. Notices. Each notice relating to this Agreement shall be in
-------
writing and delivered in person or by certified mail to the proper address. All
notices to the Company or the Committee shall be addressed to them at 177
Crossways Park Drive, Woodbury, New York, 11797, Attn: Secretary. All notices to
the Employee shall be addressed to the Employee or such other person or persons
at the Employee's address above specified. Anyone to whom a notice may be given
under this Agreement may designate a new address by notice to that effect.
18. Benefits of Agreement. The Agreement shall inure to the benefit
---------------------
of and be binding upon each successor and assign of the Company. All obligations
imposed upon the Employee and all rights granted to the Company under this
Agreement shall be binding upon the Employee's heirs, legal representatives and
successors.
19. Severability. In the event that any one or more provisions of
------------
this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be constructed as
if such illegal or unenforceable provision or provisions had not been inserted.
-8-
<PAGE>
20. Governing Law. This Agreement will be construed and governed in
-------------
accordance with the laws of the State of Delaware.
21. Disposition of Shares. By accepting this Agreement, the Employee
---------------------
agrees that in the event that he shall dispose (whether by sale, exchange, gift,
or any like transfer) of any shares of Common Stock of the Company (to the
extent such shares are deemed to be purchased pursuant to an incentive stock
option) acquired by him pursuant hereto within two years of the date of grant of
this Option or within one year after the acquisition of such shares pursuant
hereto, he will notify the secretary of the Company no later than 15 days from
the date of such disposition of the date or dates and the number of shares
disposed of by him and the consideration received, if any, and, upon
notification from the Company, promptly forward to the secretary of the Company
any amount requested by the Company for the purpose of satisfying its liability,
if any, to withhold federal, state or local income or earnings tax or any other
applicable tax or assessment (plus interest or penalties thereon, if any, caused
by delay in making such payment) incurred by reason of such disposition.
22. Acknowledgement of Employee. The Employee represents and agrees
---------------------------
that as of the date of grant of this Option, he does not own (within the meaning
of Section 422(b)(6) of the Code) shares possessing more than 10% of the total
combined voting power of all classes of shares of the Company or of any Parent
or Subsidiary.
23. Employment. Nothing contained in this Agreement shall be
----------
construed as (a) a contract of employment between the Employee and the Company
or any Parent or Subsidiary, (b) as a right of the Employee to be continued in
the employ of the Company or any Parent or Subsidiary, or (c) as a limitation of
the right of the Company or any Parent or Subsidiary to discharge the Employee
at any time, with or without cause.
24. Definitions. Unless otherwise defined herein, all capitalized
-----------
terms shall have the same definitions as set forth under the Plan.
25. Incorporation of Terms of Plan. This agreement shall be
------------------------------
interpreted under, and subject to, all of the terms and provisions of the Plan,
which are incorporated herein by reference.
-9-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries and the Employee has hereunto set his hand all as of
the date, month and year first above written.
CAREER HORIZONS, INC.
By:
_______________________________
Name:
Title: President
__________________________________
[Name of Employee]
__________________________________
Social Security Number
ATTEST:
__________________________
Secretary
-10-
<PAGE>
Exhibit 5.1
[LETTERHEAD OF ALSTON & BIRD]
November 8, 1996
AccuStaff Incorporated
6440 Atlantic Boulevard
Jacksonville, Florida 32211
Re: Form S-8 Registration Statement
AccuStaff Incorporated
Ladies and Gentlemen:
We have acted as counsel to AccuStaff Incorporated (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, covering
up to 2,258,500 shares of the Company's Common Stock, $.01 par value per share
(the "Shares"), that may be issued upon the exercise of options granted pursuant
to Career Horizons, Inc. 1990 Terminal Value Stock Option Plan and Career
Horizons 1993 Stock Option and Performance Award Plan (collectively, the
"Plans"), assumed by the Company in connection with the merger with Career
Horizons, Inc. This opinion is rendered pursuant to Item 8 of Form S-8 and Item
601(b)(5) of Regulation S-K. In connection therewith, we have examined such
corporate records, certificates of public officials and other documents and
records as we have considered necessary or proper for the purpose of this
opinion.
This opinion is limited by, and is in accordance with, the January 1, 1992
edition of the Interpretive Standards Applicable to Legal Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion Committee of the
Corporate and Banking Law Section of the State Bar of Georgia.
Based upon the foregoing, it is our opinion that the up to 2,258,500 Shares
covered by the Registration Statement, which may be issued pursuant to the
Plans, will, when issued, be legally issued, fully paid and nonassessable.
<PAGE>
AccuStaff Incorporated
November 8, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD
By: /s/ Jeffrey A. Allred
---------------------
Jeffrey A. Allred
<PAGE>
EXHIBIT 23.1
CONSENT OF COOPERS & LYBRAND L.L.P.
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
AccuStaff Incorporated on Form S-8 of:
. our report dated March 15, 1996, except for the last paragraph of Note 6
and the last paragraph of Note 11, as to which the date is March 27, 1996
and, except for the basis of presentation section of Note 2 and the
resulting effects on the consolidated financial statements and notes
thereto as to which the date is September 16, 1996, on our audits of the
consolidated financial statements of AccuStaff Incorporated and
Subsidiaries as of December 31, 1995 and January 1, 1995 and for each of
the three years in the period ended December 31, 1995, which report is
included in Form 8-K, dated September 16, 1996;
. our report dated August 1, 1995, on our audits of the financial statements
of Matthews Professional Employment Specialists, Inc. as of December
31, 1994 and 1993 and for each of the three years in the period ended
December 31, 1994, which report is included in Form 8-K/A, dated July 2,
1995;
. our report dated August 8, 1995, on our audit of the financial statements
of Bogard Temps, Inc. as of December 31, 1994 and for the year then ended,
which report is included in Form 8-K/A, dated July 2, 1995;
. our report dated August 16, 1995, on our audits of the combined financial
statements of Special Assistants, Inc., Special Counsel, Inc. and Special
Counsel International, Inc. (collectively, "Special Counsel International")
as of December 31, 1994 and 1993 and for each of the two years in the
period ended December 31, 1994, which report is included in Form 8-K/A,
dated July 2, 1995;
. our report dated December 7, 1995, on our audits of the combined financial
statements of the McKinley Group as of September 30, 1995 and 1994 and for
the years then ended, which report is included in Form 8-K, dated June
19, 1996;
. our report dated January 19, 1996, on our audits of the financial
statements of PTA International, Inc. as of December 31, 1995 and 1994 and
for each of the two years in the period ended December 31, 1995, which
report is included in Form 8-K/A, dated January 2, 1996;
. our report dated March 27, 1996, on our audit of the combined financial
statements of Excel Temporary Services as of December 31, 1995 and for the
year then ended; which report is included in Form 8-K/A, dated February 19,
1996;
. our report dated April 12, 1996 on our audit of the financial statements of
HNS Software, Inc. as of December 31, 1995 and for the year then ended,
which report is included in Form 8-K, dated September 16, 1996.
. our report dated June 19, 1996 on our audit of the financial statements of
Openware Technologies, Inc. as of December 31, 1995 and for the year then
ended, which report is included in Form 8-K, dated September 16, 1996;
. our report dated September 12, 1996 on our audit of the financial
statements of DataCorp Business Systems, Inc. as of December 31, 1995 and
for the year then ended, which report is included in Form 8-K, dated
September 16, 1996; and
. our report dated September 13, 1996 on our audit of the financial
statements of Staffware, Inc. as of December 31, 1995 and for the year
ended, which report is included in Form 8-K, dated September 16, 1996.
/s/ COOPERS & LYBRANDS L.L.P.
Jacksonville, Florida
November 12, 1996
<PAGE>
EXHIBIT 23.2
[LETTERHEAD OF McGLADREY & PULLEN, LLP]
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in this Registration Statement of
AccuStaff Incorporated on Form S-8 and related Prospectus of our report dated
November 29, 1995 (relating to the financial statements of Computer
Professionals, Inc.), included in the Current Report on Form 8-K/A of AccuStaff
Incorporated dated October 31, 1995.
/s/ McGladrey & Pullen, LLP
McGladrey & Pullen, LLP
Charlotte, North Carolina
November 7, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF BERTRAM, VALLEZ, KAPLAN & TALBOT, LTD.
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion of our report dated November 28, 1995 (relating
to the Advance/Possis Technical Services, Inc. Financial Statements for the
years ended September 30, 1995 and 1994), included in the Current Report on Form
8-K of AccuStaff Incorporated dated December 13, 1995 in the Registration
Statement and related Prospectus of AccuStaff Incorporated on Form S-8.
/s/ Bertram, Vallez, Kaplan & Talbot, Ltd.
BERTRAM, VALLEZ, KAPLAN & TALBOT, LTD.
Minneapolis, Minnesota
November 8, 1996
<PAGE>
EXHIBIT 23.4
[LETTERHEAD OF STADTLER, ROSENBLUM & SARIS]
CONSENT OF STADTLER, ROSENBLUM & SARIS
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion of our reports dated March 1, 1996 and
December 15, 1995 (relating to the combined financial statement of
Goldfarb-Wasson Associates, Inc. & GW Temporaries, Inc. dba GW Consulting, as of
December 31, 1995 and for the nine months in the period ended December 31, 1995
and March 31, 1995 and 1994 and for each of the two years in the period ended
March 31, 1995), included in the Current Report on Form 8-K of AccuStaff
Incorporated dated January 2, 1996 in the Registration Statement and related
Prospectus of AccuStaff Incorporated on Form S-8.
/s/ Stadtler, Rosemblum & Saris
Stadtler, Rosemblum & Saris
November 7, 1996
<PAGE>
EXHIBIT 23.5
[LETTERHEAD OF NYHAN & MAZZA, P.C.]
Consent of Independent Accountants
We consent to the inclusion of our report dated March 27, 1996 relating to
Additional Technical Support, Inc. and Affiliates for the years ended July 31,
1995 and July 31, 1994, included in the Current Report on Form 8-K of AccuStaff
Incorporated dated February 20, 1996 in the Registration Statement of AccuStaff
Incorporated on Form S-8.
/s/ Nyhan & Mazza, P.C.
Nyhan & Mazza, P.C.
November 6, 1996
<PAGE>
EXHIBIT 23.6
[LETTER HEAD OF DENNIS I. BERNER]
Consent of Independent Accountant
- ---------------------------------
I consent to the incorporation by reference in the registration statement of
Accustaff Incorporated on Form S-8 of my report dated January 26, 1996, on my
audit of the financial statements of Career Enhancement International, Inc. as
of December 31, 1995 and for the year then ended, included in the Current Report
on Form 8-K of Accustaff Incorporated dated September 16, 1996.
/s/ Dennis I. Berner
- ----------------------------------
Winter Park, Florida
November 6, 1996
Member of American and Florida Institutes of Certified Public Accountants
<PAGE>
EXHIBIT 23.7
[LETTER HEAD OF BEERS AND CUTLER PLLC]
CONSENT OF BEERS & CUTLER PLLC
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
AccuStaff incorporated on Form S-8 of our report dated February 20, 1996, on our
audit of the financial statements of Perspective Technology Corporation as of
December 31, 1995 and for the year then ended included in the Current Report on
Form 8-K of AccuStaff Incorporated dated September 16, 1996.
/s/ Beers & Cutler, PLLC
Beers & Cutler, PLLC
Washington, D.C.
November 6, 1996
