<PAGE> 1
As filed with the Securities and Exchange Commission on March 18, 1997.
Registration No. 333-________
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-------------------------
BUSINESS RESOURCE GROUP
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
California 77-0150337
(State of Incorporation) (I.R.S. Employer Identification No.)
</TABLE>
2150 North First Street, Suite 101
San Jose, California 95131
(Address of principal executive offices)
-------------------------
1995 STOCK OPTION PLAN
1995 DIRECTORS' STOCK OPTION PLAN
(Full title of the Plan)
-------------------------
Charles J. Winter
President and Chief Executive Officer
Business Resource Group
2150 North First Street, Suite 101
San Jose, California 95131
(408) 441-3700
(Name, address and telephone number of agent for service)
-------------------------
Copies to:
ELIAS J. BLAWIE, ESQ.
DAVID M. JARGIELLO, ESQ.
Venture Law Group, A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(415) 854-4488
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 500,000 Shares(1) $5.375 $2,687,500.00 $814.39
Common Stock,
$0.01 par value 75,000 Shares(3) $5.375 $ 403,125.00 $122.16
</TABLE>
(1) Excludes all shares previously registered under Registrant's 1995 Stock
Option Plan on Form S-8 (Registration No. 333-02388).
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act") solely for the purpose of calculating the
total registration fee. Computation based on the average of the high and
low prices of the Common Stock as reported in the Nasdaq National Market
on March 13, 1997 because the price at which the options to be granted in
the future may be exercised is not currently determinable.
(3) Excludes all shares previously registered under Registrant's 1995
Directors' Stock Option Plan on Form S-8 (Registration No. 33-95144).
(4) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the total registration fee. Computation
based on the average of the high and low prices of the Common Stock as
reported in the Nasdaq National Market on March 13, 1997 because
the price at which the options to be granted in the future may be
exercised is not currently determinable.
<PAGE> 2
The contents of the Registrant's Form S-8 Registration Statements
(Registration No. 333-02388 and Registration No. 33-95144) filed March 15, 1996
and August 1, 1995, respectively, are hereby incorporated by reference.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Document
------- --------
<S> <C>
4.1 1995 Stock Option Plan, as amended to date, and forms of
option agreements for use with plan.
4.2 1995 Directors' Stock Option Plan, as amended to date,
and forms of option agreements for use with plan.
5.1 Opinion of Counsel as to legality of securities being registered.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors (see page 5).
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page 4).
</TABLE>
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<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant, Business Resource Group, a corporation organized and
existing under the laws of the State of California, 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 San Jose,
State of California, on March 18, 1997.
BUSINESS RESOURCE GROUP
By: /s/ P. Steven Melman
-----------------------------------
P. Steven Melman, Vice President of
Finance and Chief Financial Officer
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<PAGE> 4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles J. Winter and P. Steven Melman,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------------------------- --------------------------------------- ---------------
<S> <C> <C>
/s/ Charles J. Winter President, Chief Executive Officer and March 18, 1997
- ------------------------------ Director (Principal Executive Officer)
(Charles J. Winter)
/s/ P. Steven Melman Vice President of Finance and Chief March 18, 1997
- ------------------------------- Financial Officer (Principal Financial
(P. Steven Melman) and Accounting Officer)
/s/ Jack A. Bradley Director March 18, 1997
- --------------------------------
(Jack A. Bradley)
/s/ Brian D. McNay Director March 18, 1997
- --------------------------------
(Brian D. McNay)
/s/ Jeffrey Tuttle Director March 18, 1997
- --------------------------------
(Jeffrey Tuttle)
/s/ John W. Peth Director March 18, 1997
- --------------------------------
(John W. Peth)
/s/ Harry S. Robbins Director March 18, 1997
- ----------------------------
(Harry S. Robbins)
</TABLE>
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<PAGE> 5
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Business Resource Group on Form S-8 and in the Registration
Statements Nos. 333-02388 and 33-95144 of Business Resource Group on Form S-8
of our reports dated December 10, 1996, appearing in the Annual Report on
Form 10-K of Business Resource Group for the year ended October 31, 1996.
DELOITTE & TOUCHE LLP
San Jose, California
March 14, 1997
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<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
------
<S> <C>
4.1 1995 Stock Option Plan, as amended to date, and forms of option agreements for
use with plan.
4.2 1995 Directors' Stock Option Plan, as amended to date, and forms of option
agreements for use with plan.
5.1 Opinion of Counsel as to legality of securities being registered.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors (see page 5).
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page 4).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
As amended on December 10, 1996
BUSINESS RESOURCE GROUP
1995 STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Stock Option Plan
are to attract and retain the best available personnel for positions of
substantial responsibility, to give Employees and Consultants of the Company a
greater personal stake in the success of the Company's business, to provide
additional incentive to the Employees and Consultants of the Company to
continue and advance in their employment and service to the Company and to
promote the success of the Company's business.
Options granted hereunder may be either Incentive Stock
Options or Nonstatutory Stock Options, at the discretion of the Board and as
reflected in the terms of the written option agreement.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" shall mean the Board or any of its
Committees appointed pursuant to Section 4 of the Plan.
(b) "Applicable Laws" shall have the meaning set forth in
Section 4(a) below.
(c) "Board" shall mean the Board of Directors of the
Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) "Committee" shall mean the Committee appointed by the
Board of Directors in accordance with Section 4(a) of the Plan, if one is
appointed.
(f) "Common Stock" shall mean the Common Stock of the
Company.
(g) "Company" shall mean Business Resource Group, a
California corporation.
(h) "Consultant" shall mean any person who is engaged by the
Company or any Parent or Subsidiary to render consulting services and is
compensated for such consulting services, and any director of the Company
whether compensated for such services or not; provided that if and in the event
the Company registers any class of any equity security pursuant to Section 12
of the Exchange Act, the term Consultant shall thereafter not include directors
who are not compensated for their services or are paid only a director's fee by
the Company.
(i) "Continuous Status as an Employee or Consultant" shall
mean the absence of any interruption or termination of service as an Employee
or Consultant. Continuous Status as an Employee or Consultant shall not be
considered interrupted in the case of sick leave, military leave, or any other
leave of absence approved by the Administrator; provided that such leave is
<PAGE> 2
for a period of not more than 90 days or reemployment upon the expiration of
such leave is guaranteed by contract or statute. Notwithstanding the
foregoing, a leave of absence shall not be considered as interrupting the
Continuous Status of an Employee or Consultant if the leave has been designated
by the Company as (or required by law to be) a leave for which such status
shall continue. For purposes of this Plan, a change in status from an Employee
to a Consultant or from a Consultant to an Employee will not constitute a
termination of employment.
(j) "Director" shall mean a member of the Board.
(k) "Employee" shall mean any person, including officers,
Named Executives and those Directors who are also employees of the Company, who
are, employed by the Company or any Parent or Subsidiary of the Company. The
payment by the Company of a director's fee to a Director shall not be
sufficient to constitute "employment" of such Director by the Company.
(l) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(m) "Fair Market Value" means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system including without limitation the
National Market of the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") System, its Fair Market Value shall be the
closing sales price for such stock as quoted on such system on the date of
determination (if for a given day no sales were reported, the closing bid on
that day shall be used), as such price is reported in The Wall Street Journal
or such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ
System (but not on the National Market thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the bid and asked prices for the Common
Stock or;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith
by the Administrator.
(n) "Incentive Stock Option" shall mean an Option intended
to qualify as an incentive stock option within the meaning of Section 422 of
the Code, as designated in the applicable written option agreement.
(o) "Named Executive" shall mean any individual who, on the
last day of the Company's fiscal year, is the chief executive officer of the
Company (or is acting in such capacity) or among the four highest compensated
officers of the Company (other than the chief executive officer). Such officer
status shall be determined pursuant to the executive compensation disclosure
rules under the Exchange Act.
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<PAGE> 3
(p) "Nonstatutory Stock Option" shall mean an Option not
intended to qualify as an Incentive Stock Option, as designated in the
applicable written option agreement.
(q) "Officer" shall mean a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(r) "Option" shall mean a stock option granted pursuant to
the Plan.
(s) "Optioned Stock" shall mean the Common Stock subject to
an Option.
(t) "Optionee" shall mean an Employee or Consultant who
receives an Option.
(u) "Parent" shall mean a "parent corporation," whether now
or hereafter existing, as defined in Section 424(e) of the Code.
(v) "Plan" shall mean this 1995 Stock Option Plan.
(w) "Rule 16b-3" shall mean Rule 16b-3 promulgated under the
Exchange Act as the same may be amended from time to time, or any successor
provision.
(x) "S Corporation" shall mean a corporation that meets the
requirements of Sections 1361 and 1362 of the Code.
(y) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 14 of the Plan.
(z) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 14 of the Plan, the maximum aggregate number of shares that may be
optioned and sold under the Plan is 1,700,000 Shares of Common Stock. The
Shares may be authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares that were subject
thereto shall, unless the Plan shall have been terminated, become available for
future grant under the Plan. Notwithstanding any other provision of the Plan,
Shares issued under the Plan and later repurchased by the Company shall not
become available for future grant or sale under the Plan.
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<PAGE> 4
4. Administration of the Plan.
(a) Composition of Administrator.
(i) Multiple Administrative Bodies. If permitted
by Rule 16b-3, and by the legal requirements relating to the administration of
incentive stock option plans, if any, of applicable securities laws and the
Code (collectively, the "Applicable Laws"), the Plan may (but need not) be
administered by different administrative bodies with respect to directors,
officers who are not directors and Employees who are neither directors nor
officers.
(ii) Administration with respect to Directors and
Officers. With respect to grants of Options to Employees or Consultants who
are also Officers or Directors of the Company, the Plan shall be administered
by (A) the Board, if the Board may administer the Plan in compliance with Rule
16b-3 as it applies to a plan intended to qualify thereunder as a discretionary
plan and Section 162(m) of the Code as it applies so as to qualify grants of
Options to Named Executives as performance-based compensation, or (B) a
Committee designated by the Board to administer the Plan, which Committee shall
be constituted in such a manner as to permit the Plan to comply with Rule 16b-3
as it applies to a plan intended to qualify thereunder as a discretionary plan,
to qualify grants of Options to Named Executives as performance-based
compensation under Section 162(m) of the Code, and otherwise so as to satisfy
the Applicable Laws.
(iii) Administration with respect to Other Persons.
With respect to grants of Options to Employees or Consultants who are neither
Directors nor Officers of the Company, the Plan shall be administered by (A)
the Board or (B) a Committee designated by the Board, which Committee shall be
constituted in such a manner as to satisfy the Applicable Laws.
(iv) General. If a Committee has been appointed
pursuant to subsection (ii) or (iii) of this Section 4(a), such Committee
shall continue to serve in its designated capacity until otherwise directed by
the Board. From time to time the Board may increase the size of any Committee
and appoint additional members thereof, remove members (with or without cause)
and appoint new members in substitution therefor, fill vacancies (however
caused) and remove all members of a Committee and thereafter directly
administer the Plan, all to the extent permitted by the Applicable Laws and, in
the case of a Committee appointed under subsection (ii), to the extent
permitted by Rule 16b-3 as it applies to a plan intended to qualify thereunder
as a discretionary plan, and to the extent required under Section 162(m) of the
Code to qualify grants of Options to Named Executives as performance-based
compensation.
(b) Powers of the Administrator. Subject to the
provisions of the Plan and in the case of a Committee, the specific duties
delegated by the Board to such Committee, the Administrator shall have the
authority, in its discretion:
(i) to determine the Fair Market Value of the Common
Stock, in accordance with Section 2(m) of the Plan;
-4-
<PAGE> 5
(ii) to select the Employees and Consultants to whom
Options may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options
are granted hereunder;
(iv) to determine the number of shares of Common
Stock to be covered by each such award granted hereunder;
(v) to approve forms of agreement for use under the
Plan;
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted hereunder
(including, but not limited to, the share price and any restriction or
limitation, or any vesting acceleration or waiver of forfeiture restrictions
regarding any Option and/or the shares of Common Stock relating thereto, based
in each case on such factors as the Administrator shall determine, in its sole
discretion);
(vii) to determine whether, to what extent and
under what circumstances Common Stock and other amounts payable with respect to
an award under this Plan shall be deferred either automatically or at the
election of the participant (including providing for and determining the
amount, if any, of any deemed earnings on any deferred amount during any
deferral period); and
(viii) to reduce the exercise price of any Option
to the then current Fair Market Value if the Fair Market Value of the Shares
covered by such Option shall have declined since the date the Option was
granted;
(c) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options.
5. Eligibility.
(a) Recipients of Grants. Nonstatutory Stock Options may
be granted only to Employees and Consultants. Incentive Stock Options may be
granted only to Employees. An Employee or Consultant who has been granted an
Option may, if he or she is otherwise eligible, be granted an additional Option
or Options.
(b) Type of Option. Each Option shall be designated in
the written option agreement as either an Incentive Stock Option or a
Nonstatutory Stock Option. However, notwithstanding such designations, to the
extent that the aggregate Fair Market Value of Shares with respect to which
Incentive Stock Options are exercisable for the first time by an Optionee
during any calendar year (under all plans of the Company or any Parent or
Subsidiary) exceeds $100,000, such excess Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 5(b), Incentive
Stock Options shall be taken into account in the order in which they
-5-
<PAGE> 6
were granted, and the Fair Market Value of the Shares shall be determined as of
the time the Option with respect to such Shares is granted.
(c) No Employment Rights. The Plan shall not confer upon
any Optionee any right with respect to continuation of employment or consulting
relationship with the Company, nor shall it interfere in any way with his or
her right or the Company's right to terminate his or her employment or
consulting relationship at any time, with or without cause.
6. Term of Plan. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the
shareholders of the Company as described in Section 20 of the Plan. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 16 of the Plan.
7. Term of Option. The term of each Option shall be the term
stated in the Option Agreement; provided, however, that in the case of an
Incentive Stock Option, the term shall be no more than ten (10) years from the
date of grant thereof or such shorter term as may be provided in the Option
Agreement, and provided further that, in the case of an Option granted to an
Optionee who, at the time the Option is granted, owns stock representing more
than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the term of the Option shall be five (5)
years from the date of grant thereof or such shorter term as may be provided in
the Option Agreement.
8. Limitation on Grants to Employees. Subject to adjustment as
provided in this Plan, the maximum number of Shares which may be subject to
Options granted to any one Employee under this Plan for any fiscal year of the
Company shall be 400,000.
9. Option Exercise Price and Consideration.
(a) The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be such price as is determined
by the Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time
of the grant of such Incentive Stock Option, owns stock representing more than
ten percent (10%) of the voting power of all classes of stock of the Company or
any Parent or Subsidiary, the per Share exercise price shall be no less than
110% of the Fair Market Value per Share on the date of grant;
(B) granted to any other Employee, the per
Share exercise price shall be no less than 100% of the Fair Market Value per
Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option
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<PAGE> 7
(A) granted to a person who, at the time of
the grant of such Option, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of the grant;
(B) granted to a person who, at the time of
the grant of such Option, is a Named Executive of the Company, the per share
Exercise Price shall be no less than 100% of the Fair Market Value on the date
of grant;
(C) granted to any person other than a
Named Executive, the per Share exercise price shall be no less than 85% of the
Fair Market Value per Share on the date of grant (and no less than 90% prior to
the termination of the Company's status as an S Corporation).
(iii) In the case of an Option granted on or after
the effective date of registration of any class of equity security of the
Company pursuant to Section 12 of the Exchange Act and prior to six months
after the termination of such registration, the per Share exercise price shall
be no less than 100% of the Fair Market Value per Share on the date of grant.
(b) The consideration to be paid for the Shares to be
issued upon exercise of an Option, including the method of payment, shall be
determined by the Administrator (and, in the case of an Incentive Stock
Option, shall be determined at the time of grant) and may consist entirely of
(1) cash, (2) check, (3) promissory note, (4) other Shares that (x) in the
case of Shares acquired upon exercise of an Option either have been owned by
the Optionee for more than six months on the date of surrender or were not
acquired, directly or indirectly, from the Company, and (y) have a Fair Market
Value on the date of surrender equal to the aggregate exercise price of the
Shares as to which said Option shall be exercised, (5) authorization from the
Company to retain from the total number of Shares as to which the Option is
exercised that number of Shares having a Fair Market Value on the date of
exercise equal to the exercise price for the total number of Shares as to which
the Option is exercised, (6) delivery of a properly executed exercise notice
together with irrevocable instructions to a broker to deliver promptly to the
Company the amount of sale or loan proceeds required to pay the exercise price,
(7) delivery of an irrevocable subscription agreement for the Shares that
irrevocably obligates the option holder to take and pay for the Shares not more
than twelve months after the date of delivery of the subscription agreement,
(8) any combination of the foregoing methods of payment, or (9) such other
consideration and method of payment for the issuance of Shares to the extent
permitted under Applicable Laws. In making its determination as to the type of
consideration to accept, the Administrator shall consider if acceptance of such
consideration may be reasonably expected to benefit the Company.
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the
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<PAGE> 8
Administrator, including performance criteria with respect to the Company
and/or the Optionee, and as shall be permissible under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may, as authorized by the Administrator, consist of
any consideration and method of payment allowable under Section 9(b) of the
Plan. Until the issuance (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company) of the
stock certificate evidencing such Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Company shall issue (or
cause to be issued) such stock certificate promptly upon exercise of the
Option. No adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued, except as
provided in Section 14 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Conditions upon Exercise. Notwithstanding Section
10(a) above, if the Company is an S Corporation at the time when an Optionee
intends to exercise an Option:
(i) the Option will not be exercisable if the
purchase of the Option Shares would cause the 35 shareholder limit of Section
1361 of the Code to be exceeded; and
(ii) if the exercise is not prohibited by paragraph
(i) above, the Optionee shall be required, as a condition to such exercise, to
sign the Buy - Sell Agreement dated October 31, 1987, as amended, among the
shareholders of the Company.
(c) Termination of Status as an Employee or Consultant.
In the event of termination of an Optionee's Continuous Status as an Employee
or Consultant, such Optionee may, but only within thirty (30) days (or such
other period of time, not exceeding three (3) months in the case of an
Incentive Stock Option or six (6) months in the case of a Nonstatutory Stock
Option, as is determined by the Administrator, with such determination in the
case of an Incentive Stock Option being made at the time of grant of the
Option) after the date of such termination (but in no event later than the date
of expiration of the term of such Option as set forth in the Option Agreement),
exercise his or her Option to the extent that he or she was entitled to
exercise it at the date of such termination. To the extent that the Optionee
was not entitled to exercise the Option at the date of such termination, or if
the optionee does not exercise such Option within the time specified herein,
the Option shall terminate.
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<PAGE> 9
(d) Disability of Optionee. Notwithstanding Section
10(c) above, in the event of termination of an Optionee's Continuous Status as
an Employee or Consultant as a result of his or her total and permanent
disability (as defined in Section 22(e)(3) of the Code), he or she may, but
only within six (6) months (or such other period of time not exceeding twelve
(12) months as is determined by the Administrator, with such determination in
the case of an Incentive Stock Option being made at the time of grant of the
Option) from the date of such termination (but in no event later than the date
of expiration of the term of such Option as set forth in the Option Agreement),
exercise his or her Option to the extent he or she was entitled to exercise it
at the date of such termination. To the extent that he or she was not entitled
to exercise the Option at the date of termination, or if he does not exercise
such Option within the time specified herein, the Option shall terminate.
(e) Death of Optionee. In the event of the death of an
Optionee:
(i) during the term of the Option who is at the
time of his death an Employee or Consultant of the Company and who shall have
been in Continuous Status as an Employee or Consultant since the date of grant
of the Option, the Option may be exercised, at any time within six (6) months
(or such other period of time, not exceeding six (6) months, as is determined
by the Administrator, with such determination in the case of an Incentive Stock
Option being made at the time of grant of the Option) following the date of
death (but in no event later than the date of expiration of the term of such
Option as set forth in the Option Agreement), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance
but only to the extent of the right to exercise that would have accrued had the
Optionee continued living and remained in Continuous Status as an Employee or
Consultant three (3) months (or such other period of time as is determined by
the Administrator as provided above) after the date of death, subject to the
limitation set forth in Section 5(b); or
(ii) within thirty (30) days (or such other period
of time not exceeding three (3) months as is determined by the Administrator,
with such determination in the case of an Incentive Stock Option being made at
the time of grant of the Option) after the termination of Continuous Status as
an Employee or Consultant, the Option may be exercised, at any time within six
(6) months following the date of death (but in no event later than the date of
expiration of the term of such Option as set forth in the Option Agreement), by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise that had accrued at the date of termination.
(f) Rule 16b-3. Options granted to persons subject to
Section 16(b) of the Exchange Act must comply with Rule 16b-3 and shall contain
such additional conditions or restrictions as may be required thereunder to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
11. Withholding Taxes. As a condition to the exercise of Options
granted hereunder, the Optionee shall make such arrangements as the
Administrator may require for the satisfaction of any federal, state, local or
foreign withholding tax obligations that may arise in connection with
-9-
<PAGE> 10
the exercise, receipt or vesting of such Option. The Company shall not be
required to issue any Shares under the Plan until such obligations are
satisfied.
12. Stock Withholding to Satisfy Withholding Tax Obligations. At
the discretion of the Administrator, Optionees may satisfy withholding
obligations as provided in this paragraph. When an Optionee incurs tax
liability in connection with an Option which tax liability is subject to tax
withholding under applicable tax laws, and the Optionee is obligated to pay the
Company an amount required to be withheld under applicable tax laws, the
Optionee may satisfy the withholding tax obligation by one or some combination
of the following methods: (a) by cash payment, or (b) out of Optionee's current
compensation, (c) if permitted by the Administrator, in its discretion, by
surrendering to the Company Shares that (i) in the case of Shares previously
acquired from the Company, have been owned by the Optionee for more than six
months on the date of surrender, and (ii) have a fair market value on the date
of surrender equal to or less than Optionee's marginal tax rate times the
ordinary income recognized, or (d) by electing to have the Company withhold
from the Shares to be issued upon exercise of the Option that number of Shares
having a fair market value equal to the amount required to be withheld. For
this purpose, the fair market value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be
determined (the "Tax Date").
Any surrender by an Officer or Director of previously
owned Shares to satisfy tax withholding obligations arising upon exercise of
this Option must comply with the applicable provisions of Rule 16b-3 and shall
be subject to such additional conditions or restrictions as may be required
thereunder to qualify for the maximum exemption from Section 16 of the Exchange
Act with respect to Plan transactions.
All elections by an Optionee to have Shares withheld
to satisfy tax withholding obligations shall be made in writing in a form
acceptable to the Administrator and shall be subject to the following
restrictions:
(a) the election must be made on or prior to the
applicable Tax Date;
(b) once made, the election shall be irrevocable as to
the particular Shares of the Option as to which the election is made;
(c) all elections shall be subject to the consent or
disapproval of the Administrator;
(d) if the Optionee is an Officer or Director, the
election must comply with the applicable provisions of Rule 16b-3 and shall be
subject to such additional conditions or restrictions as may be required
thereunder to qualify for the maximum exemption from Section 16 of the Exchange
Act with respect to Plan transactions.
In the event the election to have Shares withheld is
made by an Optionee and the Tax Date is deferred under Section 83 of the Code
because no election is filed under Section 83(b) of the Code, the Optionee
shall receive the full number of Shares with respect to
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<PAGE> 11
which the Option is exercised but such Optionee shall be unconditionally
obligated to tender back to the Company the proper number of Shares on the Tax
Date.
13. Non-Transferability of Options. No Option may be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution. The designation
of a beneficiary by an Optionee will not constitute a transfer. An Option may
be exercised, during the lifetime of the Optionee, only by the Optionee or a
transferee permitted by this Section 13.
14. Adjustments Upon Changes in Capitalization or Merger.
(a) Adjustments. Subject to any required action by the
shareholders of the Company, the number of Shares covered by each outstanding
Option, the number of Shares that have been authorized for issuance under the
Plan but as to which no Options have yet been granted or which have been
returned to the Plan upon cancellation or expiration of an Option, the maximum
number of Shares for which Options may be granted to any Employee under Section
8 of the Plan, and the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock of the Company resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of issued shares
of Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Administrator, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an Option.
(b) Corporate Transactions. In the event of the proposed
dissolution or liquidation of the Company, the Option will terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Administrator. The Administrator may, in the exercise of its
sole discretion in such instances, declare that any Option shall terminate as
of a date fixed by the Administrator and give each Optionee the right to
exercise his or her Option as to all or any part of the Optioned Stock,
including Shares as to which the Option would not otherwise be exercisable. In
the event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, the
Option shall be assumed or an equivalent option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Administrator determines, in the exercise of its sole discretion and
in lieu of such assumption or substitution, that the Optionee shall have the
right to exercise the Option as to some or all of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. If the
Administrator makes an Option exercisable in lieu of assumption or substitution
in the event of a merger or sale of assets, the Administrator shall notify the
Optionee that the Option shall be exercisable for a period of fifteen
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<PAGE> 12
(15) days from the date of such notice, and the Option will terminate upon the
expiration of such period.
15. Time of Granting Options. The date of grant of an Option
shall, for all purposes, be the date on which the Administrator makes the
determination granting such Option or such other date as is determined by the
Administrator. Notice of the determination shall be given to each Employee or
Consultant to whom an Option is so granted within a reasonable time after the
date of such grant.
16. Amendment and Termination of the Plan.
(a) Authority to Amend or Terminate. The Board may
amend or terminate the Plan from time to time in such respects as the Board may
deem advisable; provided that, the following revisions or amendments shall
require approval of the shareholders of the Company in the manner described in
Section 20 of the Plan:
(i) any increase in the number of Shares subject to
the Plan, other than in connection with an adjustment under
Section 14 of the Plan;
(ii) any change in the designation of the class of
persons eligible to be granted Options;
(iii) any change in the limitation on grants to
employees as described in Section 8 of the Plan or other
changes which would require shareholder approval to qualify
options granted hereunder as performance-based compensation
under Section 162(m) of the Code; or
(iv) if the Company has a class of equity securities
registered under Section 12 of the Exchange Act at the time of
such revision or amendment, any material increase in the
benefits accruing to participants under the Plan.
(b) Shareholder Approval. If any amendment requiring
shareholder approval under Section 16(a) of the Plan is made subsequent to the
first registration of any class of equity securities by the Company under
Section 12 of the Exchange Act, such shareholder approval shall be solicited as
described in Section 20 of the Plan.
(c) Effect of Amendment or Termination. Any such
amendment or termination of the Plan shall not affect Options already granted
and such Options shall remain in full force and effect as if this Plan had not
been amended or terminated, unless mutually agreed otherwise between the
Optionee and the Board, which agreement must be in writing and signed by the
Optionee and the Company.
17. Conditions Upon Issuance of Shares. Shares shall not be
issued pursuant to the exercise of an Option unless the exercise of such Option
and the issuance and delivery of such Shares pursuant thereto shall comply with
all relevant provisions of Applicable Laws, including,
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<PAGE> 13
without limitation, the Securities Act of 1933, as amended, the Exchange Act,
the rules and regulations promulgated thereunder, and the requirements of any
stock exchange upon which the Shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment
and without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
18. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan. The inability of
the Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
19. Option Agreement. Options shall be evidenced by written
option agreements in such forms as the Administrator shall approve.
20. Shareholder Approval.
(a) Continuance of the Plan shall be subject to approval
by the shareholders of the Company within twelve (12) months before or after
the date the Plan is adopted. Such shareholder approval shall be obtained in
the manner and to the degree required under applicable federal and state law.
(b) In the event that the Company registers any class of
equity securities pursuant to Section 12 of the Exchange Act, any required
approval of the shareholders of the Company obtained after such registration
shall be solicited substantially in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder.
(c) If any required approval by the shareholders of the
Plan itself or of any amendment thereto is solicited at any time otherwise than
in the manner described in Section 20(b) hereof, then the Company shall, at or
prior to the first annual meeting of shareholders held subsequent to the later
of (1) the first registration of any class of equity securities of the Company
under Section 12 of the Exchange Act or (2) the granting of an Option hereunder
to an officer or director after such registration, do the following:
(i) furnish in writing to the holders entitled to
vote for the Plan substantially the same information that would be required (if
proxies to be voted with respect to approval or disapproval of the Plan or
amendment were then being solicited) by the rules and regulations in effect
under Section 14(a) of the Exchange Act at the time such information is
furnished; and
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<PAGE> 14
(ii) file with, or mail for filing to, the
Securities and Exchange Commission four copies of the written information
referred to in subsection (i) hereof not later than the date on which such
information is first sent or given to shareholders.
21. Information to Optionees. The Company shall provide to each
Optionee, during the period for which such Optionee has one or more Options
outstanding, copies of all annual reports and other information which are
provided to all shareholders of the Company. The Company shall not be required
to provide such information if the issuance of Options under the Plan is
limited to key employees whose duties in connection with the Company assure
their access to equivalent information.
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<PAGE> 15
BUSINESS RESOURCE GROUP
1995 STOCK OPTION PLAN
NOTICE OF STOCK OPTION GRANT
Optionee's Name and Address:
[OPTIONEE]
__________________________
__________________________
You have been granted an option to purchase Common Stock of Business
Resource Group (the "Company") as follows:
<TABLE>
<S> <C>
Date of Grant: [GRANT DATE]
Option Price Per Share: [EXERCISE PRICE]
Total Number of Shares Granted: [SHARES GRANTED]
Total Price of Shares Granted: [TOTAL PRICE]
Type of Option: Incentive Stock Option
-------
Nonstatutory Stock Option
-------
Term/Expiration Date: [TERM DATE]
Vesting Commencement Date: [VESTING DATE]
Vesting Schedule: This Option shall vest and be
exercisable cumulatively as follows:
At the end of each one-month period
following the Vesting Commencement Date,
1/48th of the total number of shares subject
to this Option shall vest and this Option shall become
exercisable for such shares plus any shares previously
vested but unpurchased.
</TABLE>
-1-
<PAGE> 16
<TABLE>
<S> <C>
Termination Period: Option may be exercised for a period of
30 days after termination of employment or
consulting relationship except as set out
in Sections 7 and 8 of the Stock Option
Agreement (but in no event later than the
Expiration Date).
</TABLE>
By your signature and the signature of the Company's representative
below, you and the Company agree that this option is granted under and governed
by the terms and conditions of the 1995 Stock Option Plan and the Stock Option
Agreement, both of which are attached to and made a part of this document.
<TABLE>
<S> <C>
OPTIONEE: BUSINESS RESOURCE GROUP
By:
- ------------------------------------------ ------------------------------
[OPTIONEE]
Title:
-----------------------------
</TABLE>
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<PAGE> 17
BUSINESS RESOURCE GROUP
STOCK OPTION AGREEMENT
1. Grant of Option. Business Resource Group, a California
corporation (the "Company"), hereby grants to the Optionee named in the
attached Notice of Stock Option Grant (the "Optionee"), an option (the
"Option") to purchase the total number of shares of Common Stock (the "Shares")
set forth in the Notice of Stock Option Grant, at the exercise price per share
set forth in the Notice of Stock Option Grant (the "Exercise Price") subject to
the terms, definitions and provisions of the 1995 Stock Option Plan (the
"Plan") adopted by the Company, which is incorporated in this Agreement by
reference. In the event of a conflict between the terms of the Plan and the
terms of this Agreement, the terms of the Plan shall govern. Unless otherwise
defined in this Agreement, the terms used in this Agreement shall have the
meanings defined in the Plan.
If designated an Incentive Stock Option in the Notice of Stock Option
Grant, this Option is intended to qualify as an Incentive Stock Option as
defined in Section 422 of the Code and, if not so designated, this Option is
intended to be a Nonstatutory Stock Option.
2. Exercise of Option. This Option shall be exercisable during
its term in accordance with the Exercise Schedule set out in the Notice of
Stock Option Grant and with the provisions of Sections 9 and 10 of the Plan as
follows:
(a) Right to Exercise.
(i) This Option may not be exercised for a
fraction of a share.
(ii) In the event of Optionee's death, disability
or other termination of employment, the exercisability of the Option is
governed by Sections 6, 7 and 8 below, subject to the limitations contained in
paragraphs (iv) and (v) below.
(iii) In no event may this Option be exercised if
at the time of exercise the Company is an S Corporation and if the exercise
would cause the 35 shareholder limit of Section 1361 of the Code to be
exceeded.
(iv) In no event may this Option be exercised
after the date of expiration of the term of this Option as set forth in the
Notice of Stock Option Grant.
(v) If designated an Incentive Stock Option in
the Notice of Stock Option Grant, in the event that the number of shares
subject to this Option, when aggregated with all other incentive stock options
granted to Optionee by the Company or any Parent or Subsidiary, for which such
options are first exercisable in any calendar year have an aggregate fair
market value (determined for each Share as of the Date of Grant of the option
covering such Share) in excess of $100,000, the shares in excess of $100,000
shall be treated as subject to a Nonstatutory Stock Option, as provided in
Section 5 of the Plan.
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<PAGE> 18
(b) Method of Exercise.
(i) This Option shall be exercisable by
delivering to the Company a written notice of exercise (in the form attached as
Exhibit A) which shall state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised, and such other
representations and agreements as to the holder's investment intent with
respect to such shares of Common Stock as may be required by the Company
pursuant to the provisions of the Plan. Such written notice shall be signed by
the Optionee and shall be delivered in person or by certified mail to the
Secretary of the Company. The written notice shall be accompanied by payment
of the Exercise Price. This Option shall be deemed to be exercised upon
receipt by the Company of such written notice accompanied by the Exercise
Price.
(ii) As a condition to the exercise of this
Option, the Optionee agrees to make adequate provision for federal, state or
other tax withholding obligations, if any, which arise upon the exercise of the
Option or disposition of Shares, whether by withholding, direct payment to the
Company, or otherwise, as the Company may direct.
(iii) As a condition to the exercise of this
Option, if the Company is an S Corporation at the time of exercise, Optionee
agrees that he or she will sign the Buy - Sell Agreement dated October 31,
1987, as amended, among the shareholders of the Company.
(iv) No Shares will be issued pursuant to the
exercise of an Option unless such issuance and such exercise shall comply with
all relevant provisions of law and the requirements of any stock exchange upon
which the Shares may then be listed. Assuming such compliance, for income tax
purposes the Shares shall be considered transferred to the Optionee on the date
on which the Option is exercised with respect to such Shares.
3. Optionee's Representations. In the event the Shares
purchasable pursuant to the exercise of this Option have not been registered
under the Securities Act of 1933, as amended, at the time this Option is
exercised, Optionee shall, if required by the Company, concurrently with the
exercise of all or any portion of this Option, deliver to the Company an
investment representation statement in customary form, a copy of which is
available for Optionee's review from the Company upon request.
4. Method of Payment. Payment of the Exercise Price shall be by
any of the following, or a combination of the following, at the election of the
Optionee and as specified on the notice of exercise form: (i) cash; (ii)
check; (iii) surrender of other shares of Common Stock of the Company which
either have been owned by the Optionee for more than six (6) months on the date
of surrender or were not acquired, directly or indirectly, from the Company,
and which have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised; or (iv) if there is a public market for the Shares and they are
registered under the Securities Act of 1933, as amended, delivery of a properly
executed exercise notice together with irrevocable instructions to a broker to
deliver promptly to the Company the amount of sale or loan proceeds required to
pay the exercise price.
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<PAGE> 19
5. Restrictions on Exercise. This Option may not be exercised
until such time as the Plan has been approved by the shareholders of the
Company, or if the issuance of such Shares upon such exercise or the method of
payment of consideration for such shares would constitute a violation of any
applicable federal or state securities or other law or regulation, including
any rule under Part 207 of Title 12 of the Code of Federal Regulations
("Regulation G") as promulgated by the Federal Reserve Board. As a condition
to the exercise of this Option, the Company may require Optionee to make any
representation and warranty to the Company as may be required by any applicable
law or regulation.
6. Termination of Relationship. In the event of termination of
Optionee's Continuous Status as an Employee or Consultant, Optionee may, to the
extent otherwise so entitled at the date of such termination (the "Termination
Date"), exercise this Option during the Termination Period set out in the
Notice of Grant. To the extent that Optionee was not entitled to exercise this
Option at the date of such termination, or if Optionee does not exercise this
Option within the time specified in the Notice of Grant, the Option shall
terminate.
7. Disability of Optionee. Notwithstanding the provisions of
Section 6 above, in the event of termination of Optionee's Continuous Status as
an Employee or Consultant as a result of total and permanent disability (as
defined in Section 22(e)(3) of the Code), Optionee may, but only within six (6)
months (or such other period of time not exceeding twelve (12) months as is
determined by the Board) from the date of termination of employment (but in no
event later than the date of expiration of the term of this Option as set forth
in Section 10 below), exercise the Option to the extent otherwise so entitled
at the date of such termination. To the extent that Optionee was not entitled
to exercise the Option at the date of termination, or if Optionee does not
exercise such Option (to the extent otherwise so entitled) within the time
specified in this Agreement, the Option shall terminate.
8. Death of Optionee. In the event of the death of Optionee:
(a) during the term of this Option and while an Employee
or Consultant of the Company and having been in Continuous Status as an
Employee or Consultant since the date of grant of the Option, the Option may be
exercised, at any time within six (6) months following the date of death (but
in no event later than the date of expiration of the term of this Option as set
forth in Section 10 below), by Optionee's estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only to the
extent of the right to exercise that would have accrued had Optionee continued
living and remained in Continuous Status as an Employee or Consultant three (3)
months after the date of death, subject to the limitation contained in Section
2(a)(v) above in the case of an Incentive Stock Option; or
(b) within thirty (30) days (or such other period of time
not exceeding three (3) months as is determined by the Board) after the
termination of Optionee's Continuous Status as an Employee or Consultant, the
Option may be exercised, at any time within six (6) months following the date
of death (but in no event later than the date of expiration of the term of this
Option as set forth in Section 10 below), by Optionee's estate or by a person
who acquired the
-5-
<PAGE> 20
right to exercise the Option by bequest or inheritance, but only to the extent
of the right to exercise that had accrued at the date of termination.
9. Non-Transferability of Option. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution. The designation of a beneficiary does not constitute a transfer.
An Option may be exercised during the lifetime of Optionee only by the Optionee
or a transferee permitted by this section. The terms of this Option shall be
binding upon the executors, administrators, heirs, successors and assigns of
the Optionee.
10. Term of Option. This Option may be exercised only within the
term set out in the Notice of Stock Option Grant, and may be exercised during
such term only in accordance with the Plan and the terms of this Option.
11. No Additional Employment Rights. Optionee understands and
agrees that the vesting of Shares pursuant to the Exercise Schedule is earned
only by continuing as an Employee or Consultant at the will of the Company (not
through the act of being hired, being granted this Option or acquiring Shares
under this Agreement). Optionee further acknowledges and agrees that nothing
in this Agreement, nor in the Plan which is incorporated in this Agreement by
reference, shall confer upon Optionee any right with respect to continuation as
an Employee or Consultant with the Company, nor shall it interfere in any way
with his or her right or the Company's right to terminate his or her employment
or consulting relationship at any time, with or without cause.
12. Tax Consequences. Set forth below is a brief summary of the
federal tax consequences of exercise of this Option and disposition of the
Shares under the law in effect as of the date of grant. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
OPTIONEE SHOULD CONSULT HIS OR HER OWN TAX ADVISER BEFORE EXERCISING THIS
OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of Incentive Stock Option. If this Option
is an Incentive Stock Option, there will be no regular federal income tax
liability upon the exercise of the Option, although the excess, if any, of the
fair market value of the Shares on the date of exercise over the Exercise Price
will be treated as an item of alternative minimum taxable income for federal
tax purposes and may subject the Optionee to the alternative minimum tax in the
year of exercise.
(b) Exercise of Nonstatutory Stock Option. If this
Option is a Nonstatutory Stock Option, there may be a regular federal income
tax liability upon the exercise of the Option. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates)
equal to the excess, if any, of the fair market value of the Shares on the date
of exercise over the Exercise Price. In addition, the Company will be required
to withhold from Optionee's compensation or collect from Optionee and pay to
the applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise.
(c) Disposition of Shares. If this Option is an
Incentive Stock Option and if Shares transferred pursuant to the Option are
held for more than one year after exercise and are
-6-
<PAGE> 21
disposed of more than two years after the Date of Grant, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes. If Shares purchased under an Incentive Stock Option are
disposed of before the end of either of two such holding periods, then any gain
realized on such disposition will be treated as compensation income (taxable at
ordinary income rates) to the extent of the excess, if any, of the lesser of
(i) the fair market value of the Shares on the date of exercise, or (ii) the
sales proceeds, over the Exercise Price. If this Option is a Nonstatutory
Stock Option, then gain realized on the disposition of Shares will be treated
as long-term or short-term depending on whether or not the disposition occurs
more than one year after the exercise date.
(d) Notice of Disqualifying Disposition. If this Option
is an Incentive Stock Option, and if Optionee sells or otherwise disposes of
any of the Shares acquired pursuant to the Incentive Stock Option on or before
the later of (1) the date two years after the Date of Grant, or (2) the date
one year after transfer of such Shares to the Optionee upon exercise of the
Incentive Stock Option, the Optionee shall notify the Company in writing within
thirty (30) days after the date of any such disposition. Optionee agrees that
Optionee may be subject to income tax withholding by the Company on the
compensation income recognized by the Optionee from the early disposition by
payment in cash or out of the current earnings paid to the Optionee.
13. Market Standoff Agreement. In connection with the initial
public offering of the Company's securities and upon request of the Company or
the underwriters managing any underwritten offering of the Company's
securities, Optionee hereby agrees not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any Shares (other
than those included in the registration) without the prior written consent of
the Company or such underwriters, as the case may be, for such period of time
(not to exceed 180 days) from the effective date of such registration as may be
requested by the Company or such managing underwriters; provided, however, that
the Optionee need not so agree unless a majority of the Company's officers and
directors and a majority of the holders of at least 5% of the Company's
outstanding securities also agree to be similarly bound.
14. Signature. This Stock Option Agreement shall be deemed
executed by the Company and the Optionee upon execution by such parties of the
Notice of Stock Option Grant attached to this Stock Option Agreement.
-7-
<PAGE> 22
EXHIBIT A
NOTICE OF EXERCISE
To: Business Resource Group
Attn: Secretary
Subject: Notice of Intention to Exercise Stock Option
This is official notice that the undersigned ("Optionee") intends to
exercise Optionee's option to purchase __________ shares of Business Resource
Group Common Stock, under the Company's 1995 Stock Option Plan, as amended, and
the Stock Option Agreement dated _______________, as follows:
Grant Number: ________________________________
Number of Shares: ________________________________
Date of Purchase: ________________________________
Purchase Price: ________________________________
Method of Payment: ________________________________
Social Security No.: ________________________________
The shares should be issued as follows:
Name: __________________________________________
Address: __________________________________________
__________________________________________
__________________________________________
Signed: __________________________________________
Date: __________________________________________
<PAGE> 1
EXHIBIT 4.2
As amended on December 10, 1996
BUSINESS RESOURCE GROUP
1995 DIRECTORS' STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Directors' Stock
Option Plan are to attract and retain the best available personnel for service
as Directors of the Company, to provide additional incentive to the Outside
Directors of the Company to serve as Directors, and to encourage their
continued service on the Board.
All options granted hereunder shall be "nonstatutory stock
options".
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(c) "Common Stock" shall mean the Common Stock of the
Company.
(d) "Company" shall mean Business Resource Group, a
California corporation.
(e) "Continuous Status as a Director" shall mean the
absence of any interruption or termination of service as a Director.
(f) "Director" shall mean a member of the Board.
(g) "Employee" shall mean any person, including officers
and directors, employed by the Company or any Parent or Subsidiary of the
Company. The payment of a director's fee by the Company shall not be
sufficient in and of itself to constitute "employment" by the Company.
(h) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(i) "Option" shall mean a stock option granted pursuant
to the Plan.
(j) "Optioned Stock" shall mean the Common Stock subject
to an Option.
(k) "Optionee" shall mean an Outside Director who receives
an Option.
(l) "Outside Director" shall mean a Director who is not
an Employee.
(m) "Parent" shall mean a "parent corporation", whether
now or hereafter existing, as defined in Section 424(e) of the Code.
(n) "Plan" shall mean this 1995 Directors' Stock Option
Plan.
<PAGE> 2
(o) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 11 of the Plan.
(p) "Subsidiary" shall mean a "subsidiary corporation",
whether now or hereafter existing, as defined in Section 424(f) of the Code.
(q) "S Corporation" shall mean a corporation that meets
the requirements of Sections 1361 and 1362 of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of Shares which may be
optioned and sold under the Plan is 175,000 Shares (the "Pool") of Common
Stock. The Shares may be authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become
available for future grant under the Plan. If Shares which were acquired upon
exercise of an Option are subsequently repurchased by the Company, such Shares
shall not in any event be returned to the Plan and shall not become available
for future grant under the Plan.
4. Administration of and Grants of Options under the Plan.
(a) Administrator. Except as otherwise required herein,
the Plan shall be administered by the Board.
(b) Procedure for Grants. All grants of Options
hereunder shall be automatic and nondiscretionary and shall be made strictly in
accordance with the following provisions:
(i) No person shall have any discretion to select
which Outside Directors shall be granted Options or to determine the number of
Shares to be covered by Options granted to Outside Directors.
(ii) Each Outside Director shall be automatically
granted an Option to purchase 20,000 Shares (the "First Option") on the date on
which the later of the following events occurs: (A) the effective date of this
Plan, as determined in accordance with Section 6 hereof, or (B) the date on
which such person first becomes an Outside Director, whether through election
by the shareholders of the Company or appointment by the Board of Directors to
fill a vacancy.
(iii) After the First Option has been granted to an
Outside Director, such Outside Director shall thereafter be automatically
granted an Option to purchase 5,000 Shares (a "Subsequent Option") on the first
calendar day of the Company's fiscal year, provided that, on such date, he or
she shall have served on the Board for at least three (3) months.
(iv) Notwithstanding the provisions of subsections
(ii) and (iii) hereof, in the event that a grant would cause the number of
Shares subject to outstanding Options plus the number of Shares previously
purchased upon exercise of Options to exceed the Pool, then each
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<PAGE> 3
such automatic grant shall be for that number of Shares determined by dividing
the total number of Shares remaining available for grant by the number of
Outside Directors on the automatic grant date. Any further grants shall then
be deferred until such time, if any, as additional Shares become available for
grant under the Plan through action of the shareholders to increase the number
of Shares which may be issued under the Plan or through cancellation or
expiration of Options previously granted hereunder.
(v) Notwithstanding the provisions of subsections
(ii) and (iii) hereof, any grant of an Option made before the Company has
obtained shareholder approval of the Plan in accordance with Section 17 hereof
shall be conditioned upon obtaining such shareholder approval of the Plan in
accordance with Section 17 hereof.
(vi) The terms of each First Option granted
hereunder shall be as follows:
(1) the First Option shall be
exercisable only while the Outside Director remains a Director of the Company,
except as set forth in Section 9 hereof.
(2) the exercise price per Share shall
be 100% of the fair market value per Share at the beginning of the date of
grant of the First Option, determined in accordance with Section 8 hereof.
(3) the First Option shall become
exercisable in installments cumulatively as to 25% of the Shares subject to the
First Option on each of the first, second, third and fourth anniversaries of
the date of grant of the First Option.
(vii) The terms of each Subsequent Option granted
hereunder shall be as follows:
(1) the Subsequent Option shall be
exercisable only while the Outside Director remains a Director of the Company,
except as set forth in Section 9 hereof.
(2) the exercise price per Share shall
be 100% of the fair market value per Share at the beginning of the date of
grant of the Subsequent Option, determined in accordance with Section 8 hereof.
(3) the Subsequent Option shall become
exercisable as to one hundred percent (100%) of the Shares subject to the
Subsequent Option on the fourth anniversary of the date of grant of the
Subsequent Option.
(c) Powers of the Board. Subject to the provisions and
restrictions of the Plan, the Board shall have the authority, in its
discretion: (i) to determine, upon review of relevant information and in
accordance with Section 8(b) of the Plan, the fair market value of the Common
Stock; (ii) to determine the exercise price per share of Options to be granted,
which exercise price shall be determined in accordance with Section 8(a) of the
Plan; (iii) to interpret the Plan; (iv) to prescribe, amend and rescind rules
and regulations relating to the Plan; (v) to authorize any person to execute on
behalf of the Company any instrument required to effectuate the grant of an
Option
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<PAGE> 4
previously granted hereunder; and (vi) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(d) Effect of Board's Decision. All decisions,
determinations and interpretations of the Board shall be final and binding on
all Optionees and any other holders of any Options granted under the Plan.
(e) Suspension or Termination of Option. If the
President or his or her designee reasonably believes that an Optionee has
committed an act of misconduct, the President may suspend the Optionee's right
to exercise any option pending a determination by the Board of Directors
(excluding the Outside Director accused of such misconduct). If the Board of
Directors (excluding the Outside Director accused of such misconduct)
determines an Optionee has committed an act of embezzlement, fraud, dishonesty,
nonpayment of an obligation owed to the Company, breach of fiduciary duty or
deliberate disregard of the Company rules resulting in loss, damage or injury
to the Company, or if an Optionee makes an unauthorized disclosure of any
Company trade secret or confidential information, engages in any conduct
constituting unfair competition, induces any Company customer to breach a
contract with the Company or induces any principal for whom the Company acts as
agent to terminate such agency relationship, neither the Optionee nor his or
her estate shall be entitled to exercise any option whatsoever. In making such
determination, the Board of Directors (excluding the Outside Director accused
of such misconduct) shall act fairly and shall give the Optionee an opportunity
to appear and present evidence on Optionee's behalf at a hearing before the
Board or a committee of the Board.
5. Eligibility. Options may be granted only to Outside
Directors. All Options shall be automatically granted in accordance with the
terms set forth in Section 4(b) hereof. An Outside Director who has been
granted an Option may, if he or she is otherwise eligible, be granted an
additional Option or Options in accordance with such provisions.
The Plan shall not confer upon any Optionee any right with
respect to continuation of service as a Director or nomination to serve as a
Director, nor shall it interfere in any way with any rights which the Director
or the Company may have to terminate his or her directorship at any time.
6. Term of Plan; Effective Date. The Plan shall become effective
on the date of its adoption by the Board of Directors of the Company. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 13 of the Plan.
7. Term of Option. The term of each Option shall be ten (10)
years from the date of grant thereof.
8. Exercise Price and Consideration.
(a) Exercise Price. The per Share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be 100% of the fair
market value per Share on the date of grant of the Option.
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<PAGE> 5
(b) Fair Market Value. The fair market value shall be
determined by the Board in its discretion; provided, however, that where there
is a public market for the Common Stock, the fair market value per Share shall
be the mean of the bid and asked prices of the Common Stock in the
over-the-counter market on the date of grant, as reported in The Wall Street
Journal (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation ("NASDAQ" System) or, in
the event the Common Stock is traded on the NASDAQ National Market or listed on
a stock exchange, the fair market value per Share shall be the closing price on
such system or exchange on the date of grant of the Option, as reported in The
Wall Street Journal. With respect to any Options granted hereunder
concurrently with the initial effectiveness of the Plan, the fair market value
shall be equal to the initial public offering price of the Company's Common
Stock as set forth on the cover page of the prospectus relating to such initial
public offering.
(c) Form of Consideration. The consideration to be paid
for the Shares to be issued upon exercise of an Option shall consist entirely
of cash, check, other Shares of Common Stock having a fair market value on the
date of surrender equal to the aggregate exercise price of the Shares as to
which said Option shall be exercised (which, if acquired from the Company,
shall have been held for at least six months), or any combination of such
methods of payment and/or any other consideration or method of payment as shall
be permitted under applicable corporate law.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times as are set forth in
Section 4(b) hereof; provided, however, that no Options shall be exercisable
prior to shareholder approval of the Plan in accordance with Section 17 hereof
has been obtained.
An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed to be exercised when
written notice of such exercise has been given to the Company in accordance
with the terms of the Option by the person entitled to exercise the Option and
full payment for the Shares with respect to which the Option is exercised has
been received by the Company. Full payment may consist of any consideration
and method of payment allowable under Section 8(c) of the Plan. Until the
issuance (as evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company) of the stock certificate
evidencing such Shares, no right to vote or receive dividends or any other
rights as a shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. A share certificate for the number
of Shares so acquired shall be issued to the Optionee as soon as practicable
after exercise of the Option. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as
to which the Option is exercised.
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<PAGE> 6
(b) Termination of Status as a Director. If an Outside
Director ceases to serve as a Director, he or she may, but only within ninety
(90) days (or such other period of time not exceeding six (6) months as is
determined by the Board) after the date he or she ceases to be a Director of
the Company, exercise his or her Option to the extent that he or she was
entitled to exercise it at the date of such termination. Notwithstanding the
foregoing, in no event may the Option be exercised after its term set forth in
Section 7 has expired. To the extent that such Outside Director was not
entitled to exercise an Option at the date of such termination, or does not
exercise such Option (which he or she was entitled to exercise) within the time
specified herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding Section 9(b)
above, in the event a Director is unable to continue his or her service as a
Director with the Company as a result of his or her total and permanent
disability (as defined in Section 22(e)(3) of the Internal Revenue Code), he or
she may, but only within six (6) months (or such other period of time not
exceeding twelve (12) months as is determined by the Board) from the date of
such termination, exercise his or her Option to the extent he or she was
entitled to exercise it at the date of such termination. Notwithstanding the
foregoing, in no event may the Option be exercised after its term set forth in
Section 7 has expired. To the extent that he or she was not entitled to
exercise the Option at the date of termination, or if he or she does not
exercise such Option (which he or she was entitled to exercise) within the time
specified herein, the Option shall terminate.
(d) Death of Optionee. In the event of the death of an
Optionee:
(i) During the term of the Option who is, at the
time of his or her death, a Director of the Company and who shall have been in
Continuous Status as a Director since the date of grant of the Option, the
Option may be exercised, at any time within six (6) months (or such lesser
period of time as is determined by the Board) following the date of death, by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise that would have accrued had the Optionee continued living and remained
in Continuous Status as Director for six (6) months (or such lesser period of
time as is determined by the Board) after the date of death. Notwithstanding
the foregoing, in no event may the Option be exercised after its term set forth
in Section 7 has expired.
(ii) Within three (3) months (or such lesser
period of time as is determined by the Board) after the termination of
Continuous Status as a Director, the Option may be exercised, at any time
within six (6) months following the date of death, by the Optionee's estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent of the right to exercise that had accrued
at the date of termination. Notwithstanding the foregoing, in no event may the
option be exercised after its term set forth in Section 7 has expired.
(e) Conditions upon Exercise. Notwithstanding the
foregoing, if the Company is an S Corporation at the time when an Optionee
intends to exercise an Option:
(i) the Option will not be exercisable if the
purchase of the Optioned Stock would cause the 35 shareholder limit of Section
1361 of the Code to be exceeded; and
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<PAGE> 7
(ii) if the exercise is not prohibited by paragraph
(i) above, the Optionee shall be required, as a condition to such exercise, to
sign the Buy - Sell Agreement dated October 31, 1987, as amended, among the
shareholders of the Company.
10. Nontransferability of Options. The Option may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution. The designation
of a beneficiary by an Optionee does not constitute a transfer. An Option may
be exercised during the lifetime of an Optionee only by the Optionee or a
transferee permitted by this Section.
11. Adjustments Upon Changes in Capitalization or Corporate
Transactions.
(a) Adjustment. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an Option.
(b) Change of Ownership. In the event of (i) a
dissolution or liquidation of the Company, (ii) a sale of all or substantially
all of the Company's assets, (iii) a merger or consolidation in which the
Company is not the surviving corporation, or (iv) any other capital
reorganization in which more than fifty percent (50%) of the shares of the
Company entitled to vote are exchanged, the Company shall give to the Outside
Director, at the time of adoption of the plan for liquidation, dissolution,
sale, merger, consolidation or reorganization, either a reasonable time
thereafter within which to exercise the Option, prior to the effectiveness of
such liquidation, dissolution, sale, merger, consolidation or reorganization,
at the end of which time the Option shall terminate, or the right to exercise
the Option (or receive a substitute option with comparable terms) as to an
equivalent number of shares of stock of the corporation succeeding the Company
or acquiring its business by reason of such liquidation, dissolution, sale,
merger, consolidation or reorganization.
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<PAGE> 8
12. Time of Granting Options. The date of grant of an Option
shall, for all purposes, be the date determined in accordance with Section 4(b)
hereof. Notice of the determination shall be given to each Outside Director to
whom an Option is so granted within a reasonable time after the date of such
grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable; provided that, to the extent necessary and desirable to comply with
Rule 16b-3 under the Exchange Act (or any other applicable law or regulation),
the Company shall obtain approval of the shareholders of the Company to Plan
amendments to the extent and in the manner required by such law or regulation.
Notwithstanding the foregoing, the provisions set forth in Section 4 of this
Plan (and any other Sections of this Plan that affect the formula award terms
required to be specified in this Plan by Rule 16b-3) shall not be amended more
than once every six months, other than to comport with changes in the Code, the
Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder.
(b) Effect of Amendment or Termination. Any such
amendment or termination of the Plan that would impair the rights of any
Optionee shall not affect Options already granted to such Optionee and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee
and the Board, which agreement must be in writing and signed by the Optionee
and the Company.
14. Conditions Upon Issuance of Shares.
(a) Compliance. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933,
as amended, the Exchange Act, the rules and regulations promulgated thereunder,
state securities laws, and the requirements of any stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
(b) Condition to Exercise. As a condition to the
exercise of an Option, the Company may require the person exercising such
Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares, if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
(c) No Liability. Inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
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<PAGE> 9
15. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
16. Option Agreement. Options shall be evidenced by written
option agreements in such form as the Board shall approve.
17. Shareholder Approval. Continuance of the Plan shall be
subject to approval by the shareholders of the Company at or prior to the first
annual meeting of shareholders held subsequent to the granting of an Option
hereunder. If such shareholder approval is obtained at a duly held
shareholders' meeting, it may be obtained by the affirmative vote of the
holders of a majority of the outstanding shares of the Company present or
represented and entitled to vote thereon. If such shareholder approval is
obtained by written consent, it may be obtained by the written consent of the
holders of a majority of the outstanding shares of the Company. Options may be
granted, but not exercised, before such shareholder approval. If the
shareholders fail to approve this Plan within the required time period, any
Options granted under this Plan shall be void, and no additional options shall
be granted.
18. Additional Restrictions of Rule 16b-3. The terms and
conditions of Options granted hereunder shall comply with the applicable
provisions of Rule 16b-3. This Plan and the Options granted hereunder shall be
deemed to contain such additional conditions and restrictions as may be
required for this Plan to qualify as a "formula plan" under Rule 16b-3, as then
applicable to the Company, and to qualify for the maximum exemptions from
Section 16 of the Exchange Act with respect to Plan transactions.
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<PAGE> 10
BUSINESS RESOURCE GROUP
1995 DIRECTORS' STOCK OPTION PLAN
DIRECTOR NONSTATUTORY STOCK OPTION AGREEMENT
Optionee: [OPTIONEE]
Address: [STREET ADDRESS]
[CITY ADDRESS]
Total Shares Subject to Option: [SHARES]
Exercise Price Per Share: [PRICE PER SHARE]
Date of Grant: [GRANT DATE]
Expiration Date: [EXPIRATION DATE]
Type of Stock Option: Nonstatutory Stock Option
1. Grant of Option. Business Resource Group (the "Company"), a
California corporation, hereby grants to the Optionee named above ("Optionee")
an option (the "Option") to purchase a total of up to [SHARES SPELLED OUT]
([SHARES]) shares of Common Stock of the Company (the "Shares") at the exercise
price per share set forth above (the "Exercise Price"), subject to all of the
terms and conditions of this Director Nonstatutory Stock Option Agreement
("Agreement") and the Company's 1995 Directors' Stock Option Plan (the "Plan").
The terms defined in the Plan shall have the same defined meanings herein.
A. Nature of the Option. This Option is a nonstatutory
stock option and is not intended to qualify for any special tax benefits to the
Optionee.
B. Exercise Price. The exercise price is [PRICE PER
SHARE] for each share of Common Stock, which is 100% of the Fair Market Value
of the Common Stock as determined on the date of grant of this Option.
2. Exercise Period of Option. Subject to the terms and
conditions of the Plan and this Grant, this Option shall become exercisable as
follows:
[VESTING SCHEDULE]
3. Restrictions on Exercise. Exercise of this Option is subject
to the following limitations:
A. This Option may not be exercised unless such exercise
is in compliance with the Securities Act of 1933, as amended, and all
applicable state securities laws, as they are in effect on the date of
exercise.
<PAGE> 11
B. If, at the time of the exercise of this Option, the
Optionee is subject to Section 16(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), then the Optionee must comply with Rule 16b-3
under the Exchange Act and such additional conditions or restrictions as may be
required thereunder to qualify for the maximum exemption from Section 16 of the
Exchange Act with respect to Plan transactions.
4. Termination of Status as a Director. If an Outside Director
ceases to serve as a Director for any reason other than death or disability, he
or she may, but only within ninety (90) days after the date he or she ceases to
be a Director of the Company, exercise his or her Option to the extent that he
or she was entitled to exercise it at the date of such termination. To the
extent that he or she was not entitled to exercise an Option at the date of
such termination, or if he or she does not exercise such Option (which he or
she was entitled to exercise) within the time specified herein, the Option
shall terminate.
5. Disability of Director. Notwithstanding Section 4 above, in
the event an Outside Director is unable to continue his or her service as a
Director with the Company as a result of total and permanent disability (as
defined in Section 22(e)(3) of the Code), he or she may, but only within six
(6) months from the date of termination of such service (but in no event later
than the date of expiration of the term of this Option as set forth in the
Notice of Stock Option Grant), exercise the Option to the extent otherwise so
entitled at the date of such termination. To the extent that he or she was not
entitled to exercise the Option at the date of termination, or if he or she
does not exercise such Option (to the extent otherwise so entitled) within the
time specified in this Agreement, the Option shall terminate.
6. Death of Director. Notwithstanding Section 5 above, in the
event of the death an Outside Director while serving as a Director of the
Company or within three (3) months of terminating such service, the Option may
be exercised, at any time within six (6) months following the date of death
(but in no event later than the date of expiration of the term of this Option
as set forth in the Notice of Stock Option Grant), by Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance
to the extent the Optionee was entitled to exercise such Option on the date of
death, provided, however, that if the Director dies while serving as a
Director, the Option will be exercisable to the extent of the right to exercise
that would have accrued had the Director continued living and serving as a
Director for six (6) months after the date of death.
7. Manner of Exercise.
A. This Option shall be exercisable by delivery to the
Company of an executed written Director Stock Option Exercise Notice and
Agreement in the form attached hereto as Exhibit A, or in such other form as
may be approved by the Company, which shall set forth Optionee's election to
exercise this Option, the number of Shares being purchased, any restrictions
imposed on the Shares and such other representations and agreements regarding
Optionee's investment intent and access to information as may be required by
the Company to comply with applicable securities laws.
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<PAGE> 12
B. The Director Stock Option Exercise Notice and
Agreement shall be accompanied by full payment of the Exercise Price for the
Shares being purchased (i) in cash, (ii) by check, (iii) by delivery of other
shares of Common Stock having a fair market value on the date of surrender
equal to the aggregate exercise price of the Shares being purchased (which, if
acquired from the Company, shall have been held for at least six months) or
(iv) by any combination of the foregoing methods of payment.
C. Prior to the issuance of the Shares upon exercise of
this Option, Optionee must pay or make adequate provision for any applicable
federal or state withholding obligations of the Company.
D. Provided that such notice and payment are in form and
substance satisfactory to counsel for the Company, the Company shall issue the
Shares registered in the name of Optionee or Optionee's legal representative.
8. Compliance with Laws and Regulations. The issuance and
transfer of Shares shall be subject to compliance by the Company and the
Optionee with all applicable requirements of federal and state securities laws
and with all applicable requirements of any stock exchange on which the
Company's Common Stock may be listed at the time of such issuance or transfer.
Optionee understands that the Company is under no obligation to register or
qualify the Shares with the Securities and Exchange Commission, any state
securities commission or any stock exchange to effect such compliance.
9. Nontransferability of Option. This Option may not be
transferred in any manner other than by will or by the laws of descent and
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this option shall be binding upon the executors,
administrators, successors and assigns of the Optionee.
10. Federal Tax Consequences. Set forth below is a brief summary
as of the date of this Option of some of the federal tax consequences of
exercise of this Option and disposition of the Shares. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
OPTIONEE SHOULD CONSULT HIS OR HER OWN TAX ADVISER BEFORE EXERCISING THIS
OPTION OR DISPOSING OF THE SHARES. THIS SUMMARY DOES NOT DISCUSS STATE OR
LOCAL TAX CONSEQUENCES OF EXERCISE OF THIS OPTION AND DISPOSITION OF THE
SHARES.
A. Taxation Upon Exercise of Option. Optionee
understands that, upon exercise of this Option, he or she will recognize income
for tax purposes in an amount equal to the excess of the then fair market value
of the Shares purchased over the exercise price paid for such Shares. Since
the Optionee is likely to be subject to Section 16(b) of the Securities
Exchange Act of 1934, as amended, the measurement and timing of such income may
be deferred, and the Optionee is advised to contact a tax adviser concerning
the desirability of filing an 83(b) election in connection with the exercise of
the Option. Upon a resale of such Shares by the Optionee, any difference
between the sale price and the exercise price of the Shares, to the
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<PAGE> 13
extent not included in income as described above, will be treated as capital
gain or loss, which will be long-term if the shares have been held for more
than one year.
11. Interpretation. Any dispute regarding the interpretation of
this agreement shall be submitted by Optionee or the Company forthwith to the
Company's Board of Directors or the committee thereof that administers the
Plan, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Board or committee shall be final and
binding on the Company and on Optionee.
12. Entire Agreement. The Plan and the Director Stock Option
Exercise Notice and Agreement attached as Exhibit A are incorporated herein by
reference. This Grant, the Plan and the Director Stock Option Exercise Notice
and Agreement constitute the entire agreement of the parties regarding the
Option and supersede all prior undertakings and agreements with respect to the
subject matter hereof.
BUSINESS RESOURCE GROUP
By:
-----------------------------------
Its:
---------------------------------
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<PAGE> 14
ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents
that Optionee has read and understands the terms and provisions thereof, and
accepts this Option subject to all the terms and conditions of the Plan and
this Grant. Optionee acknowledges that there may be adverse tax consequences
upon exercise of this Option or disposition of the Shares and that Optionee
should consult a tax adviser prior to such exercise or disposition.
-----------------------------------------
[OPTIONEE]
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<PAGE> 15
EXHIBIT A
DIRECTOR NONSTATUTORY STOCK OPTION EXERCISE NOTICE AND AGREEMENT
Business Resource Group
2150 North First Street
Suite 101
San Jose, CA 95131
Attention: Chief Financial Officer
1. Exercise of Option. The undersigned ("Optionee") hereby
elects to exercise Optionee's option to purchase ______ shares of the Common
Stock (the "Shares") of Business Resource Group (the "Company") under and
pursuant to the Company's 1995 Directors' Stock Option Plan and the Director
Nonstatutory Stock Option Agreement dated GrantDate~ (the "Grant Agreement").
2. Representations of Optionee. Optionee acknowledges that
Optionee has received, read and understood the Grant Agreement.
3. Federal Restrictions on Transfer. Optionee understands that
the Shares must be held indefinitely unless they are registered under the
Securities Act of 1933, as amended (the "1933 Act") or unless an exemption from
such registration is available and that the certificate(s) representing the
Shares may bear a legend to that effect. Optionee understands that the Company
is under no obligation to register the Shares and that an exemption may not be
available or may not permit Optionee to transfer Shares in the amounts or at
the times proposed by Optionee.
4. Tax Consequences. Optionee understands that Optionee may
suffer adverse tax consequences as a result of Optionee's purchase or
disposition of the Shares. Optionee represents that Optionee has consulted
with any tax consultant(s) Optionee deems advisable in connection with the
purchase or disposition of the Shares and that Optionee is not relying on the
Company for any tax advice.
5. Delivery of Payment. Optionee herewith delivers to the
Company the aggregate purchase price for the Shares that Optionee has elected
to purchase and has made provision for the payment of any federal or state
withholding taxes required to be paid or withheld by the Company.
<PAGE> 16
6. Entire Agreement. The Grant Agreement is incorporated herein
by reference. This Agreement and the Grant Agreement constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter
hereof. This Agreement and the Grant Agreement are governed by California law
except for that body of law pertaining to conflict of laws.
Submitted by: Accepted by:
OPTIONEE: BUSINESS RESOURCE GROUP
By:
- ----------------------------- --------------------------------
[OPTIONEE]
Its:_______________________________
Address: Address:
____________________________________ [STREET ADDRESS]
____________________________________ [CITY ADDRESS]
Dated:_____________________________ Dated:_____________________________
-2-
<PAGE> 1
EXHIBIT 5.1
March 18, 1997
Business Resource Group
2150 North First Street
Suite 101
San Jose, CA 95131
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about March 18, 1997 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of (i) 500,000 additional shares of your
Common Stock (the "Shares") reserved for issuance under the 1995 Stock Option
Plan, as amended (the "Option Plan") and (ii) 75,000 additional Shares reserved
for issuance under the 1995 Directors' Stock Option Plan (the "Directors'
Plan"). As your legal counsel, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with
the sale and issuance of the Shares under the Option Plan and Directors' Plan.
It is our opinion that, when issued and sold in the manner referred to
in each of the Option Plan and Directors' Plan and pursuant to the respective
agreements which accompany each grant under the Option Plan and Directors'
Plan, the Shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever it
appears in the Registration Statement and any amendments to it.
Sincerely,
VENTURE LAW GROUP,
A Professional Corporation
