MODIS PROFESSIONAL SERVICES, INC.
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS 1
ARTICLE II
THE PLANS
2.1 Name 5
2.2 Purpose 5
2.3 Effective Time 5
ARTICLE III
PARTICIPANTS 5
ARTICLE IV
ADMINISTRATION 5
4.1 Duties and Powers of the Committee 5
4.2 Interpretation; Rules 6
4.3 No Liability 6
4.4 Majority Rule 6
4.5 Company Assistance 6
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN 7
5.1 Limitations 7
5.2 Anti-dilution 7
5.3 Per-Employee Limitation 9
ARTICLE VI
OPTIONS 9
6.1 Types of Options Granted 9
6.2 Option Grant and Agreement 9
6.3 Optionee Limitations 9
6.4 $100,000 Limitation 10
6.5 Exercise Price 10
6.6 Exercise Period 10
6.7 Option Exercise 10
6.8 Reload Options 12
6.9 Nonassignability and Nontransferability of Options 12
6.10 Termination of Employment or Service 12
6.11 Employment Rights 13
6.12 Certain Successor Options 13
6.13 Effect of Change of Control 13
ARTICLE VII
RESTRICTED STOCK 13
7.1 Awards of Restricted Stock 13
7.2 Non-Transferability 14
7.3 Lapse of Restrictions 14
7.4 Termination of Employment 14
7.5 Treatment of Dividends 14
7.6 Delivery of Shares 14
ARTICLE VIII
STOCK CERTIFICATES 15
ARTICLE IX
TERMINATION AND AMENDMENT 15
9.1 Termination and Amendment 15
9.2 Effect on Grantee's Rights 16
ARTICLE X
RELATIONSHIP TO OTHER COMPENSATION PLANS 16
ARTICLE XI
MISCELLANEOUS 16
11.1 Replacement or Amended Grants 16
11.2 Forfeiture for Competition 16
11.3 Plan Binding on Successors 16
11.4 Singular, Plural; Gender 17
11.5 Headings, etc., No Part of Plan 17
11.6 Interpretation 17
MODIS PROFESSIONAL SERVICES, INC.
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following meanings unless the
context clearly indicates to the contrary:
"Award" shall mean a grant of Restricted Stock.
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean theft or destruction of property of the Company, a Parent, or
a Subsidiary, disregard of Company rules or policies, or conduct evincing
willful or wanton disregard of the interests of the Company. Such determination
shall be made by the Committee based on information presented by the Company and
the Employee and shall be final and binding on all parties hereto.
"Change in Control" shall mean the occurrence of either of the following events:
(i) A change in the composition of the Board of Directors as a result
of which fewer than one-half of the incumbent directors are
directors who either:
(A) Had been directors of the Company 24 months prior to such
change; or
(B) Were elected, or nominated for election, to the Board of Directors
with the affirmative votes of at least a majority of the directors who
had been directors of the Company 24 months prior to such change
and who were still in office at the time of the election or
nomination; or
(ii) Any "person" (as such term is used in sections 13(d) and 14(d) of
the Exchange Act), other than any person who is a shareholder of
the Company on or before the effective date of the Plan, by the
acquisition or aggregation of Securities is or becomes the
beneficial owner, directly or indirectly, of securities of the
Company representing 50 percent or more of the combined voting
power of the Company's then outstanding securities ordinarily (and
apart from rights accruing under special circumstances) having the
right to vote at elections of directors (the "Base Capital Stock");
except that any change in the relative beneficial ownership of the
Company's securities by any person resulting solely from a
reduction in the aggregate number of outstanding shares of Base
Capital Stock, and any decrease thereafter in such person's
ownership of securities, shall be disregarded until such person
increases in any manner, directly or indirectly, such person's
beneficial ownership of any securities of the Company.
"Code" shall mean the United States Internal Revenue Code of 1986, including
effective date and transition rules (whether or not codified). Any reference
herein to a specific section of the Code shall be deemed to include a reference
to any corresponding provision of future law.
"Committee" shall mean a committee of at least two directors appointed from time
to time by the Board, having the duties and authority set forth herein in
addition to any other authority granted by the Board; provided, however, that
with respect to any Options or Awards granted to an individual who is also a
Section 16 Insider, the Committee shall consist of at least two Directors (who
need not be members of the Committee with respect to Options or Awards granted
to any other individuals) who are both Non-employee Directors within the meaning
of Rule 16b-3 of the Exchange Act and Outside Directors within the meaning of
Code Section 162(m), and all authority and discretion shall be exercised by such
Directors, and references herein to the "Committee" shall mean such Directors
insofar as any actions or determination of the Committee shall relate to or
affect Options or Awards made to or held by any Section 16 Insider. At any time
that the Board shall not have appointed a committee as described above, any
reference herein to the Committee shall mean a reference to the Board.
"Company" shall mean Modis Professional Services, Inc.
"Director" shall mean a member of the Board and any person who is an advisory or
honorary director of the Company if such person is considered a director for the
purposes of Section 16 of the Exchange Act, as determined by reference to such
Section 16 and to the rules, regulations, judicial decisions, and interpretative
or "no-action" positions with respect thereto of the Securities and Exchange
Commission, as the same may be in effect or set forth from time to time.
"Employee" shall mean an employee of the Employer.
"Employer" shall mean the corporation that employs a Grantee.
"Exchange Act" shall mean the Securities Exchange Act of 1934. Any reference
herein to a specific section of the Exchange Act shall be deemed to include a
reference to any corresponding provision of future law.
"Exercise Price" shall mean the price at which an Optionee may purchase a share
of Stock under a Stock Option Agreement.
"Fair Market Value" on any date shall mean (i) the closing sales price of the
Stock, regular way, on such date on the national securities exchange having the
greatest volume of trading in the Stock during the thirty-day period preceding
the day the value is to be determined or, if such exchange was not open for
trading on such date, the next preceding date on which it was open; (ii) if the
Stock is not traded on any national securities exchange, the average of the
closing high bid and low asked prices of the Stock on the over-the counter
market on the day such value is to be determined, or in the absence of closing
bids on such day, the closing bids on the next preceding day on which there were
bids; or (iii) if the Stock also is not traded on the over-the-counter market,
the fair market value as determined in good faith by the Board or the Committee
based on such relevant facts as may be available to the Board, which may include
opinions of independent experts, the price at which recent sales have been made,
the book value of the Stock, and the Company's current and future earnings.
"Grantee" shall mean a person who is an Optionee or a person who has received
an Award of Restricted Stock.
"Incentive Stock Option" shall mean an option to purchase any stock of the
Company, which complies with and is subject to the terms, limitations and
conditions of Section 422 of the Code and any regulations promulgated with
respect thereto.
"Officer" shall mean a person who constitutes an officer of the Company for the
purposes of Section 16 of the Exchange Act, as determined by reference to such
Section 16 and to the rules, regulations, judicial decisions, and interpretative
or "no-action" positions with respect thereto of the Securities and Exchange
Commission, as the same may be in effect or set forth from time to time.
"Option" shall mean an option, whether or not an Incentive Stock Option, to
purchase Stock granted pursuant to the provisions of Article VI hereof.
"Optionee" shall mean a person to whom an Option has been granted hereunder.
"Parent" shall mean any corporation (other than the Employer) in an unbroken
chain of corporations ending with the Employer if, at the time of the grant (or
modification) of the Option, each of the corporations other than the Employer
owns stock possessing 50 percent or more of the total combined voting power of
the classes of stock in one of the other corporations in such chain.
"Permanent and Total Disability" shall have the same mean as given to that term
by Code Section 22(e)(3) and any regulations or rulings promulgated thereunder.
"Plan" shall mean the Modis Professional Services, Inc. Amended and Restated
1995 Stock Option Plan, the terms of which are set forth herein.
"Purchasable" shall refer to Stock which may be purchased by an Optionee under
the terms of this Plan on or after a certain date specified in the applicable
Stock Option Agreement.
"Qualified Domestic Relations Order" shall have the meaning set forth in the
Code or in the Employee Retirement Income Security Act of 1974, or the rules
and regulations promulgated under the Code or such Act.
"Reload Option" shall have the meaning set forth in Section 6.8 hereof.
"Restricted Stock" shall mean Stock issued, subject to restrictions, to a
Grantee pursuant to Article VII hereof.
"Restriction Agreement" shall mean the agreement setting forth the terms of an
Award, and executed by a Grantee as provided in Section 7.1 hereof.
"Section 16 Insider" shall mean any person who is subject to the provisions of
Section 16 of the Exchange Act, as provided in Rule 16a-2 promulgated pursuant
to the Exchange Act.
"Stock" shall mean the Common Stock, par value $.01 per share, of the Company
or, in the event that the Outstanding shares of Stock are hereafter changed into
or exchanged for shares of a different stock or securities of the Company or
some other entity, such other stock or securities.
"Stock Option Agreement" shall mean an agreement between the Company and an
Optionee under which the Optionee may purchase Stock hereunder, a sample form
of which is attached hereto as Exhibit A (which form may be varied by the
Committee in granting an Option).
"Subsidiary" shall mean any corporation (other than the Employer) in an unbroken
chain of corporations beginning with the Employer if, at the time of the grant
(or modification) of the Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50 percent or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
ARTICLE II
THE PLAN
2.1 Name This Plan shall be known as the Modis Professional Services, Inc.
Amended and Restated 1995 Stock Option Plan.
2.2 Purpose. The purpose of the Plan is to advance the interests of the Company,
its Subsidiaries and its shareholders by affording certain employees (including
employees who are also Directors) of the Company and its Subsidiaries an
opportunity to acquire or increase their proprietary interests in the Company.
The objective of the issuance of the Options and Awards is to promote the growth
and profitability of the Company and its Subsidiaries because the Grantees will
be provided with an additional incentive to achieve the Company's objectives
through participation in its success and growth and by encouraging their
continued association with or service to the Company.
2.3 Effective Date. The Plan shall become effective on August 24, 1995;
provided, however, that the Plan shall terminate, and all Options or Awards
theretofore granted or awarded shall become void and may not be exercised, on
August 24, 1996, if the shareholders of the Company shall not by that date have
approved the Plan's adoption.
ARTICLE III
PARTICIPANTS
The class of persons eligible to participate in the Plan shall consist of all
persons whose participation in the Plan the Committee determines to be in the
best interests of the Company which shall include all employees (including
employees who are also Directors), including but not limited to, executive
personnel of the Company or any Subsidiary.
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Committee. The Plan shall be administered by the
Committee. The Committee shall select one of its members as its Chairman and
shall hold its meetings at such times and places as it may determine. The
Committee shall keep minutes of its meetings and shall make such rules and
regulations for the conduct of its business as it may deem necessary. The
Committee shall have the power to act by unanimous written consent in lieu of a
meeting, and to meet telephonically. In administering the Plan, the Committee's
actions and determinations shall be binding on all interested parties. The
Committee shall have the power to grant Options or Awards in accordance with the
provisions of the Plan and may grant Options and Awards singly, in combination,
or in tandem. Subject to the provisions of the Plan, the Committee shall have
the discretion and authority to determine those individuals to whom Options or
Awards will be granted and whether such Options shall be accompanied by the
right to receive Reload Options, the number of shares of Stock subject to each
Option or Award, such other matters as are specified herein, and any other terms
and conditions of a Stock Option Agreement or Restriction Agreement. The
Committee shall also have the discretion and authority to delegate to any
Officer its powers to grant Options or Awards under the Plan to any person who
is an employee of the Company but not an Officer or Director. To the extent not
inconsistent with the provisions of the Plan, the Committee may give a Grantee
an election to surrender an Option or Award in exchange for the grant of a new
Option or Award, and shall have the authority to amend or modify an outstanding
Stock Option Agreement or Restriction Agreement, or to waive any provision
thereof, provided that the Grantee consents to such action.
4.2 Interpretation; Rules. Subject to the express provisions of the Plan, the
Committee also shall have complete authority to interpret the Plan, to
prescribe, amend, and rescind rules and regulations relating to it, to determine
the details and provisions of each Stock Option Agreement, and to make all other
determinations necessary or advisable for the administration of the Plan,
including, without limitation, the amending or altering of the Plan and any
Options or Awards granted hereunder as may be required to comply with or to
conform to any federal, state, or local laws or regulations.
4.3 No Liability. Neither any member of the Board nor any member of the
Committee shall be liable to any person for any act or determination made in
good faith with respect to the
Plan or any Option or Award granted hereunder.
4.4 Majority Rule. A majority of the members of the Committee shall constitute a
quorum, and any action taken by a majority at a meeting at which a quorum is
present, or any action taken without a meeting evidenced by a writing executed
by all the members of the Committee, shall constitute the action of the
Committee.
4.5 Company Assistance. The Company shall supply full and timely information to
the Committee on all matters relating to eligible persons, their employment,
death, retirement, disability, or other termination of employment, and such
other pertinent facts as the Committee may require. The Company shall furnish
the Committee with such clerical and other assistance as is necessary in the
performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 Limitations. Subject to any anti-dilution adjustment pursuant to the
provisions of Section 5.2 hereof, for the Company's 1998 fiscal year, the
maximum number of shares of stock that may be issued hereunder shall be
20,000,000. Notwithstanding the foregoing, the aggregate number of shares of
Stock that may be issued upon exercise of Incentive Stock Options shall not
exceed 20,000,000 Shares (subject to any anti-dilution adjustment pursuant to
the provisions of Section 5.2 hereof). Any or all shares of Stock subject to the
Plan may be issued in any combination of Incentive Stock Options, Non-Incentive
Stock Options or Restricted Stock. Shares subject to an Option issued as an
Award may be either authorized and unissued shares or shares issued and later
acquired by the Company. The shares covered by any unexercised portion of an
Option that is terminated for any reason (except as set forth in the following
paragraph), or any forfeited portion of an Award, may then be optioned or
awarded under the Plan, and such shares shall not be considered as having been
optioned or issued in computing the number of shares of Stock remaining
available for option or award hereunder.
If Options are issued in respect of options to acquire stock of any entity
acquired, by merger or otherwise, by the Company (or any Subsidiary of the
Company), to the extent that such issuance shall not be inconsistent with the
terms, limitations and conditions of Code section 422 or Rule 16b-3 under the
Exchange Act, the aggregate number of shares of Stock for which Options may be
granted hereunder shall automatically be increased by the number of shares
subject to the Options so issued; provided, however, that the aggregate number
of shares of Stock for which Options may be granted hereunder shall
automatically be decreased by the number of shares covered by any unexercised
portion of an Option so issued that has terminated for any reason, and the
shares subject to any such unexercised portion may not be optioned to any other
person.
5.2 Anti-dilution.
(a) If the outstanding shares of Stock are changed into or exchanged for a
different number or kind of shares or other securities of the Company by reason
of merger, consolidation, reorganization, recapitalization, reclassification,
combination or exchange of shares, stock split or stock dividend, if any
spin-off, spin-out or other distribution of assets materially affects the price
of the Company's stock, or if any assumption and conversion to the Plan by the
Company of an acquired company's outstanding option grants then:
(i) the aggregate number and kind of shares of Stock for which Options or
Awards may be granted hereunder shall be adjusted proportionately by the
Committee; and
(ii) the rights of Optionees (concerning the number of shares subject to
Options and the Exercise Price) under outstanding Options and the rights
of the holders of Awards (concerning the terms and conditions of the lapse
of any then-remaining restrictions), shall be adjusted proportionately by
the Committee.
(b) If the Company shall be a party to any reorganization in which it does not
survive, involving merger, consolidation, or acquisition of the stock or
substantially all the assets of the Company, the Committee, in its discretion,
may:
(i) notwithstanding other provisions hereof, declare that all Options granted
under the Plan shall become exercisable immediately notwithstanding the
provisions of the respective Stock Option Agreements regarding exercisability,
that all such Options shall terminate 30 days after the Committee gives written
notice of the immediate right to exercise all such options and of the decision
to terminate all Options not exercised within such 30 day period, and that all
then-remaining restrictions pertaining to Awards under the Plan shall
immediately lapse; and/or
(ii) notify all Grantees that all Options or Awards granted under the Plan shall
be assumed by the successor corporation or substituted on an equitable basis
with options or restricted stock issued by such successor corporation.
(c) If the Company is to be liquidated or dissolved in connection with a
reorganization described in Section 5.2(b), the provisions of such Section shall
apply. In all other instances, the adoption of a plan of dissolution or
liquidation of the Company shall, notwithstanding other provisions hereof, cause
all then-remaining restrictions pertaining to Awards under the Plan to lapse,
and shall cause every Option outstanding under the Plan to terminate to the
extent not exercised prior to the adoption of the plan of dissolution or
liquidation by the shareholders, provided that, notwithstanding other provisions
hereof, the Committee may declare all Options granted under the Plan to be
exercisable at any time on or before the fifth business day following such
adoption notwithstanding the provisions of the respective Stock Option
Agreements regarding exercisability.
(d) The adjustments described in paragraphs (a) through (c) of this Section 5.2,
and the manner of their application, shall be determined solely by the
Committee, and any such adjustment may provide for the elimination of fractional
share interests; provided, however, that any adjustment made by the Board or the
Committee shall be made in a manner that will not cause an Incentive Stock
Option to be other than an Incentive Stock Option under applicable statutory and
regulatory provisions. The adjustments required under this Article V shall apply
to any successors of the Company and shall be made regardless of the number or
type of successive events requiring such adjustments.
5.3 Per-Employee Limitation. Subject to any antidilution adjustment pursuant to
the provisions of Section 5.2 hereof, the maximum number of shares of Stock in
any combination of Incentive Stock Options, non-Incentive Stock Options,
Restricted Stock that may be issued hereunder to any one Employee in any given
fiscal year shall be 2,000,000 in fiscal years 1995 and 1996 and 500,000 in all
fiscal years thereafter.
ARTICLE VI
OPTIONS
6.1 Types of Options Granted. The Committee may, under this Plan, grant either
Incentive Stock Options or Options which do not qualify as Incentive Stock
Options. Within the limitations provided in this Plan, both types of Options may
be granted to the same person at the same time, or at different times, under
different terms and conditions, as long as the terms and conditions of each
Option are consistent with the provisions of the Plan. Without limitation of the
foregoing, Options may be granted subject to conditions based on the financial
performance of the Company or any other factor the Committee deems relevant.
6.2 Option Grant and Agreement. Each Option granted hereunder shall be evidenced
by a written Stock Option Agreement executed by the Company and the Optionee.
The terms of the Option, including the Option's duration, time or times of
exercise, exercise price, whether the Option is intended to be an Incentive
Stock Option, and whether the Option is to be accompanied by the right to
receive a Reload Option, shall be stated in the Stock Option Agreement. No
Incentive Stock Option may be granted more than ten years after the earlier to
occur of the effective date of the Plan or the date the Plan is approved by the
Company's shareholders.
Separate Stock Option Agreements may be used for Options intended to be
Incentive Stock Options and those not so intended, but any failure to use such
separate agreements shall not invalidate, or otherwise adversely affect the
Optionee's interest in, the Options evidenced thereby.
6.3 Optionee Limitations. The Committee shall not grant an Incentive Stock
Option to any person who, at the time the Incentive Stock Option is granted:
(a) is not an employee of the Company or any of its Subsidiaries; or
(b) owns or is considered to own stock possessing at least 10% of the total
combined voting power of all classes of stock of the Company or any of its
Parent or Subsidiary corporations; provided, however, that this limitation shall
not apply if at the time an Incentive Stock Option is granted the Exercise Price
is at least 110% of the Fair Market Value of the Stock subject to such Option
and such Option by its terms would not be exercisable after five years from the
date on which the Option is granted. For the purpose of this subsection (b), a
person shall be considered to own: (i) the stock owned, directly or indirectly,
by or for his or her brothers and sisters (whether by whole or half blood),
spouse, ancestors and lineal descendants; (ii) the stock owned, directly or
indirectly, by or for a corporation, partnership, estate, or trust in proportion
to such person's stock interest, partnership interest or beneficial interest
therein; and (iii) the stock which such person may purchase under any
outstanding options of the Employer or of any Parent or Subsidiary of the
Employer.
6.4 $100,000 Limitation. Except as provided below, the Committee shall not grant
an Incentive Stock Option to, or modify the exercise provisions of outstanding
Incentive Stock Options held by, any person who, at the time the Incentive Stock
Option is granted (or modified), would thereby receive or hold any Incentive
Stock Options of the Employer and any Parent or Subsidiary of the Employer, such
that the aggregate Fair Market Value (determined as of the respective dates of
grant or modification of each option) of the stock with respect to which such
Incentive Stock Options are exercisable for the first time during any calendar
year is in excess of $100,000 (or such other limit as may be prescribed by the
Code from time to time); provided that the foregoing restriction on modification
of outstanding Incentive Stock Options shall not preclude the Committee from
modifying an outstanding Incentive Stock Option if, as a result of such
modification and with the consent of the Optionee, such Option no longer
constitutes an Incentive Stock Option; and provided that, if the $100,000
limitation (or such other limitation prescribed by the Code) described in this
Section 6.4 is exceeded, the Incentive Stock Option, the granting or
modification of which resulted in the exceeding of such limit, shall be treated
as an Incentive Stock Option up to the limitation and the excess shall be
treated as an Option not qualifying as an Incentive Stock Option.
6.5 Exercise Price. The exercise Price of the Stock subject to each Option shall
be determined by the Committee. Subject to the provisions of Section 6.3(b)
hereof, the Exercise Price of an Incentive Stock Option shall not be less than
100% of the Fair Market Value of the Stock as of the date the Option is granted
(or in the case of an Incentive Stock Option that is subsequently modified, on
the date of such modification). The Exercise Price of a non Incentive Stock
Option shall not be less than 100% of the Fair Market Value of the Stock on the
date the Option is granted.
6.6 Exercise Period. The period for the exercise of each Option granted
hereunder shall be determined by the Committee, but the Stock Option Agreement
with respect to each Option intended to be an Incentive Stock Option shall
provide that such Option shall not be exercisable after the expiration of ten
years from the date of grant (or modification) of the Option. In addition, no
Option granted to a Section 16 Insider shall be exercisable prior to the
expiration of six months from the date such Option is granted, other than in the
case of the death or disability of the Optionee, and no Option shall be
exercisable prior to shareholder approval of the Plan.
6.7 Option Exercise.
(a) Unless otherwise provided in the Stock Option Agreement or Section 6.6
hereof, an Option may be exercised at any time or from time to time during the
term of the Option as to any or all full shares which have become Purchasable
under the provisions of the Option, but not at any time as to less than 100
shares unless the remaining shares that have become so Purchasable are less than
100 shares. The Committee shall have the authority to prescribe in any Stock
Option Agreement that the Option may be exercised only in accordance with a
vesting schedule during the term of the Option.
(b) An Option shall be exercised by (i) delivery to the Company at its principal
office a written notice of exercise with respect to a specified number of shares
of Stock and (ii) payment to the Company at that office of the full amount of
the Exercise Price for such number of shares in accordance with Section 6.7(c).
If requested by an Optionee, an Option may be exercised with the involvement of
a stockbroker in accordance with the federal margin rules set forth in
Regulation T (in which case the certificates representing the underlying shares
will be delivered by the Company directly to the stockbroker).
(c) The Exercise Price is to be paid in full in cash upon the exercise of the
Option and the Company shall not be required to deliver certificates for the
shares purchased under such payment has been made; provided, however, that in
lieu of cash, all or any portion of the Exercise Price may be paid by tendering
to the Company shares of Stock duly endorsed for transfer and owned by the
Optionee, or by authorization to the Company to withhold shares of Stock
otherwise issuable upon exercise of the Option, in each case to be credited
against the Exercise Price at the Fair Market Value of such shares on the date
of exercise (however, no fractional shares may be so transferred, and the
Company shall not be obligated to make any cash payments in consideration of any
excess of the aggregate Fair Market Value of shares transferred over the
aggregate Exercise Price); provided further, that the Board may provide in a
Stock Option Agreement (or may otherwise determine in its sole discretion at the
time of exercise) that, in lieu of cash or shares, all or a portion of the
Exercise Price may be paid by the Optionee's execution of a recourse note equal
to the Exercise Price or relevant portion thereof, subject to compliance with
applicable state and federal laws, rules and regulations.
(d) In addition to and at the time of payment of the Exercise Price, the
Optionee shall pay to the Company in cash the full amount of any federal, state,
and local income, employment, or other withholding taxes applicable to the
taxable income of such Optionee resulting from such exercise; provided, however,
that in the discretion of the Committee any Stock Option Agreement may provide
that all or any portion of such tax obligations, together with additional taxes
not exceeding the actual additional taxes to be owed by the Optionee as a result
of such exercise, may, upon the irrevocable election of the Optionee, be paid by
tendering to the Company whole shares of Stock duly endorsed for transfer and
owned by the Optionee, or by authorization to the Company to withhold shares of
Stock otherwise issuable upon exercise of the Option, in either case in that
number of shares having a Fair Market Value on the date of exercise equal to the
amount of such taxes thereby being paid, and subject to such restrictions as to
the approval and timing of any such election as the Committee may from time to
time determine to be necessary or appropriate to satisfy the conditions of the
exemption set forth in Rule 16b-3 under the Exchange Act, if such rule is
applicable.
(e) The holder of an Option shall not have any of the rights of a shareholder
with respect to the shares of Stock subject to the Option until such shares have
been issued and transferred to the Optionee upon the exercise of the Option.
6.8 Reload Options.
(a) The Committee may specify in a Stock Option Agreement (or may otherwise
determine in its sole discretion) that a Reload Option shall be granted, without
further action of the Committee, (i) to an Optionee who exercises an Option
(including a Reload Option) by surrendering shares of Stock in payment of
amounts specified in Sections 6.7(c) or 6.7(d) hereof, (ii) for the same number
of shares as are surrendered to pay such amounts, (iii) as of the date of such
payment and at an Exercise Price equal to the Fair Market Value of the Stock on
such date, and (iv) otherwise on the same terms and conditions as the Option
whose exercise has occasioned such payment, except as provided below and subject
to such other contingencies, conditions, or other terms as the Committee shall
specify at the time such exercised Option is granted; provided, that the shares
surrendered in payment as provided above must have been held by the Optionee for
at least six months prior to such surrender.
(b) Unless provided otherwise in the Stock Option Agreement, a Reload Option may
not be exercised by an Optionee (i) prior to the end of a one-year period from
the date that the Reload Option is granted, and (ii) unless the Optionee retains
beneficial ownership of the shares of Stock issued to such Optionee upon
exercise of the Option referred to above in Section 6.8(a)(i) for a period of
one year from the date of such exercise.
6.9 Nonassignability and Nontransferability of Options.
(a) Except as provided in Paragraph 6.9(b), no Option under the Plan shall be
assignable or transferable by an Optionee, except by will or by the laws of
descent and distribution or, in the case of non-Incentive Stock Options,
pursuant to a Qualified Domestic Relations Order. Also, except as provided in
Paragraph 6.9(b), during the life of the Optionee, such award shall be
exercisable only by such person or by such person's guardian or legal
representative.
(b) Each non-Incentive Stock Option granted to an Optionee, to the extent so
provided in such Optionee's individual Stock Option Agreement by the Committee,
in its sole and absolute discretion, shall be transferable by gift to any member
of the Optionee's immediate family or to a trust for the benefit of such
immediate family member(s) and, if so transferred, shall be exercisable, solely
by the transferee in the case of such transfer by gift.
6.10 Termination of Employment or Service. The Committee shall have the power to
specify, with respect to the Options granted to a particular Optionee, the
effect upon such Optionee's right to exercise an Option of termination of such
Optionee's employment or service under various circumstance, which effect may
include immediate or deferred termination of such Optionee's Rights under an
Option, or acceleration of the date at which an Option may be exercised in full;
provided, however, that in no event may an Incentive Stock Option be exercised
after the expiration of ten years from the date of grant thereof.
6.11 Employment Rights. Nothing in the Plan or in any Stock Option Agreement
shall confer on any person any Right to continue in the employ of the Company or
any of its Subsidiaries, or shall interfere in any way with the right of the
Company or any of its Subsidiaries
to terminate such person's employment at any time.
6.12 Certain Successor Options. To the extent not inconsistent with the terms,
limitations and conditions of Code section 422 and any regulations promulgated
with respect thereto, an Option issued in respect of an option held by an
employee to acquire stock of any entity acquired, by merger or otherwise, by the
Company (or any Subsidiary of the Company) may contain terms that differ from
those stated in this Article VI, but solely to the extent necessary to preserve
for any such employee the rights and benefits contained in such predecessor
option, or to satisfy the requirements of Code section 424(a).
6.13 Effect of Change in Control. The Committee may determine, at the time of
granting an Option or thereafter, that such Option shall become exercisable on
an accelerated basis in the event that a Change in Control occurs with respect
to the Company (and the Committee shall have the discretion to modify the
definition of a Change in Control in a particular Option Agreement). If the
Committee finds that there is a reasonable possibility that, within the
succeeding six months, a Change in Control will occur with respect to the
Company, then the Committee may determine that all outstanding Options shall be
exercisable on an
accelerated basis.
ARTICLE VII
RESTRICTED STOCK
7.1 Awards of Restricted Stock. The Committee may grant Awards of Restricted
Stock, which shall be governed by a Restriction Agreement between the Company
and the Grantee. Each Restriction Agreement shall contain such restrictions,
terms, and conditions as the Committee may, in its discretion, determine, and
may require that an appropriate legend be placed on the certificates evidencing
the subject Restricted Stock.
Shares of Restricted Stock granted pursuant to an Award hereunder shall be
issued in the name of the Grantee as soon as reasonably practicable after the
Award is granted, provided that the Grantee has executed the Restriction
Agreement governing the Award, the appropriate blank stock powers and, in the
discretion of the Committee, an escrow agreement and any other documents which
the Committee may require as a condition to the issuance of such Shares. If a
Grantee shall fail to execute the foregoing documents within any time period
prescribed by the Committee, the Award shall be void. At the discretion of the
Committee, Shares issued in connection with an Award shall be deposited together
with the stock powers with an escrow agent designated by the Committee. Unless
the Committee determines otherwise and as set forth in the Restriction
Agreement, upon delivery of the Shares to the escrow agent, the Grantee shall
have all of the rights of a shareholder with respect to such Shares, including
the right to vote the Shares and to receive all dividends or other distributions
paid or made with respect to the Shares.
7.2 Non-Transferability. Until any restrictions upon Restricted Stock awarded to
a Grantee shall have lapsed in a manner set forth in Section 7.3, such shares of
Restricted Stock shall not be transferable other than by will or the laws of
descent and distribution, or pursuant to a Qualified Domestic Relations Order,
nor shall they be delivered to the Grantee.
7.3 Lapse of Restrictions. Restrictions upon Restricted Stock awarded hereunder
shall lapse at such time or times (but with respect to any award to a Grantee
who is also a Section 16 Insider, not less than six months after the date of the
Award) and on such terms and conditions as the Committee may, in its discretion,
determine at the time the Award is granted. After the grant of an Award, the
Committee may only accelerate the lapse of restrictions on an Award prior to the
end of the initial three year period following the grant of the Award (one-year
if the restrictions on the Award are based on performance) in the event of a
Change in Control, or the death, disability, or retirement of a Grantee.
7.4 Termination of Employment. The Committee shall have the power to specify,
with respect to each Award granted to any particular Grantee, the effect upon
such Grantee's rights with respect to such Restricted Stock of the termination
of such Grantee's employment under various circumstances, which effect may
include immediate or deferred forfeiture of such Restricted Stock or
acceleration of the date at which any then-remaining restrictions shall lapse.
7.5 Treatment of Dividends. At the time an Award of Restricted Stock is made the
Committee may, in its discretion, determine that the payment to the Grantee of
any dividends, or a specified portion thereof, declared or paid on such
Restricted Stock shall be (i) deferred until the lapsing of the relevant
restrictions and (ii) held by the Company for the account of the Grantee until
such lapsing. In the event of such deferral, there shall be credited at the end
of each year (or portion thereof) interest on the amount of the account at the
beginning of the year at a rate per annum determined by the Committee. Payment
of deferred dividends, together with interest thereon, shall be made upon the
lapsing of restrictions imposed on such Restricted Stock, and any dividends
deferred (together with any interest thereon) in respect of Restricted Stock
shall be forfeited upon any forfeiture of such Restricted Stock.
7.6 Delivery of Shares. Except as provided otherwise in Article IX below, within
a reasonable period of time following the lapse of the restrictions on shares of
Restricted Stock, the Committee shall cause a stock certificate to be delivered
to the Grantee with respect to such shares and such shares shall be free of all
restrictions hereunder.
ARTICLE VIII
STOCK CERTIFICATES
The Company shall not be required to issue or deliver any certificate for shares
of Stock purchased upon the exercise of any Option granted hereunder or any
portion thereof, or deliver any certificate for shares of Restricted Stock
granted hereunder, prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which the
Stock is then listed;
(b) The completion of any registration or other qualification of such shares
which the Committee shall deem necessary or advisable under any federal or state
law or under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body;
(c) The obtaining of any approval or other clearance from any federal or state
governmental agency or body which the Committee shall determine to be necessary
or advisable; and
(d) The lapse of such reasonable period of time following the exercise of the
Option as the Board from time to time may establish for reasons of
administrative convenience.
Stock certificates issued and delivered to Grantees shall bear such restrictive
legends as the Company shall deem necessary or advisable pursuant to applicable
federal and state securities laws.
ARTICLE IX
TERMINATION AND AMENDMENT
9.1 Termination and Amendment. The Board may at any time terminate the Plan, and
may at any time and from time to time and in any respect amend the Plan;
provided, however, that the Board (unless its actions are approved or ratified
by the Shareholders of the Company within twelve months of the date that the
Board amends the Plan) may not amend the Plan to:
(a) Increase the total number of shares of Stock issuable pursuant to Incentive
Stock Options under the Plan or materially increase the number of shares of
Stock subject to the Plan, in each case except as contemplated in Section 5.2
hereof;
(b) Change the class of employees eligible to receive Incentive Stock Options
that may participate in the Plan or materially change the class of persons that
may participate in the Plan; or
(c) Otherwise materially increase the benefits accruing to participants under
the Plan.
9.2 Effect on Grantee's Rights. No termination, amendment, or modification of
the Plan shall affect adversely a Grantee's rights under a Stock Option
Agreement or Restriction Agreement without the consent of the Grantee or his
legal representative.
ARTICLE X
RELATIONSHIP TO OTHER COMPENSATION PLANS
The adoption of the Plan shall not affect any other stock option, incentive, or
other compensation plans in effect for the Company or any of its Subsidiaries;
nor shall the adoption of the Plan preclude the Company or any of its
Subsidiaries from establishing any other form of incentive or other compensation
plan for employees or Directors of Company or any of its Subsidiaries.
ARTICLE XI
MISCELLANEOUS
11.1 Replacement or Amended Grants. At the sole discretion of the Committee and
subject to the terms of the Plan, the Committee may amend or modify outstanding
Options or Awards; provided however, that no modification of an Option or Award
shall adversely affect a Grantee's rights under a Stock Option Agreement or
Restriction Agreement without the consent of the Grantee or his legal
representative. Notwithstanding any other provision herein to the contrary, the
Committee may, pursuant to Section 5.2 hereof, exchange or substitute
outstanding Options or Awards or adjust the exercise price of outstanding
Options or Awards without a Grantee's consent.
11.2 Forfeiture for Competition. If a Grantee provides services to a competitor
of the Company or any of its Subsidiaries, whether as an employee, officer,
director, independent contractor, consultant, agent, or otherwise, such services
being of a nature that can reasonably be expected to involve the skills and
experience used or developed by the Grantee while an Employee, then that
Grantee's rights under any Options outstanding hereunder shall be forfeited and
terminated, and any shares of Restricted Stock held by such Grantee subject to
remaining restrictions shall be forfeited, subject in each case to a
determination to the contrary by the Committee.
11.3 Plan Binding on Successors. The Plan shall be binding upon the successors
and assigns of the Company.
11.4 Singular, Plural; Gender. Whenever used herein, nouns in the singular shall
include the plural, and the masculine pronoun shall include the feminine gender.
11.5 Headings, etc., No Part of Plan. Headings of Articles and Sections hereof
are inserted for convenience and reference; they do not constitute part of the
Plan.
11.6 Interpretation. With respect to Section 16 Insiders, transactions under
this Plan are intended to comply with all applicable conditions of Rule 16b-3 or
its successors under the Exchange Act. To the extent any provision of the Plan
or action by the Plan administrators fails to so comply, it shall be deemed void
to the extent permitted by law and deemed advisable by the Plan administrators.
* * * * * *
JK2 142146.1
Exhibit A to Modis
Professional Services, Inc.
Incorporated Amended
and Restated 1995 Stock
Option Plan - Form of
Stock Option Agreement
MODIS PROFESSIONAL SERVICES, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), entered into as of this day of
_______, ______, by and between Modis Professional Services, Inc., a Florida
corporation (the "Company "), and _____________ (the "Optionee").
WHEREAS, on August 24, 1995, the Board of Directors of the Company adopted a
stock option plan known as the "Modis Professional Services, Inc. Amended and
Restated 1995 Stock Option Plan" (the "Plan"), and recommended that the Plan be
approved by the Company's shareholders; and
WHEREAS, the Committee has granted the Optionee a stock option to purchase the
number of shares of the Company's common stock as set forth below, and in
consideration of the granting of that stock option the Optionee intends to
remain in the employ of the Company; and
WHEREAS, the Company and the Optionee desire to enter into a written agreement
with
respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock ownership, and
also in consideration of the mutual covenants contained herein, the parties
hereto agree as follows.
1. Incorporation of Plan. This option is granted pursuant to the provisions of
the Plan and the terms and definitions of the Plan are incorporated herein by
reference and made a part hereof. A copy of the Plan has been delivered to, and
receipt is hereby acknowledged by, the Optionee.
2. Grant of Option. Subject to the terms, restrictions, limitations and
conditions stated herein, the Company hereby evidences its grant to the
Optionee, not in lieu of salary or other compensation, of the right and option
(the "Option") to purchase all or any part of the number of shares of the
Company's Common Stock, par value $.01 per share (the "Stock"), set forth on
Schedule A attached hereto and incorporated herein by reference. The Option
shall be exercisable in the amounts and at the time specified on Schedule A. The
Option shall expire and shall not be exercisable on the date specified on
Schedule A or on such earlier date as determined pursuant to Sections 8, 9, or
10 hereof. Schedule A states whether the Option is intended to be an Incentive
Stock Option.
3. Purchase Price The price per share to be paid by the Optionee for the shares
subject to this Option (the "Exercise Price") shall be as specified on Schedule
A, which price shall be an amount not less than the Fair Market Value of a share
of Stock as of the Date of Grant (as defined in Section 11 below) if the Option
is an Incentive Stock Option.
4. Exercise Terms. The Optionee must exercise the Option for at least the lesser
of 100 shares or the number of shares of Purchasable Stock as to which the
Option remains unexercised. In the event this Option is not exercised with
respect to all or any part of the shares subject to this Option prior to its
expiration, the shares with respect to which this Option was not exercised shall
no longer be subject to this Option.
5. Option Non-Transferable. No Option shall be transferable by an Optionee other
than by will or the laws of descent and distribution or, in the case of
non-Incentive Stock Options, pursuant to a Qualified Domestic Relations Order,
and no Option shall be transferable by an Optionee who is a Section 16 Insider
prior to shareholder approval of the Plan. During the lifetime of an Optionee,
Options shall be exercisable only by such Optionee (or by such Optionee's
guardian or legal representative, should one be appointed).
6. Notice of Exercise of Option. This Option may be exercised by the Optionee,
or by the Optionee's administrators, executors or personal representatives, by a
written notice (in substantially the form of the Notice of Exercise attached
hereto as Schedule B) signed by the Optionee, or by such administrators,
executors or personal representatives, and delivered or mailed to the Company as
specified in Section 14 hereof to the attention of the President or such other
officer as the Company may designate. Any such notice shall (a) specify the
number of shares of Stock which the Optionee or the Optionee's administrators,
executors or personal representatives, as the case may be, then elects to
purchase hereunder, (b) contain such information as may be reasonably required
pursuant to Section 12 hereof, and (c) be accompanied by (i) a certified or
cashier's check payable to the Company in payment of the total Exercise Price
applicable to such shares as provided herein, (ii) shares of Stock owned by the
Optionee and duly endorsed or accompanied by stock transfer powers having a Fair
Market Value equal to the total Exercise Price applicable to such shares
purchased hereunder, or (iii) a certified or cashier's check accompanied by the
number of shares of Stock whose Fair Market Value when added to the amount of
the check equals the total Exercise Price applicable to such shares purchased
hereunder. Upon receipt of any such notice and accompanying payment, and subject
to the terms hereof, the Company agrees to issue to the Optionee or the
Optionee's administrators, executors or personal representatives, as the case
may be, stock certificates for the number of shares specified in such notice
registered in the name of the person exercising this Option.
7. Adjustment in Option. The number of Shares subject to this Option, the
Exercise Price and other matters are subject to adjustment during the term of
this Option in accordance with Section 5.2 of the Plan.
8. Termination of Employment.
(a) Except as otherwise specified in Schedule A hereto, in the event of the
termination of the Optionee's employment with the Company or any of its
Subsidiaries, other than a termination that is either (i) for cause, (ii)
voluntary on the part of the Optionee and without written consent of the
Company, or (iii) for reasons of death or disability or retirement, the Optionee
may exercise this Option at any time within 30 days after such termination to
the extent of the number of shares which were Purchasable hereunder at the date
of such termination.
(b) Except as specified in Schedule A attached hereto, in the event of a
termination of the Optionee's employment that is either (i) for cause or (ii)
voluntary on the part of the Optionee and without the written consent of the
Company, this Option, to the extent not previously exercised, shall terminate
immediately and shall not thereafter be or become exercisable.
(c) Unless and to the extent otherwise provided in Exhibit A hereto, in the
event of the retirement of the Optionee at the normal retirement date as
prescribed from time to time by the Company or any Subsidiary, the Optionee
shall continue to have the right to exercise any Options for shares which were
Purchasable at the date of the Optionee's retirement [provided that, on the date
which is three months after the date of retirement, the Options will become void
and unexercisable unless on the date of retirement the Optionee enters into a
noncompete agreement with Modis Professional Services, Inc. and continues to
comply with such noncompete agreement]. This Option does not confer upon the
Optionee any right with respect to continuance of employment by the Company or
by any of its Subsidiaries. This Option shall not be affected by any change of
employment so long as the Optionee continues to be an employee of the Company or
one of its Subsidiaries.
9. Disabled Optionee. In the event of termination of employment because of the
Optionee's becoming a Disabled Optionee, the Optionee (or his or her personal
representative) may exercise this Option at any time within three months after
such termination to the extent of the number of shares which were Purchasable
hereunder at the date of such termination.
10. Death of Optionee. Except as otherwise set forth in Schedule A with respect
to the rights of the Optionee upon termination of employment under Section 8(a)
above, in the event of the Optionee's death while employed by the Company or any
of its Subsidiaries or within three months after a termination of such
employment (if such termination was neither (i) for cause nor (ii) voluntary on
the part of the Optionee and without the written consent of the Company), the
appropriate persons described in Section 6 hereof or persons to whom all or a
portion of this Option is transferred in accordance with Section 5 hereof may
exercise this Option at any time within a period ending on the earlier of (a)
the last day of the three month period following the Optionee's death or (b) the
expiration date of this Option. If the Optionee was an employee of the Company
at the time of death, this Option may be so exercised to the extent of the
number of shares that were Purchasable hereunder at the date of death. If the
Optionee's employment terminated prior to his or her death, this Option may be
exercised only to the extent of the number of shares covered by this Option
which were Purchasable hereunder at the date of such termination.
11. Date of Grant. This Option was granted by the Board of Directors of the
Company on the date set forth in Schedule A (the "Date of Grant").
12. Compliance with Regulatory Matters. The Optionee acknowledges that the
issuance of capital stock of the Company is subject to limitations imposed by
federal and state law and the Optionee hereby agrees that the Company shall not
be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate law or any rule, regulation, order or consent
decree of any regulatory authority (including without limitation the Securities
and Exchange Commission) having jurisdiction over the affairs of the Company.
The Optionee agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Stock complies with the provisions described
by this Section 12.
13. Restriction on Disposition of Shares. The shares purchased pursuant to the
exercise of an Incentive Stock Option shall not be transferred by the Optionee
except pursuant to the Optionee's will, or the laws of descent and distribution,
until such date which is the later of two years after the grant of such
Incentive Stock Option or one year after the transfer of the shares to the
Optionee pursuant to the exercise of such Incentive Stock Option.
14 Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto and their
representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be governed by the
laws of, the State of Florida.
(c) Any requests or notices to be given hereunder shall be deemed given, and any
elections or exercises to be made or accomplished shall be deemed made or
accomplished, upon actual delivery thereof to the designated recipient, or three
days after deposit thereof in the United States mail, registered, return receipt
requested and postage prepaid, addressed, if to the Optionee, at the address set
forth below and, if to the Company, to the executive offices of the Company at
One Independent Drive, Jacksonville, Florida 32202.
(d) This Agreement may not be modified except in writing executed by each of
the parties hereto.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused this Stock
Option Agreement to be executed on behalf of the Company and the Company's seal
to be affixed hereto and attested by the Secretary or an Assistant Secretary of
the Company, and the Optionee has executed this Stock Option Agreement under
seal, all as of the day and year first above written.
MODIS PROFESSIONAL SERVICES, INC. OPTIONEE
By:__________________________
Name: Name:
Title: Address:
ATTEST:
_____________________________
Secretary/Assistant Secretary