<PAGE>
As filed with the Securities and Exchange Commission on March 17, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
WESTERN STAFF SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-1266151
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
301 LENNON LANE
WALNUT CREEK, CALIFORNIA 94598-2453
(Address of principal executive offices) (Zip Code)
------------------
OPTIONS GRANTED TO MR. SAMUELSON AND MR. SHEFFIELD
PURSUANT TO WRITTEN COMPENSATION AGREEMENTS
(Full title of the Plan)
------------------
W. ROBERT STOVER
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
WESTERN STAFF SERVICES, INC.
301 LENNON LANE
WALNUT CREEK, CALIFORNIA 94598-2453
(Name and address of agent for service)
------------
(Telephone number, including area code, of agent for service)
(510) 930-5300
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ---------- --------- ----- ---
<S> <C> <C> <C> <C>
Options to purchase Common Stock 3,000 N/A N/A N/A
(Options granted under written
compensation agreements)
Common Stock, $.01 par value 3,000 shares $14.25 $42,750 $13
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable pursuant to the Written Compensation
Agreements by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the Registrant's receipt of
consideration which results in an increase in the number of the outstanding
shares of the Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the exercise price of
the options.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Western Staff Services, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
November 1, 1997, filed with the SEC on January 30, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
January 24, 1998 filed with the SEC on March 10, 1998; and
(c) The Registrant's Registration Statement No. 00-24990 on Form 8-A filed
with the SEC on March 18, 1996 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "1934 Act") which
describes the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold
or which deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein
or in any subsequently filed document which also is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporation's Board of Directors to grant,
indemnification to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the 1933 Act.
The Registrant's By-Laws provide for mandatory indemnification of its
directors and officers
II-1
<PAGE>
to the maximum extent permitted by the Delaware General Corporation Law. The
Registrant has entered into Indemnification Agreements with its officers,
directors and key employees. The Indemnification Agreements provide such
directors, officers and key employees with further indemnification to the
maximum extent permitted by the Delaware General Corporation Law. The
Registrant's Certificate of Incorporation also provides that, pursuant to
Delaware law, its directors shall not be liable for monetary damages to the
Registrant and its stockholders for a breach of their fiduciary duties as
directors, except for liability for any breach of a director's duty of loyalty
to the Registrant or its stockholders, acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law under Section
174 of the General Corporation Law of Delaware, or for any transaction from
which a director derives any improper personal benefit.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- -------------- -------
<S> <C>
4 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 00-24990 on
Form 8-A which is incorporated herein by reference pursuant
to Item 3(c).
5 Opinion and consent of Morrison & Foerster LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Morrison & Foerster LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Written Compensation Agreement between Registrant and Jack
D. Samuelson dated as of November 1, 1996.
99.2 Written Compensation Agreement between Registrant and
Gilbert L. Sheffield dated as of November 1, 1996.
99.3 Notice of Grant of Non-Employee Director Stock Option--Mr.
Samuelson.
99.4 Notice of Grant of Non-Employee Director Stock Option--Mr.
Sheffield.
99.5 Non-Employee Director Stock Option Agreement.
</TABLE>
Item 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: (1)
to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement (i) to include any
prospectus required by Section 10(a)(3) of the 1933 Act, (ii) to reflect in
the prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement and (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; PROVIDED, however, that
clauses (1)(i) and (1)(ii) shall not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 Act each such post-effective amendment shall
II-2
<PAGE>
be deemed to be a new registration statement relating to the securities
offered therein and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and (3) to remove from
registration by means of a post-effective amendment any of the securities
being registered which remain unsold upon the expiration of the options
granted to Messrs. Samuelson and Sheffield pursuant to their written
compensation agreements with the Registrant.
B. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the 1933 Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the 1934 Act that is incorporated by reference into this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers, or controlling
persons of the Registrant pursuant to the indemnification provisions
summarized in Item 6 above or otherwise, the Registrant has been advised
that, in the opinion of the SEC, such indemnification is against public
policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8, and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Walnut Creek, State of
California, on this 17th day of March, 1998.
WESTERN STAFF SERVICES, INC.
By: /s/ W. Robert Stover
--------------------------------------
W. Robert Stover
Chairman of the Board of Directors and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Western Staff Services,
Inc., a Delaware corporation, do hereby constitute and appoint Michael K.
Phippen and Paul A. Norberg, and each of them, the lawful attorneys-in-fact and
agents with full power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and agents, and any one of
them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ W. Robert Stover Chairman of the Board of Directors March 17, 1998
- ------------------------ and Chief Executive Officer ---------
W. Robert Stover (Principal Executive Officer)
II-4
<PAGE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Michael K. Phippen President, Chief Operating March 17, 1998
- ------------------------ Officer and Director ---------
Michael K. Phippen
/s/ Paul A. Norberg Executive Vice President, March 17, 1998
- ------------------------ Chief Financial Officer and ---------
Paul A. Norberg Director (Principal Financial
Officer)
/s/ Dirk A. Sodestrom Vice President and Controller March 17, 1998
- ------------------------ (Principal Accounting Officer) ---------
Dirk A. Sodestrom
/s/ Gilbert L. Sheffield Director March 17, 1998
- ------------------------ ---------
Gilbert L. Sheffield
/s/ Jack D. Samuelson Director March 17, 1998
- ------------------------ ---------
Jack D. Samuelson
</TABLE>
II-5
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
WESTERN STAFF SERVICES, INC.
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
<S> <C>
4 Instruments Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 00-24990 on Form 8-A which is
incorporated herein by reference pursuant to Item 3(c).
5 Opinion and consent of Morrison & Foerster LLP.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Morrison & Foerster LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Written Compensation Agreement between Registrant and Jack D.
Samuelson dated as of November 1, 1996.
99.2 Written Compensation Agreement between Registrant and Gilbert L.
Sheffield dated as of November 1, 1996.
99.3 Notice of Grant of Non-Employee Director Stock Option--Mr. Samuelson.
99.4 Notice of Grant of Non-Employee Director Stock Option--Mr. Sheffield.
99.5 Non-Employee Director Stock Option Agreement.
</TABLE>
<PAGE>
EXHIBIT 5
Opinion and consent of Morrison & Foerster LLP
March 17, 1998
Western Staff Services, Inc.
301 Lennon Lane
Walnut Creek, California 94598-2453
Re: Registration Statement for Offering of
an aggregate of 3,000 Shares of Common Stock
--------------------------------------------
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of 3,000 shares of
Common Stock issuable pursuant to certain stock options granted to Messrs.
Samuelson and Sheffield on November 1, 1996. We advise you that, in our
opinion, when such shares have been issued and sold pursuant to the
provisions of the stock option agreements evidencing those grants and in
accordance with the Registration Statement, such shares will be duly
authorized, validly issued, fully paid and non-assessable shares of the
Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ MORRISON & FOERSTER LLP
MORRISON & FOERSTER LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 31, 1997 appearing on page
F-1 of the Western Staff Services, Inc. 1997 Annual Report on Form 10-K for
the year ended November 1, 1997.
/s/ Price Waterhouse LLP
- -------------------------
PRICE WATERHOUSE LLP
San Francisco, California
March 13, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF MORRISON & FOERSTER LLP IS CONTAINED IN EXHIBIT 5
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
REFERENCE IS MADE TO PAGE II-4 OF THIS REGISTRATION STATEMENT
<PAGE>
EXHIBIT 99.1
WRITTEN COMPENSATION AGREEMENT BETWEEN REGISTRANT AND JACK D. SAMUELSON
DATED AS OF NOVEMBER 1, 1996
<PAGE>
COMPENSATION AGREEMENT
Agreement dated as of the lst day of November, 1996 by and between Jack
D. Samuelson ("Director") and Western Staff Services, Inc., a Delaware
corporation ("Company")
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, The Director is a non-employee member of the Company's Board of
Directors (the "Board").
WHEREAS, as an incentive for the Director to continue to serve on the
Board and as compensation for such Services, Company has previously granted
Director an option to purchase 1,500 shares of the Company's Common Stock
(the "Option") upon the terms and conditions set forth in the option
agreement dated November 1, 1996 (the "Option Agreement") and attached hereto
as Exhibit A.
WHEREAS, Company and Director now wish to memorialize, in writing,
certain agreements and understandings existing between them at the time the
Option Agreement was executed.
NOW, THEREFORE, in consideration of the above premises, the parties
hereto agree as follows:
1. Company and Director acknowledge and agree that the Option was
granted as compensation for services and not for any capital-raising purposes
or in connection with any capital-raising activities.
2. The Option is not assignable or transferable except in connection
with the Director's death.
3. This agreement is intended solely to memorialize the agreement and
understanding existing between Director and Company at the time the Option
was granted and the Option Agreement was executed. Nothing herein or in the
Option Agreement is intended to impair the right of the Company and its
shareholders to remove the Director from the Board at any time in accordance
with applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first above written.
DIRECTOR: WESTERN STAFF SERVICES, INC.
/s/ Jack D. Samuelson By: /s/ W. Robert Stover
- ---------------------------------- ----------------------------------
Jack D. Samuelson W. Robert Stover, Chairman of the
Board and Chief Executive Officer
<PAGE>
EXHIBIT A
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
<PAGE>
EXHIBIT 99.2
WRITTEN COMPENSATION AGREEMENT BETWEEN REGISTRANT AND GILBERT L. SHEFFIELD
DATED AS OF NOVEMBER 1, 1996
<PAGE>
COMPENSATION AGREEMENT
Agreement dated as of the lst day of November, 1996 by and between
Gilbert L. Sheffield ("Director") and Western Staff Services, Inc., a
Delaware corporation ("Company").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, The Director is a non-employee member of the Company's Board of
Directors (the "Board").
WHEREAS, as an incentive for the Director to continue to serve on the
Board and as compensation for such Services, Company has previously granted
Director an option to purchase 1,500 shares of the Company's Common Stock
(the "Option") upon the terms and conditions set forth in the option
agreement dated November 1, 1996 (the "Option Agreement") and attached hereto
as Exhibit A.
WHEREAS, Company and Director now wish to memorialize, in writing,
certain agreements and understandings existing between them at the time the
Option Agreement was executed.
NOW, THEREFORE, in consideration of the above premises, the parties
hereto agree as follows:
1. Company and Director acknowledge and agree that the Option was
granted as compensation for services and not for any capital-raising purposes
or in connection with any capital-raising activities.
2. The Option is not assignable or transferable except in connection
with the Director's death.
3. This agreement is intended solely to memorialize the agreement and
understanding existing between Director and Company at the time the Option
was granted and the Option Agreement was executed. Nothing herein or in the
Option Agreement is intended to impair the right of the Company and its
shareholders to remove the Director from the Board at any time in accordance
with applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first above written.
DIRECTOR: WESTERN STAFF SERVICES, INC.
/s/ Gilbert L. Sheffield By: /s/ W. Robert Stover
- ---------------------------------- ----------------------------------
Gilbert L. Sheffield W. Robert Stover, Chairman of the
Board and Chief Executive Officer
<PAGE>
EXHIBIT A
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
<PAGE>
EXHIBIT 99.3
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR STOCK OPTION - MR. SAMUELSON
<PAGE>
WESTERN STAFF SERVICES, INC.
NOTICE OF GRANT OF
NON-EMPLOYEE DIRECTOR STOCK OPTION
Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Common Stock of Western Staff Services, Inc. (the
"Corporation"):
OPTIONEE: Jack D. Samuelson
GRANT DATE: November 1, 1996
EXERCISE PRICE: $ 14.25 per share
NUMBER OF OPTION SHARES: 1,500 shares
EXPIRATION DATE: October 31, 2006
TYPE OF OPTION: Non-Statutory Stock Option
EXERCISE SCHEDULE: The option shall become fully exercisable for all the
Option Shares upon Optionee's completion of one (1) year of service as a
member of the Corporation's Board of Directors (the "Board") measured from
the Grant Date. In no event shall the Option become exercisable for any
additional Option Shares after Optionee's cessation of Board service.
Optionee understands and agrees that the Option is granted subject to
and in accordance with the terms of the Option as set forth in the
Non-Employee Director Stock Option Agreement (the "Option Agreement")
attached hereto as Exhibit A, and Optionee agrees to be bound by all those
terms. Optionee hereby acknowledges receipt of the prospectus for the Option
in the form attached hereto a Exhibit B.
DEFINITIONS. All capitalized terms in this Notice shall have the meaning
assigned to them in this Notice or in the attached Option Agreement.
<PAGE>
NO IMPAIRMENT OF RIGHTS. Nothing in this Notice or the attached Option
Agreement shall interfere with or otherwise restrict in any way the rights of
the Corporation and the Corporation's stockholders to remove Optionee from
the Board at any time in accordance with the provisions of applicable law.
DATED: NOVEMBER 1, 1996
WESTERN STAFF SERVICES, INC.
/s/ W. Robert Stover
-----------------------------------------
W. Robert Stover
Title: Chief Executive Officer
/s/ Jack D. Samuelson
-----------------------------------------
OPTIONEE Jack D. Samuelson
Address: 5000 Edenhurst Avenue
-----------------------------------------
Los Angeles, CA 90039
-----------------------------------------
ATTACHMENTS
EXHIBIT A - NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
EXHIBIT B - OPTION PROSPECTUS
2.
<PAGE>
EXHIBIT 99.4
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR STOCK OPTION - MR. SHEFFIELD
<PAGE>
WESTERN STAFF SERVICES, INC.
NOTICE OF GRANT OF
NON-EMPLOYEE DIRECTOR STOCK OPTION
Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Common Stock of Western Staff Services, Inc. (the
"Corporation"):
OPTIONEE: Gilbert L. Sheffield
GRANT DATE: November 1, 1996
EXERCISE PRICE: $ 14.25 per share
NUMBER OF OPTION SHARES: 1,500 shares
EXPIRATION DATE: October 31, 2006
TYPE OF OPTION: Non-Statutory Stock Option
EXERCISE SCHEDULE: The option shall become fully exercisable for all the
Option Shares upon Optionee's completion of one (1) year of service as a
member of the Corporation's Board of Directors (the "Board") measured from
the Grant Date. In no event shall the Option become exercisable for any
additional Option Shares after Optionee's cessation of Board service.
Optionee understands and agrees that the Option is granted subject to
and in accordance with the terms of the Option as set forth in the
Non-Employee Director Stock Option Agreement (the "Option Agreement")
attached hereto as Exhibit A, and Optionee agrees to be bound by all those
terms. Optionee hereby acknowledges receipt of the prospectus for the Option
in the form attached hereto a Exhibit B.
DEFINITIONS. All capitalized terms in this Notice shall have the meaning
assigned to them in this Notice or in the attached Option Agreement.
<PAGE>
NO IMPAIRMENT OF RIGHTS. Nothing in this Notice or the attached Option
Agreement shall interfere with or otherwise restrict in any way the rights of
the Corporation and the Corporation's stockholders to remove Optionee from
the Board at any time in accordance with the provisions of applicable law.
DATED: NOVEMBER 1, 1996
WESTERN STAFF SERVICES, INC.
/s/ W. Robert Stover
-----------------------------------------
W. Robert Stover
Title: Chief Executive Officer
/s/ Gilbert L. Sheffield
-----------------------------------------
OPTIONEE Gilbert L. Sheffield
Address: 3718 Rose Court
-----------------------------------------
Lafayette, CA 94549
-----------------------------------------
ATTACHMENTS
EXHIBIT A - NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
EXHIBIT B - OPTION PROSPECTUS
2.
<PAGE>
EXHIBIT 99.5
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
<PAGE>
EXHIBIT A
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
<PAGE>
WESTERN STAFF SERVICES, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
RECITALS
A. The Corporation is granting an option under this Agreement to
Optionee in recognition of the special services such individual has provided
the Corporation as a non-employee Board member and as an incentive for such
individual to continue to serve as a Board member.
B. The granted option is intended to be a non-statutory option which
does NOT meet the requirements of Section 422 of the Internal Revenue Code.
C. All capitalized terms in this Agreement shall have the meaning
assigned to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Optionee, as
of the Grant Date, a Non-Statutory Option to purchase up to the number of
Option Shares specified in the Grant Notice. The Option Shares shall be
purchasable from time to time during the option term specified in Paragraph 2
at the Exercise Price.
2. OPTION TERM. This option shall have a term of ten (10) years
measured from the Grant Date and shall accordingly expire at the close of
business on the Expiration Date, unless sooner terminated in accordance with
Paragraph 5, 6 or 7.
3. LIMITED TRANSFERABILITY. During the lifetime of the Optionee,
the option shall be exercisable only by the Optionee and shall not be
assignable or transferable other than by will or by the laws of descent and
distribution following the Optionee's death. However, a Non-Statutory Option
may be assigned in whole or in part during the Optionee's lifetime in
accordance with the terms of a Qualified Domestic Relations Order. The
assigned portion may only be exercised by the person or persons who acquire a
proprietary interest in the option pursuant to such Qualified Domestic
Relations Order. The terms applicable to the assigned portion shall be the
same as those in effect for the option immediately prior to such assignment
and shall be set forth in such documents issued to the assignee as the Plan
Administrator may deem appropriate.
<PAGE>
4. EXERCISABILITY. This option shall become exercisable for the
Option Shares in accordance with the Exercise Schedule set forth in the Grant
Notice. Once the option becomes exercisable for the Option Shares, the option
shall remain exercisable for those Option Shares until the Expiration Date or
the sooner termination of the option term under Paragraph 5, 6 or 7.
5. CESSATION OF BOARD SERVICE. Should Optionee's service as a Board
member cease while this option remains outstanding, then the option term
specified in Paragraph 2 shall terminate (and this option shall cease to be
outstanding) prior to the Expiration Date in accordance with the following
provisions:
(i) Should Optionee cease to serve as a Board member for any
reason (other than death or Permanent Disability) while holding this
option, then the period for exercising this option shall be reduced to a
twelve (12)-month period (commencing with the date of such cessation of
Board service), but in no event shall this option be exercisable at any
time after the Expiration Date. During such limited period of
exercisability, this option may not be exercised in the aggregate for
more than the number of Option Shares (if any) for which this option is
exercisable on the date Optionee ceases service as a Board member. Upon
the EARLIER of (A) the expiration of such twelve (12)-month period or
(B) the specified Expiration Date, the option shall terminate and cease
to be exercisable with respect to any exercisable Option Shares for
which the option has not been exercised.
(ii) Should Optionee die during the twelve (12)-month period
following his or her cessation of Board service, then the personal
representative of Optionee's estate or the person or persons to whom the
option is transferred pursuant to Optionee's will or in accordance with
the laws of descent and distribution shall have the right to exercise
this option for any or all of the Option Shares for which this option is
exercisable at the time of Optionee's cessation of Board service (less
any Option Shares purchased by Optionee after such cessation of Board
service but prior to death). Such right of exercise shall terminate, and
this option shall accordingly cease to be exercisable for those vested
Option Shares, upon the EARLIER of (i) the expiration of the twelve
(12)-month period measured from the date of Optionee's cessation of
Board service or (ii) the specified Expiration Date of the option term.
(iii) Should Optionee cease service as a Board member by
reason of death or Permanent Disability, then this option shall
immediately become exercisable for all the Option Shares at the time
subject to this option so that Optionee (or the personal representative
of Optionee's
2.
<PAGE>
estate or the person or persons to whom the option is transferred upon
Optionee's death) shall have the right to exercise this option for any or
all of those Option Shares as fully-vested shares of Common Stock at any
time prior to the EARLIER of (A) the expiration of the twelve (12)-month
period measured from the date of Optionee's death or Permanent Disability
or (B) the specified Expiration Date.
(iv) Upon Optionee's cessation of Board service for any
reason other than death or Permanent Disability, this option shall
immediately terminate and cease to be outstanding with respect to any
and all Option Shares for which this option is not otherwise at that
time exercisable in accordance with the normal Exercise Schedule or the
special acceleration provisions of Paragraph 6 or 7 below.
6. CORPORATE TRANSACTION.
(a) In the event of a Corporate Transaction, this option, to
the extent outstanding but not otherwise fully exercisable, shall
automatically accelerate so that this option shall, immediately prior to the
effective date of such Corporate Transaction, become exercisable for all the
Option Shares at the time subject to the option and may be exercised for any
or all of those Option Shares as fully-vested shares of Common Stock.
Immediately following the Corporate Transaction, this option shall terminate
and cease to be exercisable except to the extent assumed by the successor
corporation (or parent thereof) in connection with such Corporate Transaction.
(b) If this option is assumed in connection with a Corporate
Transaction, then this option shall be appropriately adjusted, immediately
after such Corporate Transaction, to apply to the number and class of
securities which would have been issuable to Optionee in consummation of such
Corporate Transaction had the option been exercised immediately prior to such
Corporate Transaction, and appropriate adjustments shall also be made to the
Exercise Price, PROVIDED the aggregate Exercise Price shall remain the same.
7. CHANGE IN CONTROL/HOSTILE TAKE-OVER.
(a) In the event of a Change in Control, this option, to the
extent outstanding but not otherwise fully exercisable, shall automatically
accelerate so that this option shall, immediately prior to the effective date
of such Change in Control, become exercisable for all the Option Shares at
the time subject to the option and may be exercised for any or all of those
Option Shares as fully-vested shares of Common Stock. This option shall
remain exercisable for such fully-vested Option Shares until the earliest to
occur of (i)
3.
<PAGE>
the Expiration Date, (ii) the sooner termination of this option in accordance
with Paragraph 5 or 6 or (iii) the surrender of the option in connection with
a Hostile Take-Over.
(b) Optionee shall have the unconditional right (exercisable
during the thirty (30)-day period immediately following the consummation of a
Hostile Take-Over) to surrender this option to the Corporation in exchange
for a cash distribution from the Corporation in an amount equal to the excess
of (i) the Take-Over Price of the Option Shares at the time subject to the
surrendered option (whether or not the option is otherwise at the time
exercisable for those Option Shares) over (ii) the aggregate Exercise Price
payable for such shares. This Paragraph 7(b) limited stock appreciation right
shall in all events terminate upon the expiration or sooner termination of
the option term and may not be assigned or transferred by Optionee.
(c) To exercise the Paragraph 7(b) limited stock appreciation
right, Optionee must, during the applicable thirty (30)-day exercise period,
provide the Corporation with written notice of the option surrender in which
there is specified the number of Option Shares as to which the Option is
being surrendered. Such notice must be accompanied by the return of
Optionee's copy of this Agreement, together with any written amendments to
such Agreement. The cash distribution shall be paid to Optionee within five
(5) days following such delivery date. Any such exercise of this limited
stock appreciation right in accordance with the provisions of this Paragraph
7 is hereby approved in advance by the Board, and no further approval of the
Board shall be required in connection with the actual surrender of the option
and the payment of the cash distribution. Upon receipt of such cash
distribution, this option shall be cancelled with respect to the Option Shares
subject to the surrendered option (or the surrendered portion) and Optionee
shall cease to have any further right to acquire those Option Shares under
this Agreement. The option shall, however, remain outstanding for the balance
of the Option Shares (if any) in accordance with the terms of this Agreement,
and the Corporation shall accordingly issue a new stock option agreement
(substantially in the same form as this Agreement) for those remaining Option
Shares.
8. ADJUSTMENT IN OPTION SHARES. Should any change be made to the
Common Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the number and/or
class of securities subject to this option and (ii) the Exercise Price in
order to reflect such change and thereby preclude a dilution or enlargement
of benefits hereunder.
9. STOCKHOLDER RIGHTS. The holder of this option shall not have
any stockholder rights with respect to the Option Shares until such person
shall have exercised the option, paid the Exercise Price and become a holder
of record of the purchased shares.
4.
<PAGE>
10. MANNER OF EXERCISING OPTION.
(a) In order to exercise this option with respect to all or
any part of the Option Shares for which this option is at the time
exercisable, Optionee (or any other person or persons exercising the option)
must take the following actions:
(i) Execute and deliver to the Corporation a Notice of
Exercise for the Option Shares for which the option is exercised.
(ii) Pay the aggregate Exercise Price for the purchased
shares in one or more of the following forms:
(A) cash or check made payable to the Corporation,
(B) shares of Common Stock held by Optionee (or any
other person or persons exercising the option) for the requisite
period necessary to avoid a charge to the Corporation's earnings for
financial reporting purposes and valued at Fair Market Value on the
Exercise Date, or
(C) through a special sale and remittance procedure
pursuant to which Optionee (or any other person or persons
exercising the option) shall concurrently provide irrevocable
written instructions (I) to a Corporation-designated brokerage firm
to effect the immediate sale of the purchased shares and remit to
the Corporation, out of the sale proceeds available on the
settlement date, sufficient funds to cover the aggregate Exercise
Price payable for the purchased shares plus all applicable Federal,
state and local income taxes required to be withheld by the
Corporation by reason of such exercise and (II) to the Corporation
to deliver the certificates for the purchased shares directly to
such brokerage firm in order to complete the sale.
Except to the extent the sale and remittance procedure is
utilized in connection with the option exercise, payment of the
Exercise Price must accompany the Notice of Exercise delivered to
the Corporation in connection with the option exercise.
(iii) Furnish to the Corporation appropriate
documentation that the person or persons exercising the option (if other
than Optionee) have the right to exercise this option.
5.
<PAGE>
(iv) Make appropriate arrangements with the Corporation
for the satisfaction of all Federal, state and local income tax
withholding requirements applicable to the option exercise.
(b) As soon after the Exercise Date as practical, the
Corporation shall issue to or on behalf of Optionee (or any other person or
persons exercising this option) a certificate for the purchased Option
Shares, with the appropriate legends affixed thereto.
(c) In no event may this option be exercised for any fractional
shares.
11. NO IMPAIRMENT OF RIGHTS. This Agreement shall not in any way
affect the right of the Corporation to adjust, reclassify, reorganize or
otherwise make changes in its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets. Nor shall this Agreement in any way be construed or
interpreted so as to affect adversely or otherwise impair the right of the
Corporation or the stockholders to remove Optionee from the Board at any time
in accordance with the provisions of applicable law.
12. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) The exercise of this option and the issuance of the
Option Shares upon such exercise shall be subject to compliance by the
Corporation and Optionee with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange (or the
Nasdaq National Market, if applicable) on which the Common Stock may be
listed for trading at the time of such exercise and issuance.
(b) The inability of the Corporation to obtain approval from
any regulatory body having authority deemed by the Corporation to be
necessary to the lawful issuance and sale of any Common Stock pursuant to
this option shall relieve the Corporation of any liability with respect to
the non-issuance or sale of the Common Stock as to which such approval shall
not have been obtained. The Corporation, however, shall use its best efforts
to obtain all such approvals.
13. SUCCESSORS AND ASSIGNS. Except to the extent otherwise provided
in Paragraph 3 or 6, the provisions of this Agreement shall inure to the
benefit of, and be binding upon, the Corporation and its successors and
assigns and Optionee, Optionee's assigns and the legal representatives, heirs
and legatees of Optionee's estate.
14. NOTICES. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and
addressed to the
6.
<PAGE>
Corporation at its principal corporate offices. Any notice required to be
given or delivered to Optionee shall be in writing and addressed to Optionee
at the address indicated below Optionee's signature line on the Grant Notice.
All notices shall be deemed effective upon personal delivery or upon deposit
in the U.S. mail, postage prepaid and properly addressed to the party to be
notified.
15. GOVERNING LAW. The interpretation, performance and enforcement
of this Agreement shall be governed by the laws of the State of California
without resort to that State's conflict-of-laws rules.
7.
<PAGE>
EXHIBIT I
NOTICE OF EXERCISE
I hereby notify Western Staff Services, Inc. (the "Corporation") that I
elect to purchase _________ shares of the Corporation's Common Stock (the
"Purchased Shares") at the option exercise price of $_______ per share (the
"Exercise Price") pursuant to that certain option (the "Option") granted to
me by the Corporation on November 3, 1996.
Concurrently with the delivery of this Exercise Notice to the
Corporation, I shall hereby pay to the Corporation the Exercise Price for the
Purchased Shares in accordance with the provisions of my agreement with the
Corporation (or other documents) evidencing the Option and shall deliver
whatever additional documents may be required by such agreement as a
condition for exercise. Alternatively, I may utilize the special broker-
dealer sale and remittance procedure specified in my agreement to effect
payment of the Exercise Price for any Purchased Shares.
___________________________, 199__
Date
---------------------------------------
Optionee
Address:
-------------------------------
---------------------------------------
Print name in exact manner
it is to appear on the
stock certificate: ---------------------------------------
Address to which certificate
is to be sent, if different
from address above: ---------------------------------------
---------------------------------------
Social Security Number: ---------------------------------------
<PAGE>
APPENDIX
The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Non-Employee Director Stock Option
Agreement.
B. BOARD shall mean the Corporation's Board of Directors.
C. CHANGE IN CONTROL shall mean a change in ownership or control of the
Corporation effected through either of the following transactions:
(i) the acquisition, directly or indirectly, by any person or
related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Corporation) of beneficial ownership (within the
meaning of Rule 13d-3 of the 1934 Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities pursuant to a tender or exchange
offer made directly to the Corporation's stockholders which the Board
does not recommend such stockholders to accept, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority of the
Board members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (a) have
been Board members continuously since the beginning of such period or
(b) have been elected or nominated for election as Board members during
such period by at least a majority of the Board members described in
clause (a) who were still in office at the time the Board approved such
election or nomination.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
E. COMMON STOCK shall mean the Corporation's common stock.
F. CORPORATE TRANSACTION shall mean either of the following stockholder-
approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
A-1.
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Corporation's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to
such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the Corporation's assets in complete liquidation or
dissolution of the Corporation.
G. CORPORATION shall mean Western Staff Services, Inc., a Delaware
corporation.
H. EXERCISE DATE shall mean the date on which the option shall have
been exercised in accordance with Paragraph 10 of the Agreement.
I. EXERCISE PRICE shall mean the exercise price per share as specified in
the Grant Notice.
J. EXERCISE SCHEDULE shall mean the schedule specified in the Grant
Notice, pursuant to which the option is to become exercisable for the Option
Shares upon Optionee's completion of one (1) year of Board service measured
from the Grant Date, subject to acceleration in accordance with the
provisions of the Agreement.
K. EXPIRATION DATE shall mean the date on which the option expires as
specified in the Grant Notice.
L. FAIR MARKET VALUE per share of Common Stock on any relevant date shall
be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question, as such price
is reported by the National Association of Securities Dealers on the
Nasdaq National Market or any successor system. If there is no closing
selling price quoted for the Common Stock on the date in question, then
the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question on the Stock Exchange
serving as the primary market for the Common Stock, as such price is
officially quoted in the composite tape of transactions on such
exchange. If there is no closing selling price quoted for the Common
Stock on the date in
A-2.
<PAGE>
question, then the Fair Market Value shall be the closing selling price on
the last preceding date for which such quotation exists.
M. GRANT DATE shall mean the date of grant of the option as specified
in the Grant Notice.
N. GRANT NOTICE shall mean the Notice of Grant of Non-Employee
Director Stock Option accompanying the Agreement, pursuant to which Optionee
has been informed of the basic terms of the option evidenced hereby.
0. HOSTILE TAKE-OVER shall mean a change in ownership of the
Corporation effected through the acquisition, directly or indirectly, by any
person or related group of persons (other than the Corporation or a person
that directly or indirectly controls, is controlled by, or is under common
control with, the Corporation) of beneficial ownership (within the meaning of
Rule 13d-3 of the 1934 Act) of securities possessing more than fifty percent
(50%) of the total combined voting power of the Corporation's outstanding
securities pursuant to a tender or exchange offer made directly to the
Corporation's stockholders which the Board does not recommend such
stockholders to accept.
P. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
Q. NON-STATUTORY OPTION shall mean an option not intended to satisfy
the requirements of Code Section 422.
R. NOTICE OF EXERCISE shall mean the written notice of the option
exercise on the form provided by the Corporation for such purpose.
S. OPTION SHARES shall mean the number of shares of Common Stock
subject to the option as specified in the Grant Notice.
T. OPTIONEE shall mean the person to whom the option is granted as
specified in the Grant Notice.
U. PERMANENT DISABILITY shall mean the inability of Optionee to
perform his or her usual duties as a Board member by reason of any medically
determinable physical or mental impairment expected to result in death or to
be of continuous duration of twelve (12) months or more.
V. STOCK EXCHANGE shall mean the American Stock Exchange or the New
York Stock Exchange.
A-3.
