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Exhibit 10.25
STAFFMARK, INC.
EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
Page
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ARTICLE I...................................................................1
Introduction.......................................................1
Sec. 1.01 Statement of Purpose....................................1
Sec. 1.02 Internal Revenue Code Considerations....................1
Sec. 1.03 ERISA Considerations....................................1
ARTICLE II..................................................................1
Definitions........................................................1
Sec. 2.01 "Board of Directors.....................................1
Sec. 2.02 "Code...................................................1
Sec. 2.03 "Committee..............................................1
Sec. 2.04 "Company................................................1
Sec. 2.05 "Continuous Service.....................................1
Sec. 2.06 "Effective Date"........................................1
Sec. 2.07 "Election Date..........................................1
Sec. 2.08 "Eligible Employee".....................................2
Sec. 2.09 "Employee"..............................................2
Sec. 2.10 "Employer"..............................................2
Sec. 2.11 "Exchange Act"..........................................2
Sec. 2.12 "Excused Absence".......................................2
Sec. 2.13 "Market Value"..........................................2
Sec. 2.14 "Participant"...........................................2
Sec. 2.15 "Plan"..................................................2
Sec. 2.16 "Purchase Agreement"....................................2
Sec. 2.17 "Purchase Date".........................................3
Sec. 2.18 "Purchase Period........................................3
Sec. 2.19 "Stock".................................................3
Sec. 2.20 "Subsidiary.............................................3
ARTICLE III.................................................................3
Admission to Participation.........................................3
Sec. 3.01 Initial Participation...................................3
Sec. 3.02 Discontinuance of Participation.........................3
Sec. 3.03 Readmission to Participation............................3
ARTICLE IV..................................................................4
Stock Purchase and Resale..........................................4
Sec. 4.01 Reservation of Shares...................................4
Sec. 4.02 Limitation on Shares Available..........................4
Sec. 4.03 Purchase Price of Shares................................4
Sec. 4.04 Exercise of Purchase Privilege..........................4
Sec. 4.05 Payroll Deductions......................................5
Sec. 4.06 Payment for Stock.......................................5
Sec. 4.07 Share Ownership; Issuance of Certificates...............5
Sec. 4.08 Withdrawal of Shares or Resale of Stock.................6
ARTICLE V...................................................................7
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Special Adjustments................................................7
Sec. 5.01 Shares Unavailable......................................7
Sec. 5.02 Anti-Dilution Provisions................................7
Sec. 5.03 Effect of Certain Transactions..........................7
ARTICLE VI..................................................................7
Miscellaneous......................................................7
Sec. 6.01 Non-Alienation..........................................7
Sec. 6.02 Administrative Costs....................................8
Sec. 6.03 The Committee...........................................8
Sec. 6.04 Amendment of the Plan...................................8
Sec. 6.05 Expiration and Termination of the Plan..................8
Sec. 6.06 Repurchase of Stock.....................................8
Sec. 6.07 Notice..................................................8
Sec. 6.08 Government Regulation...................................8
Sec. 6.09 Headings, Captions, Gender..............................9
Sec. 6.10 Severability of Provisions, Prevailing Law..............9
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ARTICLE I
Introduction
Sec. 1.01 Statement of Purpose. The purpose of the StaffMark, Inc.
Employee Stock Purchase Plan is to provide eligible employees of the Company and
its subsidiaries, who wish to become shareholders, an opportunity to purchase
common stock of the Company. The board of directors of the Company believes that
employee participation in stock ownership will be to the mutual benefit of both
the employees and the Company.
Sec. 1.02 Internal Revenue Code Considerations. The Plan is intended to
constitute an "employee stock purchase plan" within the meaning of section 423
of the Internal Revenue Code of 1986, as amended.
Sec. 1.01 ERISA Considerations. The Plan is not intended and shall not
be construed as constituting an "employee benefit plan," within the meaning of
section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.
ARTICLE II
Definitions
Sec. 2.01 "Board of Directors" means the board of directors of the
Company or a committee of the board of directors authorized to act on its
behalf.
Sec. 2.01 "Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute of similar nature. References to specific sections of
the Code shall be taken to be references to corresponding sections of any
successor statute.
Sec. 2.03 "Committee" means the committee appointed by the Board of
Directors to administer the Plan, as provided in Section 6.03 hereof.
Sec. 2.04 "Company" means StaffMark, Inc., a Delaware corporation.
Sec. 2.05 "Continuous Service" means the period of time immediately
preceding the Election Date during which the Employee has been employed by an
Employer and during which there has been no interruption of the Employee's
employment with the Employer. For this purpose, periods of Excused Absence shall
not be considered to be interruptions of Continuous Service.
Sec. 2.06 "Effective Date" shall mean June 1, 1997 provided that within
twelve months of that date, the Plan is approved at a meeting of the
shareholders of the Company.
Sec. 2.07 "Election Date" means each January 1 and July 1 or such other
dates as the Committee shall specify.
Sec. 2.08 "Eligible Employee" means each Employee who (i) is classified
by the Employer as an active regular full or part-time employee; (ii) is not
deemed for purposes of section 423(b)(3) of the Code to own stock possessing
five percent (5%) or more of the total combined voting power or value of all
classes of stock of the Company or any Subsidiary; and (iii) has completed at
least one year of Continuous Service with the Employer.
Sec. 2.09 "Employee" means each person employed by an Employer if such
person's customary employment is for more than twenty (20) hours per week and
for more than five (5) months per year. The term shall not include any person
employed by an Employer on a temporary basis.
Sec. 2.10 "Employer" means the Company and each Subsidiary.
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Sec. 2.11 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and as the same may hereafter be amended.
Sec. 2.12 "Excused Absence" means absence pursuant to a leave of
absence granted by the Employer, absence due to disability or illness, absence
by reason of a layoff or inactive status due to completion of an assignment, or
absence by reason of uniformed service within the meaning of the Uniformed
Services Employment and Reemployment Rights Act ("USERRA"). In no event may an
Excused Absence exceed six (6) months in length (or, if longer and if
applicable, the period of the individual's uniformed services within the meaning
of the USERRA and such period thereafter as such individual's right to
reemployment by Employer is protected by law), and any absence shall cease to be
an Excused Absence upon the earlier of (a) the last day of the calendar month in
which the duration of the absence reaches six (6) months (or such longer period
as may be required under the USERRA or other applicable law) or (b) the last day
of the calendar month in which the leave expires by its terms, the layoff or
inactive status ends by recall or permanent separation from service, or recovery
from illness or disability occurs.
Sec. 2.13 "Market Value" means the last price for the Stock as reported
on the Nasdaq National Market for the date of reference. If there was no such
price reported for the date of reference, "Market Value" means the "Market
Value" as of the date next preceding the date of reference for which such price
was reported.
Sec. 2.14 "Participant" means each Eligible Employee who elects to
participate in the Plan.
Sec. 2.15 "Plan" means the StaffMark Employee Stock Purchase Plan, as
the same is set forth herein and as the same may hereafter be amended.
Sec. 2.16 "Purchase Agreement" means the instrument prescribed by the
Committee pursuant to which an Eligible Employee may enroll as a Participant and
subscribe for the purchase of shares of Stock on the terms and conditions
offered by the Company. The Purchase Agreement also is intended to evidence the
Company's offer of an option to the Eligible Employee to purchase Stock on the
terms and conditions set forth therein and herein.
Sec. 2.17 "Purchase Date" means September 30, 1997 and the last day of
each Purchase Period ending thereafter.
Sec. 2.18 "Purchase Period" means the period July 1, 1997 (or such
later date as designated by the Committee) through September 30, 1997 and,
thereafter, each calendar quarter or other period specified by the Board of
Directors during which the Participant's stock purchase is funded through
payroll deduction accumulations.
Sec. 2.19 "Stock" means the common stock of the Company.
Sec. 2.20 "Subsidiary" means any present or future corporation (i)
which constitutes a "subsidiary corporation" of the Company as that term is
defined in section 424 of the Code, and (ii) is designated as a participating
entity in the Plan by the Committee. Unless the Committee specifically
designates otherwise, a Canadian or other foreign subsidiary shall not be
considered a Subsidiary for purposes of the Plan, and employees of such a
subsidiary shall not be Eligible Employees.
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ARTICLE III
Admission to Participation
Sec. 3.01 Initial Participation. Any Eligible Employee may elect to be
participate in the Plan and may become a Participant effective as of any
Election Date, by executing and filing with the Committee a Purchase Agreement
at such time in advance of such Election Date as the Committee shall prescribe.
Such Purchase Agreement shall remain in effect until modified or canceled in
accordance with the further terms of this Plan, as hereinafter set forth.
Sec. 3.02 Discontinuance of Participation. A Participant may
voluntarily cease his or her participation in the Plan and stop payroll
deductions at any time by filing a notice of cessation of participation on such
form and at such time in advance of the effective date as the Committee shall
prescribe. Notwithstanding anything in the Plan to the contrary, if a
Participant ceases to be an Eligible Employee, his or her participation
automatically shall cease and no further purchase of Stock shall be made for
such Participant hereunder.
Sec. 3.03 Readmission to Participation. Any Eligible Employee who has
previously been a Participant, who has discontinued participation (whether by
cessation of eligibility or otherwise), and who wishes to be reinstated as a
Participant may again become a Participant by executing and filing with the
Committee a new Purchase Agreement. Reinstatement to Participant status shall be
effective as of any Election Date, provided the Participant files such new
Purchase Agreement with the Committee at such time in advance of such Election
Date as the Committee shall prescribe.
ARTICLE IV
Stock Purchase and Resale
Sec. 4.01 Reservation of Shares. There shall be 300,000 shares of Stock
reserved for the Plan, subject to adjustment in accordance with the antidilution
provisions hereinafter set forth. Except as provided in Section 5.02 hereof, the
aggregate number of shares of Stock that may be purchased under the Plan shall
not exceed the number of shares of Stock reserved for the Plan.
Sec. 4.02 Limitation on Shares Available. The maximum number of shares
of Stock that may be purchased for each Participant on a Purchase Date is the
lesser of (a) the number of whole and fractional shares of Stock that can be
purchased by applying the full balance of the Participant's withheld funds to
such purchase of shares of Stock at the Purchase Price (as hereinafter
determined), or (b) the Participant's proportionate part of the maximum number
of shares of Stock available within the limitation established by the maximum
aggregate number of such shares reserved for the Plan, as stated in Section 4.01
hereof. Notwithstanding the foregoing, if any person entitled to purchase shares
pursuant to any offering hereunder would be deemed for the purposes of section
423(b)(3) of the Code to own stock (including any number of shares of Stock that
such person would be entitled to purchase hereunder) possessing five percent
(5%) or more of the total combined voting power or value of all classes of stock
of Company, the maximum number of shares of Stock that such person shall be
entitled to purchase pursuant to the Plan shall be reduced to that number which,
when added to the number of shares of stock that such person is so deemed to own
(excluding any number of shares of Stock that such person would be entitled to
purchase hereunder), is one less than such five percent (5%). Any amounts
withheld from the Participant's compensation that cannot be applied by reason of
the foregoing limitation shall be returned to the Participant as soon as
practicable.
Sec. 4.03 Purchase Price of Shares. The Purchase Price per share of the
Stock sold to Participants pursuant to any offering hereunder shall be the lower
of eighty-five percent (85%) of the Market Value of such share on the first day
of the Purchase Period or the Purchase Date. Notwithstanding the foregoing, the
Board of Directors may determine that the Purchase Price shall be the Market
Value, or a percentage of the Market Value on either of such dates or the lower
of such dates, so long as such percentage shall not be lower than eighty-five
percent (85%) of such Market Value.
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Sec. 4.04 Exercise of Purchase Privilege
1. Each Participant shall be granted an option to purchase
shares of Stock as of the first day of each Purchase Period at the Purchase
Price specified in Section 4.03. The option shall continue in effect through
the Purchase Date for the Purchase Period. Subject to the provisions of Section
4.02 above and of paragraph (c) of this Section 4.04, on each Purchase Date,
the Participant shall be automatically deemed to have exercised his or her
option to purchase shares of Stock on the Purchase Date, unless he or she
notifies the Committee, in such manner and at such time in advance of the
Purchase Date as the Committee shall prescribe, of his or her desire not to
make such purchase.
2. There shall be purchased for the Participant on such
Purchase Date at the Purchase Price for such Purchase Period the largest number
of whole and fractional shares of Stock as can be purchased with the amounts
withheld from the Participant's compensation during the Purchase Period. Each
such purchase shall be deemed to have occurred on the Purchase Date occurring
at the close of the Purchase Period for which the purchase was made.
3. A Participant may not purchase shares of Stock having an
aggregate Market Value of more than twenty-five thousand dollars ($25,000),
determined at the beginning of each Purchase Period, for any calendar year in
which one or more such offerings are outstanding at any time, and a Participant
may not purchase a share of Stock under any offering after the expiration of
the Purchase Period for such offering.
Sec. 4.05 Payroll Deductions. Each Participant shall authorize
payroll deductions from his or her compensation for the purpose of funding the
purchase of Stock pursuant to his or her Purchase Agreement. In the Purchase
Agreement, each Participant shall authorize an after-tax payroll deduction from
each payment of his compensation during a Purchase Period, of an amount not less
than $10 per paycheck ($20 for any Participant on a monthly payroll period) and
not more than 10% of such Participant's compensation. A Participant may change
the deduction to any permissible level effective as of any Election Date. Such
change shall be made by the Participant's filing with the Committee a notice in
such form and at such time in advance of the date on which such change is to be
effective as the Committee shall prescribe.
Sec. 4.06 Payment for Stock. The Purchase Price for all shares of
Stock purchased by a Participant under the Plan shall be paid out of the
Participant's authorized payroll deductions. All funds received or held by the
Company under the Plan are general assets of the Company, free of any trust or
other restriction, and may be used for any corporate purpose.
Sec. 4.07 Share Ownership; Issuance of Certificates
(a) The shares of Stock purchased by a Participant on a
Purchase Date shall, for all purposes, be deemed to have been issued and/or
sold at the close of business on such Purchase Date. Prior to that time, none of
the rights or privileges of a shareholder of the Company shall inure to the
Participant with respect to such shares of Stock. All the shares of Stock
purchased under the Plan shall be delivered by the Company in a manner as
determined by the Committee.
(b) The Committee, in its sole discretion, may determine
that the shares of Stock shall be delivered by the Company by (i) issuing and
delivering to the Participant a certificate for the number of shares of Stock
purchased by such Participant on a Purchase Date or during a calendar year or
other period determined by the Committee, (ii) issuing and delivering a
certificate or certificates for the number of shares of Stock purchased by all
Participants on a Purchase Date or during a calendar year or other period
determined by the Committee to a firm which is a member of the National
Association of Securities Dealers, as selected by the Committee from time to
time, which shares shall be maintained by such firm in separate brokerage
accounts of each Participant, or (iii) issuing and delivering a certificate or
certificates for the number of shares of Stock purchased by all Participants on
a Purchase Date or during the calendar year or other period determined by the
Committee to a bank or trust company or affiliate thereof, as selected by the
Committee from time to time, which shares may be
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held by such bank or trust company or affiliate in "street name", but with
separate accounts maintained by such entity for each Participant reflecting such
Participant's whole share interests in the Stock. Each certificate or account,
as the case may be, may be in the name of the Participant or, if he/she
designates on the Participant's Purchase Agreement, in the Participant's name
jointly with the Participant's spouse, with right of survivorship. A Participant
who is a resident of a jurisdiction that does not recognize such joint tenancy
may have a certificate or account in the Participant's name as tenant in common
with the Participant's spouse, without right of survivorship. Such designation
may be changed by filing notice thereof.
(c) In addition to any restrictions or limitations on the
resale of Stock purchased under the Plan set forth in Section 4.08 hereof or
otherwise hereunder, the Committee, in its sole discretion, may impose such
restrictions or limitations, as it shall determine, on the resale of Stock, the
issuance of individual stock certificates or withdrawal from any shareholder
accounts established for a Participant pursuant to the terms hereof.
(d) Any dividends payable with respect to whole or fractional
shares of Stock credited to a shareholder account of a Participant
established pursuant to Section 4.07(b) hereof will be reinvested in shares of
Stock and credited to such Participant's account.
Sec. 4.08 Withdrawal of Shares or Resale of Stock
(a) A Participant may not sell any shares of Stock purchased
hereunder or withdraw his or her shares of Stock from any shareholder
account established pursuant to Section 4.07(b) hereof prior to the first
anniversary of the Purchase Date on which the shares were purchased. After the
first anniversary of the Purchase Date for shares of Stock, the Participant may
request a withdrawal of those shares or order the sale of those shares at any
time by making a request in such form and at such time as the Committee shall
prescribe.
(b) Notwithstanding the foregoing, in the event a
Participant terminates his or her employment with all Employers or otherwise
ceases to be an Eligible Employee, he or she shall receive a distribution of his
or her shares of Stock held in any shareholder account established pursuant to
Section 4.07(b), unless he or she elects to have such shares of Stock sold in
accordance with such procedures as the Committee shall prescribe.
(c) If a Participant is to receive a withdrawal or
distribution of shares of Stock, the withdrawal or distribution shall be paid in
whole shares of Stock, with fractional shares paid in cash.
ARTICLE V
Special Adjustments
Sec. 5.01 Shares Unavailable. If, on any Purchase Date, the
aggregate funds available for the purchase of Stock would purchase a number of
shares in excess of the number of shares of Stock then available for purchase
under the Plan, the following events shall occur:
1. The number of shares of Stock that would otherwise be
purchased by each Participant shall be proportionately reduced on the
Purchase Date in order to eliminate such excess; and
2. The Plan shall automatically terminate immediately after
the Purchase Date as of which the supply of available shares is exhausted.
Sec. 5.02 Anti-Dilution Provisions. The aggregate number of shares of
Stock reserved for purchase under the Plan, as hereinabove provided,
and the calculation of the Purchase Price per share may be appropriately
adjusted to reflect any increase or decrease in the number of issued shares of
Stock resulting from a subdivision or consolidation of shares or other capital
adjustment, or the payment of a stock dividend, or other increase or decrease in
such shares, if effected without receipt of consideration by the Company. Any
such
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adjustment shall be made by the Committee acting with the consent of, and
subject to the approval of, the Board of Directors.
Sec. 5.03 Effect of Certain Transactions. Subject to any required
action by the shareholders, if the Company shall be the surviving or resulting
corporation in any merger or consolidation, any offering hereunder shall
pertain to and apply to the shares of stock of the Company. However, in the
event of a dissolution or liquidation of the Company, or of a merger or
consolidation in which the Company is not the surviving or resulting
corporation, the Plan and any offering hereunder shall terminate upon the
effective date of such dissolution, liquidation, merger or consolidation, and
the balance of any amounts withheld from the Participant's compensation, which
had not by such time been applied to the purchase of stock shall be returned to
the Participant.
ARTICLE VI
Miscellaneous.
Sec. 6.01 Non-Alienation. The right to purchase shares of Stock under
the Plan is personal to the Participant, is exercisable only by the Participant
during the Participant's lifetime except as hereinafter set forth, and may not
be assigned or otherwise transferred by the Participant. Notwithstanding the
foregoing, there shall be delivered to the executor, administrator or other
personal representative of a deceased Participant such shares of Stock and such
residual amounts as may remain to the Participant's credit from amounts
withheld from the Participant's compensation as of the Purchase Date occurring
at the close of the period in which the Participant's death occurs, including
shares of Stock purchased as of that date or prior thereto with moneys withheld
from the Participant's compensation.
Sec. 6.02 Administrative Costs. The Company shall pay all
administrative expenses associated with the operation of the Plan.
Sec. 6.03 The Committee. The Board of Directors shall appoint a
Committee, which shall have the authority and power to administer the Plan and
to make, adopt, construe, and enforce rules and regulations not inconsistent
with the provisions of the Plan. The Committee shall adopt and prescribe the
contents of all forms required in connection with the administration of the
Plan, including, but not limited to, the Purchase Agreement, payroll
withholding authorizations, withdrawal documents, and all other notices
required hereunder. The Committee shall have the fullest discretion permissible
under law in the discharge of its duties. The Committee's interpretations and
decisions in respect of the Plan, the rules and regulations pursuant to which
it is operated, and the rights of Participants hereunder shall be final and
conclusive.
Sec. 6.04 Amendment of the Plan. The Board of Directors (or its
delegate) may amend or terminate the Plan at any time; provided, however, that
the Board of Directors (or its delegate) shall not amend the Plan without
stockholder approval if: (i) the amendment increases the number of shares
available for purchase under the Plan, or (ii) such approval is required by
section 423 of the Code.
Sec. 6.05 Expiration and Termination of the Plan. The Plan shall
continue in effect for ten (10) years from the Effective Date, unless
terminated prior thereto pursuant to the provisions of the Plan or pursuant to
action by the Board of Directors, which shall have the right to terminate the
Plan at any time without prior notice to any Participant and without liability
to any Participant. Upon the expiration or termination of the Plan, the
balance, if any, then standing to the credit of each Participant from amounts
withheld from the Participant's compensation which had not, by such time, been
applied to the purchase of Stock shall be refunded to the Participant.
Sec. 6.06 Repurchase of Stock. The Company shall not be required to
purchase or repurchase from any Participant any of the shares of Stock that
the Participant acquired under the Plan.
Sec. 6.07 Notice. A Purchase Agreement and any notice that a
Participant files pursuant to the Plan shall be on the form prescribed by the
Committee and shall be effective only when received by the Committee. Delivery
of such forms may he made by hand or by certified mail, sent postage prepaid, to
StaffMark, Inc. 302 East
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Millsap Road, Fayetteville, AR 72703 Attention: Employee Stock Purchase Plan
Administrator. Delivery by any other mechanism shall be deemed effective at the
option and discretion of the Committee.
Sec. 6.08 Government Regulation. The Company's obligation to
sell and to deliver the Stock under the Plan is at all times subject to all
approvals of any governmental authority required in connection with the
authorization, issuance, sale or delivery of such Stock.
Sec. 6.09 Headings, Captions, Gender. The headings and
captions herein are for convenience of reference only and shall not be
considered as part of the text. The masculine shall include the feminine, and
vice versa.
Sec. 6.10 Severability of Provisions, Prevailing Law. The provisions
of the Plan shall be deemed severable. In the event any such provision is
determined to be unlawful or unenforceable by a court of competent jurisdiction
or by reason of a change in an applicable statute, the Plan shall continue to
exist as though such provision had never been included therein (or, in the case
of a change in an applicable statute, had been deleted as of the date of such
change). The Plan shall be governed by the laws of the State of Delaware to the
extent such laws are not in conflict with, or superseded by, federal law.
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