EXHIBIT 4.4
STOCK OPTION AGREEMENT
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AGREEMENT made as of this day of , 19 by and between CAREER
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HORIZONS, INC., a Delaware corporation (the "Company"), and
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(the "Executive") residing at .
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W I T N E S S E T H:
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WHEREAS, the Company desires, in connection with the employment of the
Executive and in accordance with its 1990 Terminal Value Stock Option Plan for
key employees (the "Plan"), to provide the Executive with an opportunity to
acquire Common Stock of the Company, $0.01 par value per share ("Common Stock"),
on favorable terms and thereby increase his proprietary interest in the
continued progress and success of the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
set forth herein and other good and valuable consideration, the Company and the
Executive hereby agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a determination by the
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Board of Directors of the Company (the "Board") made on
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(the "Date of Grant"), the Company, subject to the terms of the Plan and this
Agreement,
hereby confirms that the Executive has been granted, effective June 1, 1990, as
a matter of separate inducement and agreement, and in addition to and not in
lieu of salary or other compensation for services, the right to purchase (the
"Option") an aggregate of ( ) shares of Class A
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Common Stock of the Company on the terms and conditions herein set forth,
subject to adjustment as provided in Section 8 hereof.
2. EXERCISE PRICE. The purchase price of the shares of Common Stock
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covered by the Option (the "Exercise Price") will be $ per share subject to
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adjustment as provided in Section 8 hereof.
3. EXERCISE OF OPTION. The Option shall be exercisable on the terms
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and conditions hereinafter set forth:
(a) Subject to the terms of paragraphs (b) and (c) of this Section 3,
an Option hereby granted may be exercised, in whole or in part, upon the first
to occur of any of the following: (i) a transaction in which the Company is
acquired by reason of a sale or other transfer of all of the issued and
outstanding capital stock of the Company, a sale or other transfer of all or
substantially all of the assets of the Company or a merger or consolidation of
the Company with or into another corporation (any of such transactions is
hereinafter referred to as a "Sale of the Company"), (ii) the
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initial offering of Common Stock pursuant to an underwritten public offering in
a generally recognized securities market (a "Public Offering"), or (iii) June 1,
1995 (each such transaction or date described in clauses (i) through (iii) above
is hereinafter referred to as an "Exercise Event"). The Option granted
hereunder may be exercised contemporaneously with the Exercise Events describe
in clauses (i) and (ii) above, and, with respect to the Exercise Event describe
in clause (iii) above, during the period beginning on the date of such Exercise
Event and ending on the date the Option expires pursuant to Section 4 hereof.
(b) Subject to paragraph (c) of this Section 3, the Executive may
exercise the Option only with respect to the number of shares of Common Stock as
provided in Section 1 hereof multiplied by a fraction, the denominator of which
shall be 14, and the numerator of which shall be that number set forth in the
last column on Schedule A hereto and in the same row as the largest dollar
amount not in excess of the Terminal Value (as hereinafter defined) indicated in
the appropriate column for the period during which the Exercise Event occurs.
For purposes of this Agreement, Terminal Value shall mean (i) in the event of a
Sale of the Company, the total net proceeds (or the fair market value of other
consideration) received by or in respect of the Company in such transaction and
available to holders of the Common Stock and Common Stock
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Equivalents (as hereinafter defined) issued and outstanding on the date of such
transaction; (ii) in the event of a Public Offering, the per share price in such
Public Offering multiplied by the number of shares of Common Stock outstanding
on a fully diluted basis after giving effect to such Public Offering; or (iii)
if no Sale of the Company or Public Offering has occurred prior to June 1, 1995,
the value of the Company, as of June 1, 1995, derived by multiplying the EBITDA
(as hereinafter defined) of the Company for the one year period ending May 31,
1995 by seven, less the face amount of the Company's senior debt, subordinated
debt and preferred stock outstanding, plus cash on hand. For purposes of this
paragraph (b), Common Stock Equivalents shall mean options and warrants to
purchase, and any other securities of the Company convertible into, Common
Stock. For purposes of this paragraph (b), EBITDA shall mean net earnings
determined before taking into account depreciation, interest, amortization,
taxes and the $135,000 annual fee payable to Harvest Ventures, Inc. The
determination of EBITDA and all other factors utilized in computing the number
of shares of Common Stock permitted to be purchased under the Option pursuant to
this Section 3(b), shall be made by the independent public accountants then
auditing the books and records of the Company. Such determinations and
calculations shall be made in accordance with generally accepted accounting
principles applied on a consistent basis,
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and such determinations and calculations by such auditors shall be final and
binding on the parties hereto.
(c) Except as provided below, the Executive need not be in the employ
of the Company or any of its subsidiaries at the time the Exercise Event offers
in order to be eligible to exercise the Option granted hereunder. However,
notwithstanding any other provision of this Agreement to the contrary, if at any
time prior to June 1, 1992, the Executive's employment with the Company or any
of its subsidiaries is terminated for Cause, as defined in Section 8(a) of the
Employment Agreement dated as of the date hereof between the Executive and the
Company, this Option shall be exercisable cumulatively during its term only as
to the following amounts of the number of shares of Common Stock otherwise made
available for purchase under paragraph (b) of this Section 3:
(i) as to of such shares if the Executive's employment
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terminates prior to June 1, 1991;
(ii) as to of such shares if the Executive's employment
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terminates prior to June 1, 1992, and
(iii) as to the total number of such shares if (x) the Executives
employment terminates on or after or (y) a Sale of
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the Company or a Pubic Offering occurs at any time after the date
hereof.
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(d) The Option may be exercised pursuant to the provisions of this
Section 3 by notice and payment to the Company as provided in Sections 10 and 15
hereof.
4. EXPIRATION OF OPTION. This Option, to the extent unexercised, shall
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not be exercisable after the end of the sixth calendar month following the fifth
anniversary of the date hereof, subject to earlier termination or cancellation
as provided in this Agreement or in the Plan. Notwithstanding the above, this
Option, to the extent unexercised, shall be exercisable only contemporaneously
with the occurrence of an Exercise Event described in clauses (i) and (ii) of
Section 3(a) hereof, and if not then exercised this Option shall expire. Upon
the occurrence of an Exercise Event described in clause (iii) of Section 3(a),
this Option shall be exercisable only within the six (6) month period beginning
on the date of such Exercise Event.
5. RIGHTS AS A STOCKHOLDER. The holder of the Option will not have any
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rights to dividends or any other rights of a stockholder of the Company with
respect to any shares of Common Stock subject to the Option until such shares
shall have been issued to him (as evidenced by the appropriate entry on the
books of a duly authorized transfer agent of the Company) provided that the date
of issuance shall not be earlier than the Closing Date (as hereinafter defined)
with respect to such shares pursuant to Section 11 hereof upon purchase of such
shares upon exercise of the Option.
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6. NON-TRANSFERABILITY OF OPTION. The Option will not be transferable
otherwise than by will or by the laws of descent and distribution, and, except
as otherwise provided in Section 7 hereof, the Option may be exercised during
the lifetime of the Executive only by him. More particularly, but without
limiting the generality of the foregoing, the Option may not be assigned,
transferred (except as provided in the next preceding sentence) or otherwise
disposed of, or pledged or hypothecated in any way (whether by operation of law
or otherwise), and shall not be subject to execution, attachment or other
process. Any assignment, transfer, pledge, hypothecation or other disposition
of the Option attempted contrary to the provisions of this Agreement, or any
levy of execution, attachment or other process attempted upon the Option, will
be null and void and without effect. Any attempt to make any such assignment,
transfer, pledge, hypothecation or other disposition of the Option or any
attempt to make any such levy of execution, attachment or other process will
cause the Option to terminate immediately upon the happening of any such event
if the Board, at any time, should, in it sole discretion, so elect, by written
notice to the Executive or to the person or persons then entitled to exercise
the Option under the provisions of Section 7 hereof; provided, however, that any
such termination of the Option under the foregoing provisions of this Section 6
will not prejudice any rights or
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remedies which the Company or any subsidiary thereof may have under this
Agreement or otherwise.
7. EXERCISE UPON THE DEATH OR DISABILITY OF THE EXECUTIVE. If the
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Executive dies or becomes incompetent prior to the date that the Option would
otherwise become exercisable, then such Option may be exercised at the same time
and to the same extent that the Executive would have been entitled to exercise
it under Section 3 hereof (i) in the case of such death, by the estate of the
Executive or the person or persons (including the estate of any such person or
persons who have died) who acquire the right to exercise the Option by bequest
or inheritance and (ii) in the case of such incompetency, by the Executive's
legal representative.
8. ADJUSTMENTS. In the event of a stock dividend, stock split, share
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combination, exchange of shares, recapitalization, merger, consolidation,
acquisition or disposition of property or shares, reorganization, liquidation or
other similar changes or transactions of or by the Company, the Board shall make
(or shall undertake to have the Board of Directors of any corporation which
merges with, or acquires the stock or assets of, the Company make) such
adjustment of the number or class of shares then covered by the Option, or of
the Exercise Price, or both, as it shall deem appropriate to give proper and
equitable affect to such event.
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9. REGISTRATION. The shares subject hereto and issuable upon the
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exercise hereof may not be registered under the Securities Act of 1933, as
amended, and, if required upon the request of counsel to the Company, the
Executive will give a representation as to his investment intent with respect to
such shares of Common Stock prior to their issuance as set forth in paragraph
(b) of Section 10 hereof.
The Company may register or qualify the shares of Common Stock covered
by the Option for sale pursuant to the Securities Act of 1933, as amended, at
any time prior to or after the exercise in whole or in part of the Option.
10. METHOD OF EXERCISE OF OPTION. Subject to the terms and conditions
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of this Agreement, the Option shall be exercisable by notice (an "Exercise
Notice") and payment to the Company in accordance with the procedure prescribed
herein. Each Exercise Notice shall:
(a) State the election to exercise the Option and the number of shares
in respect of which it is being exercised;
(b) Contain a representation and agreement as to investment intent, if
required by counsel to the Company with respect to such shares, in form
satisfactory to counsel for the Company; and
(c) Be signed by the person or persons entitled to exercise the Option
and, if the Option is being exercised by any person or persons other than the
Executive, be accompanied
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by proof, satisfactory to counsel for the Company, of the right of such person
or persons to exercise the Option,
In connection with an Exercise Event described in either clause (i) or
(ii) of Section 3(a) hereof, the Option shall be deemed to be exercised upon
receipt by the Company of the Exercise Notice accompanied by a certified or bank
check, made payable to the order of the Company, in the amount of the full
purchase price of the shares issuable upon exercise of the Option.
In connection with an Exercise Event described in clause (iii) of
Section 3(a) hereof, upon receipt of an Exercise Notice, the Company will
specify, by written notice to the person or persons exercising the Option, a
date and time (such date and time being herein called the "Closing Date") and
place for payment of the full purchase price of such shares. The Closing Date
will be not more than fifteen days from the date the Exercise Notice is received
by the Company unless another date is agreed upon by the Company and the person
or persons exercising the Option or is required upon advice of counsel for the
Company in order to meet the requirements of Section 12 hereof. Payment of the
Exercise Price for any shares in respect of which the Option shall be exercised,
will be made by such person or persons at the place specified by the Company on
or before the Closing Date by delivering to the Company a certified or bank
cashier's check payable to the order of the Company.
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The Option will be deemed to have been exercised with respect to any
particular shares if, and only if, the preceding provisions of this Section 10
and the provisions of Section 11 hereof shall have been complied with, in which
event the Option will be deemed to have been exercised on the date of receipt of
the Exercise Notice by the Company (in connection with an Exercise Event
described in clause (i) or (ii) of Section 3(a) hereof), or on the Closing Date
(in connection with an Exercise Event described in clause (iii) of Section 3(a)
hereof). Anything in this Agreement to the contrary notwithstanding, any
Exercise Notice given pursuant to the provisions of this Section 10 will be void
and of no effect if all the preceding provisions of this Section 10 and the
provisions of Section 11 hereof shall not have been complied with. The
certificate or certificates for shares as to which the Option shall be exercised
will be registered in the name of the person or persons exercising the Option
(or, if the Option is exercised by the Executive and if the Executive so
requests in the Exercise Notice, will be registered in the name of the Executive
and another person jointly, with right of survivorship) and will be delivered on
the Closing Date to the person or persons exercising the Option at the place
specified for the closing, but only upon compliance with all of the provisions
of this Agreement. If the person or persons exercising the Option fails to
accept delivery of and pay for
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all or any part of the number of shares specified in such notice upon tender or
delivery thereof on the Closing Date, such person's or persons' right to
exercise the Option with respect to such undelivered shares may be terminated in
the sole discretion of the Board. The Option may be exercised only with respect
to full shares of Common Stock.
11. Approval of Counsel. The exercise of the Option and the issuance
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and delivery of shares of Common Stock pursuant thereto shall be subject to
approval by the Company's counsel of all legal matters in connection therewith,
including compliance with the requirements of the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, and the requirements of any stock exchange upon which
the Common Stock may then be listed.
12. Resale of Common Stock. Upon any sale or transfer of the Common
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Stock purchased upon exercise of the Option, the Executive shall deliver to the
Company an opinion of counsel satisfactory to the Company to the effect that
either (i) the Common Stock to be sold or transferred has been registered under
the Securities Act of 1933, as amended, and that there is in effect a current
prospectus meeting the requirements of Subsection 10(a) of said Act which is
being or will be delivered to the purchaser or transferee at or prior to
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the time of delivery of the certificates evidencing the Common Stock to be sold
or transferred, or (ii) such Common Stock may then be sold without violating
Section 5 of said Act.
The Common Stock issued upon exercise of the Option shall bear the
following legend if required by counsel for the Company:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS,
IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT
REQUIRED.
The shares of Common Stock issuable upon the exercise hereof shall be
subject to the terms and provisions of that certain Stockholders' Agreement,
dated as of May 31, 1990, by and among the Company and the persons listed on
Exhibit A thereto but only during such period such Stockholders' Agreement is in
full force and effect, and to the condition that the Executive execute and
deliver to the Company a counterpart of such Stockholders' Agreement.
13. Reservation of Shares. The Company shall at all times during the
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term of the Option reserve and keep available such number of shares of the class
of stock then subject to the Option as will be sufficient to satisfy the
requirements of this Agreement.
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14. Limitation of Action. The Executive and the Company each
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acknowledge that every right of action accruing to him or it, as the case may
be, and arising out of or in connection with this Agreement against the Company
or a subsidiary thereof, on the one hand, or against the Executive, on the other
hand, will, irrespective of the place where an action may be brought, cease and
be barred by the expiration of three years from the date of the act or omission
in respect of which such right of action arises.
15. Notices. Each notice relating to this Agreement shall be in
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writing and delivered in person or by certified mail to the proper address. All
notices to the Company shall be addressed to it at 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, attention: Secretary. All notices to the Executive or other
person or persons then entitled to exercise the Option shall be addressed to the
Executive or such other person or persons at the Executive's address above
specified. Anyone to whom a notice may be given under this Agreement may
designate a new address by written notice to that effect delivered to the other
party hereto.
16. Benefits of Agreement. This Agreement shall inure to the benefit
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of and be binding upon each successor and assign of the Company. All
obligations imposed upon the Executive and all rights granted to the Company
under this
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Agreement shall be binding upon the Executive's heirs, legal representatives and
successors.
17. Severability. In the event that any one or more provisions of
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this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
18. Governing Law. This Agreement will be construed and governed in
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accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
in its name by its President or Vice President and its corporate seal to be
hereunto affixed and attested by its Secretary and the Executive has hereunto
set his hand all as of the date, month and year first above written.
CAREER HORIZONS, INC.
ATTEST: By:
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