As filed with the Securities and Exchange Commission on May 30, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ADMINISTAFF, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
|
76-0479645
(I.R.S. Employer
Identification No.)
|
|
|
|
|
|
19001 Crescent Springs Drive
|
|
|
|
Kingwood, Texas
|
|
77339-3802
|
|
(Address of Principal Executive Offices)
|
|
(zip code)
|
ADMINISTAFF, INC. 2008 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Daniel D. Herink
Senior Vice President of Legal, General Counsel and Secretary
Administaff, Inc.
19001 Crescent Springs Drive
Kingwood, Texas 77339-3802
(281) 358-8986
(Name, address and telephone number, including area code, of agent for service)
copy to:
Kelly B. Rose
Baker Botts L.L.P.
910 Louisiana
Houston, Texas 77002
(713) 229-1796
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in
Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
|
|
|
|
|
Large accelerated filer
þ
|
|
Accelerated filer
o
|
|
Non-accelerated filer
o
|
|
Smaller reporting company
o
|
|
|
|
(Do not check if a smaller reporting company)
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed
|
|
|
|
|
|
|
|
|
|
|
|
Amount
|
|
|
|
Proposed maximum
|
|
|
|
maximum
|
|
|
|
Amount of
|
|
|
|
|
|
|
|
to be
|
|
|
|
offering price per
|
|
|
|
aggregate offering
|
|
|
|
registration
|
|
|
|
|
Title of securities to be registered
|
|
|
registered (2)
|
|
|
|
share (1)
|
|
|
|
price (1)
|
|
|
|
fee (3)
|
|
|
|
|
Common stock, par value $.01 per share (2)(3)
|
|
|
1,500,000 shares
|
|
|
$26.56
|
|
|
|
$39,840,000
|
|
|
|
$1,565.71
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h)
under the Securities Act, based on the average of the high and low prices of the common stock
of Administaff, Inc. reported on the New York Stock Exchange Composite Tape on May 27, 2008.
|
|
|
|
(2)
|
|
Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration
Statement shall also include such additional indeterminate number of shares of common stock as
may become issuable under the Administaff, Inc. 2008 Employee Stock Purchase Plan as a result
of stock splits, stock dividends or similar transactions.
|
|
|
|
(3)
|
|
Includes associated preferred stock purchase rights. No separate consideration is payable
for the preferred stock purchase rights. Therefore, the registration fee for such securities
is included in the registration fee for the common stock.
|
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the employee benefit plan information required by Item 1 of
Form S-8 and the statement of availability of Registrant information and any other information
required by Item 2 of Form S-8 will be sent or given to participants as specified by Rule 428 under
the Securities Act of 1933, as amended (the “Securities Act”). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the Securities and
Exchange Commission (the “Commission”) either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. The
Registrant shall maintain a file of such documents in accordance with the provisions of Rule 428.
Upon request, the Registrant shall furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
There are also registered hereunder such additional indeterminate shares of the Registrant’s
common stock as may be required as a result of stock splits, stock dividends or similar
transactions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3
.
Incorporation of Documents by Reference.
This registration statement incorporates herein by reference the following documents which
have been filed with the Commission by the Company pursuant to the Securities Exchange Act of 1934,
as amended (the “Exchange Act”):
1. The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007.
2. The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2008.
3. The summary of the rights to purchase preferred stock and the description of the Company’s
Series A Junior Participating Preferred Stock, par value $0.01 per share, contained in the
Company’s Registration Statement on Form 8-A filed with the Commission on February 5, 1998 and as
subsequently amended on May 19, 1999, August 9, 1999, May 16, 2003, August 22, 2003, February 25,
2004, March 1, 2006 and November 16, 2007.
4. The description of the Company’s common stock, par value $0.01 per share, contained in the
Company’s Registration Statement on Form 8-A filed with the Commission on October 6, 1995.
Each document filed with the Commission by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold, or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing such documents.
Any statement contained in this Registration Statement, in an amendment hereto or in a
document incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein or in any
subsequently filed amendment to this Registration Statement or in any document that also is
incorporated by reference herein modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
The consolidated financial statements included in the Registrant’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2007, have been so incorporated in reliance on the audit
report and attestation report of Ernst & Young LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
1
Item 4
.
Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Delaware Code
The Company is incorporated under the laws of the State of Delaware. Section 145 (“Section
145”) of Title 8 of the Delaware Code gives a corporation power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation) by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe the person’s
conduct was unlawful.
Section 145 also gives a corporation power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the fact that the person
is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper. Section 145 further provides that, to the extent
that a present or former director or officer of a corporation has been successful on the merits or
otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection therewith.
Section 145 provides that expenses (including attorneys’ fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it is ultimately determined that such person is not entitled to be indemnified by
the corporation as authorized by Section 145. Such expenses (including attorneys’ fees) incurred
by former directors and officers or other employees and agents may be so paid upon such terms and
conditions, if any, as the corporation deems appropriate.
Section 145 also authorizes a corporation to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any liability asserted
against such person and incurred by such person in any such capacity, arising out of such person’s
status as such, whether or not the corporation would otherwise have the power to indemnify such
person against such liability under Section 145.
2
The above discussion of Section 145 is not intended to be exhaustive and is qualified in its
entirety by such statute.
Amended Bylaws
The Company’s Amended Bylaws (the “Bylaws”) provide for the indemnification of its officers,
directors, employees and agents and the advancement to them of expenses in connection with actions,
suits or proceedings, to the fullest extent permitted by law. The indemnification and advancement
of expenses provided by the Company’s Bylaws is not exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be or become entitled under any law, the
Company’s Certificate of Incorporation, the Company’s Bylaws, agreement, the vote of stockholders
or disinterested directors or otherwise, or under any policy or policies of insurance purchased and
maintained by the Company on behalf of any such person, both as to action in his official capacity
and as to action in another capacity while holding such office.
The indemnification provided by the Company’s Bylaws is subject to all valid and applicable
laws, and, in the event the Company’s Bylaws or any of the provisions thereof or the
indemnification contemplated thereby are found to be inconsistent with or contrary to any such
valid laws, the latter shall be deemed to control and the Company’s Bylaws shall be regarded as
modified accordingly, and, as so modified, to continue in full force and effect. The
indemnification and advancement of expenses provided by the Company’s Bylaws continues as to any
person who has ceased to be a director, officer, employee or agent of the Company and will inure to
the benefit of the estate, executors, administrators, heirs, legatees and devisees of any person
entitled to indemnification under the Company’s Bylaws.
The above discussion of the Company’s Bylaws is not intended to be exhaustive and is qualified
in its entirety by the Bylaws.
Insurance
All of the Company’s directors and officers will be covered by insurance policies maintained
by the Company against certain liabilities for actions taken in their capacities as such, including
liabilities under the Securities Act of 1933, as amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8
.
Exhibits.
The following documents are filed as a part of this Registration Statement or incorporated by
reference herein:
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
|
No.
|
|
|
|
Description
|
|
|
|
|
|
|
|
4.1
|
|
—
|
|
Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to
the Company’s Registration Statement on Form S-1 (No. 33-96952)).
|
|
|
|
|
|
|
|
4.2
|
|
—
|
|
Amended and Restated Bylaws of Administaff, Inc. dated November 13, 2007 (incorporated by
reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on November 16,
2007).
|
|
|
|
|
|
|
|
4.3
|
|
—
|
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the
Company’s Registration Statement on Form S-1 (No. 33-96952)).
|
|
|
|
|
|
|
|
4.4
|
|
—
|
|
Rights Agreement dated as of November 13, 2007 between Administaff, Inc. and Mellon
Investor Services, LLC, as Rights Agent (the “Rights Agreement”) (incorporated by reference
to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on November 16, 2007).
|
3
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
|
No.
|
|
|
|
Description
|
|
|
|
|
|
|
|
4.5
|
|
—
|
|
Certificate of Designations of Series A Junior Participating Preferred Stock of the Company
dated February 4, 1998 (incorporated by reference to Exhibit A to the Rights Agreement).
|
|
|
|
|
|
|
|
4.6
|
|
—
|
|
Form of Rights Certificate (incorporated by reference to Exhibit B to the Rights Agreement).
|
|
|
|
|
|
|
|
5.1*
|
|
—
|
|
Opinion of Baker Botts L.L.P.
|
|
|
|
|
|
|
|
10.1*
|
|
—
|
|
Administaff, Inc. 2008 Employee Stock Purchase Plan.
|
|
|
|
|
|
|
|
23.1*
|
|
—
|
|
Consent of Ernst & Young LLP.
|
|
|
|
|
|
|
|
24.1
|
|
—
|
|
Powers of Attorney (incorporated by reference to Exhibit 24.1 to the Registrant’s Form 10-K
for the year ended December 31, 2007).
|
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) of the Securities Act of 1933 if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any material
change to such information in this registration statement;
provided, however,
that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of
4
the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
provisions described under Item 6 above, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of
such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on May 30, 2008.
|
|
|
|
|
|
|
|
ADMINISTAFF, INC.
|
|
|
|
By:
|
/s/ Daniel D. Herink
|
|
|
|
|
Daniel D. Herink
|
|
|
|
|
Senior Vice President of Legal,
General Counsel and Secretary
|
|
|
|
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities indicated and on May 30, 2008.
|
|
|
|
/s/ Paul J. Sarvadi
Paul J. Sarvadi
|
|
Chairman of the Board, Chief Executive
Officer and
Director
(Principal Executive Officer)
|
|
|
|
|
/s/ Richard G. Rawson
Richard G. Rawson
|
|
President and Director
|
|
|
|
|
/s/ Douglas S. Sharp
Douglas S. Sharp
|
|
Senior Vice President of Finance,
Chief Financial
Officer
and Treasurer
(Principal Financial Officer)
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
*By:
|
/s/ Daniel D. Herink
|
|
|
|
|
Daniel D. Herink
|
|
|
|
|
Attorney-in-fact
|
|
|
EXHIBIT INDEX
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
|
No.
|
|
|
|
Description
|
|
|
|
|
|
|
|
4.1
|
|
—
|
|
Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to
the Company’s Registration Statement on Form S-1 (No. 33-96952)).
|
|
|
|
|
|
|
|
4.2
|
|
—
|
|
Amended and Restated Bylaws of Administaff, Inc. dated November 13, 2007 (incorporated by
reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on November 16,
2007).
|
|
|
|
|
|
|
|
4.3
|
|
—
|
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the
Company’s Registration Statement on Form S-1 (No. 33-96952)).
|
|
|
|
|
|
|
|
4.4
|
|
—
|
|
Rights Agreement dated as of November 13, 2007 between Administaff, Inc. and Mellon
Investor Services, LLC, as Rights Agent (the “Rights Agreement”) (incorporated by reference
to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on November 16, 2007).
|
|
|
|
|
|
|
|
4.5
|
|
—
|
|
Certificate of Designations of Series A Junior Participating Preferred Stock of the Company
dated February 4, 1998 (incorporated by reference to Exhibit A to the Rights Agreement).
|
|
|
|
|
|
|
|
4.6
|
|
—
|
|
Form of Rights Certificate (incorporated by reference to Exhibit B to the Rights Agreement).
|
|
|
|
|
|
|
|
5.1*
|
|
—
|
|
Opinion of Baker Botts L.L.P.
|
|
|
|
|
|
|
|
10.1*
|
|
—
|
|
Administaff, Inc. 2008 Employee Stock Purchase Plan.
|
|
|
|
|
|
|
|
23.1*
|
|
—
|
|
Consent of Ernst & Young LLP.
|
|
|
|
|
|
|
|
24.1
|
|
—
|
|
Powers of Attorney (incorporated by reference to Exhibit 24.1 to the Registrant’s Form 10-K
for the year ended December 31, 2007).
|
Exhibit 10.1
ADMINISTAFF, INC.
2008 EMPLOYEE STOCK PURCHASE PLAN
Adopted by the Board on February 8, 2008
Execution Copy
TABLE OF CONTENTS
|
|
|
|
|
|
|
SECTION 1. ESTABLISHMENT OF THE PLAN.
|
|
|
1
|
|
|
SECTION 2. DEFINITIONS.
|
|
|
1
|
|
|
SECTION 3. SHARES AUTHORIZED.
|
|
|
3
|
|
|
SECTION 4. ADMINISTRATION.
|
|
|
3
|
|
|
SECTION 5. ELIGIBILITY AND PARTICIPATION.
|
|
|
3
|
|
|
SECTION 6. OFFERING PERIODS.
|
|
|
4
|
|
|
SECTION 7. PURCHASE PRICE.
|
|
|
4
|
|
|
SECTION 8. EMPLOYEE CONTRIBUTIONS.
|
|
|
4
|
|
|
SECTION 9. PLAN ACCOUNTS; PURCHASE OF SHARES
|
|
|
4
|
|
|
SECTION 10. WITHDRAWAL FROM THE PLAN.
|
|
|
5
|
|
|
SECTION 11. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH.
|
|
|
6
|
|
|
SECTION 12. RIGHTS NOT TRANSFERABLE.
|
|
|
6
|
|
|
SECTION 13. RECAPITALIZATION, ETC
|
|
|
6
|
|
|
SECTION 14. LIMITATION ON STOCK OWNERSHIP
|
|
|
6
|
|
|
SECTION 15. NO RIGHTS AS AN EMPLOYEE.
|
|
|
7
|
|
|
SECTION 16. RIGHTS AS A SHAREHOLDER; SECURITIES LAWS
|
|
|
7
|
|
|
SECTION 17. USE OF FUNDS.
|
|
|
7
|
|
|
SECTION 18. AMENDMENT OR TERMINATION OF THE PLAN
|
|
|
7
|
|
|
SECTION 19. GOVERNING LAW.
|
|
|
8
|
|
|
SECTION 20. EXECUTION.
|
|
|
8
|
|
i
ADMINISTAFF, INC.
2008 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1
.
ESTABLISHMENT OF THE PLAN
.
The Administaff, Inc. 2008 Employee Stock Purchase Plan (the “Plan”) is hereby established to
provide Eligible Employees with an opportunity to increase their proprietary interest in the
success of the Company by purchasing Stock from the Company on favorable terms and to pay for such
purchases through payroll deductions. The Plan is intended to qualify for favorable tax treatment
under section 423 of the Code.
SECTION 2
.
DEFINITIONS
.
When used herein the following terms shall have the following meanings solely for purposes of
the Plan:
(a)
“Administrator”
means the Compensation Committee of the Board of Directors of the Company
or such other individual or individuals appointed by the Board or the Committee from time to time
to act as Administrator.
(b) “
Board
” means the Board of Directors of the Company.
(c) “
Code
” means the Internal Revenue Code of 1986, as amended.
(d) “
Company
” means Administaff, Inc., a Delaware corporation.
(e) “
Committee
” means the Compensation Committee of the Board.
(f) “
Compensation
” means the amount of compensation paid to an Eligible Employee by a
Participating Company as salary, wages or other amounts paid for personal services actually
rendered in the course of employment with the Participating Company to the extent includable in
gross income of the Eligible Employee, increased by amounts described in sections 125, 132, 401(k)
and 402A of the Code but excluding (a) contributions to and distributions from a plan of deferred
compensation, regardless of whether such amounts are includible in the gross income of the Eligible
Employee when contributed or distributed (as applicable); (b) amounts realized as a result of
participation in a Participating Company’s long-term incentive programs including, without
limitation, the exercise of stock options and upon the vesting of restricted stock; (c) other
amounts which receive special tax benefits, such as premiums for group-term life insurance,
(whether or not the contributions are excludable from the gross income of the Eligible Employee);
and (d) reimbursements or other expense allowances, fringe benefits (cash or non-cash), moving
expenses and welfare benefits. The Administrator shall determine whether a
particular item is included in Compensation and shall have the authority to amend the
definition of Compensation from time to time as it deems appropriate.
1
(g) “
Corporate Transaction
” means (i) any stock dividend, stock split, combination or exchange
of shares, recapitalization or other change in the capital structure of the Company; (ii) any
merger, consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial or complete
liquidation or other distribution of assets (other than a normal cash dividend) or issuance of
rights or warrants to purchase securities; or (iii) any other corporate transaction or event having
an effect similar to any of the foregoing.
(h) “
Eligible Employee
” means any common-law employee of a Participating Company who has been
an employee of a Participating Company for not less than one consecutive month (or such other
period of service as the Administrator may establish from time to time) before the beginning of the
applicable Offering Period. Notwithstanding the foregoing, any employee whose customary employment
is five or fewer months per calendar year or whose participation in the Plan is prohibited by the
law of any country that has jurisdiction over such employee is not an Eligible Employee and shall
not be eligible to participate in the Plan. The determination of whether an individual is an
Eligible Employee shall be made by the Administrator in its sole and absolute discretion.
(i) “
Fair Market Value
” means the fair market value of the Stock based on the closing price of
a share of Stock on the principal exchange on which the shares are trading, as determined in good
faith by the Administrator in its sole and absolute discretion, consistent with the requirements of
section 423 of the Code and income tax regulations promulgated thereunder. Whenever possible, the
determination of Fair Market Value by the Administrator shall be based on the prices reported in
The Wall Street Journal
or as reported directly to the Company by the applicable stock exchange.
Such determination shall be conclusive and binding on all persons.
(j) “
Offering Period
” means a period during which contributions may be made toward the
purchase of Stock under the Plan, as determined pursuant to Section 6.
(k) “
Participant
” means an Eligible Employee who elects to participate in the Plan, as
provided in Section 5.
(l) “
Participating Company
” means the Company and each Subsidiary designated by the Committee
or the Board; provided, however, a Subsidiary that is a licensed Professional Employer Organization
shall in no event qualify as a Participating Company.
(m) “
Plan Account
” means the bookkeeping account established for each Participant pursuant to
Section 9(a).
(n) “
Purchase Price
” means the price at which Participants may purchase Stock under Section 5,
as determined pursuant to Section 7.
(o) “
Stock
” means the Common Stock of the Company.
2
(p) “
Subsidiary
” means, with respect to the Company, a subsidiary corporation as defined in
section 424(f) of the Code.
SECTION 3
.
SHARES AUTHORIZED
.
The maximum aggregate number of shares which may be offered under the Plan shall be 1,500,000
shares of Stock, which number is subject to adjustment as provided in Section 13.
SECTION 4
.
ADMINISTRATION
.
The Committee shall have the discretionary power to construe, administer and interpret the
Plan and to resolve any ambiguities thereunder; to prescribe, amend and rescind administrative
rules relating to the Plan; to set the provisions which will determine an employee’s ability to
participate in the Plan and to take all other actions that are necessary or appropriate for
administration of the Plan. Such interpretations, rules and actions of the Committee shall be
final and binding upon all concerned and, in the event of judicial review, shall be entitled to the
maximum deference allowable by law. The Board or the Committee shall have the right to delegate
responsibility for construing, administering, or interpreting the Plan, including the establishment
of a claims procedure, to a designated officer or officers who shall act as an Administrator. Where
the Committee has delegated its responsibility for matters of construing, administering or
interpreting the Plan, including the establishment of a claims procedure, to an Administrator, the
actions of the Administrator shall constitute actions of the Committee.
SECTION 5
.
ELIGIBILITY AND PARTICIPATION
.
(a) Any person who qualifies or will qualify as an Eligible Employee on the first day of an
Offering Period may elect to participate in the Plan for such Offering Period by following the
procedures prescribed by the Administrator. Subject to Section 8, each Eligible Employee shall
designate the percentage of his or her Compensation which he or she elects to have withheld for the
purchase of Stock.
(b) By enrolling in the Plan, a Participant shall be deemed to have elected to purchase the
maximum number of shares of Stock which can be purchased with the amount of the Participant’s
Compensation which is withheld during the Offering Period, subject to any limitations imposed by
the Administrator pursuant to this Section 5 and Section 14.
(c) Once enrolled, a Participant will continue to participate in the Plan based on his or her
most recent election under the Plan for each succeeding Offering Period until he or she terminates
participation or ceases to qualify as an Eligible Employee. A Participant who
withdraws from the Plan in accordance with Section 10 may again become a Participant, if he or
she then is an Eligible Employee, by following the procedures prescribed by the Administrator.
3
SECTION 6
.
OFFERING PERIODS
.
While the Plan is in effect, each Offering Period shall consist of a six-month period
commencing on January 1 or July 1 or a three-month period commencing on January 1, April 1, July 1
or October 1, as designated by the Administrator prior to the commencement of such Offering Period.
The initial Offering Period under the Plan shall be determined by the Administrator.
SECTION 7
.
PURCHASE PRICE
.
The Purchase Price for each share of Stock purchased at the close of an Offering Period shall
be 95% (or such other percentage that is not lower than 85% as designated by the Administrator
prior to the commencement of an Offering Period) of the Fair Market Value of such share on the last
trading day in such Offering Period.
SECTION 8
.
EMPLOYEE CONTRIBUTIONS
.
(a) A Participant may purchase shares of Stock solely by means of payroll deductions. Payroll
deductions, as designated by the Participant pursuant to Section 5(a), shall commence as soon as
administratively practicable after completion of the procedures prescribed by the Administrator. An
Eligible Employee shall designate the portion of his or her Compensation that he or she elects to
have withheld for the purchase of Stock. The portion shall be a whole percentage of Compensation
but not less than 1% nor more than 30%. Such percentage limits are subject to change by the
Administrator, at any time and for any reason, without notice to Participants.
(b) If a Participant desires to decrease the rate of payroll withholding or to discontinue
contributions during the Offering Period, he or she may do so, if permitted by the Administrator,
by following the procedures prescribed by the Administrator. Such decrease will be effective as
soon as administratively practicable after completion of the procedures prescribed by the
Administrator. No Participant shall make more than two elections under this Section 8(b) during
each Offering Period. The limit on the number of changes permitted under this Section 8(b) is
subject to change by the Administrator, at any time and for any reason, without notice to
Participants.
(c) If a Participant desires to increase the rate of payroll withholding, he or she may do so
effective for the next Offering Period by following the procedures prescribed by the Administrator.
SECTION 9
.
PLAN ACCOUNTS; PURCHASE OF SHARES
.
(a) The Company will maintain a non-interest bearing Plan Account on its books in the name of
each Participant. At the close of each pay period, the amount deducted from the Participant’s
Compensation will be credited to the Participant’s Plan Account.
4
(b) Following the purchase of the shares, the shares will be credited in book entry form as
soon as practicable after each purchase date to an account administered by a designated custodian
which is a brokerage firm, bank or financial institution, to be held for the benefit of the
Participant. A Participant may, at any time, in such form and manner as established by the
custodian, direct the custodian to deliver to the Participant all or part of the shares held by the
custodian in his or her account or to sell such shares and deliver to the Participant the proceeds
therefrom, less applicable expenses; provided, however, that the Administrator may establish
procedures to permit tracking of disqualifying dispositions of the shares.
(c) In the event that the aggregate number of shares which all Participants elect to purchase
during an Offering Period shall exceed the number of shares remaining available for issuance under
the Plan, then the number of shares to which each Participant shall become entitled shall be
determined by multiplying the number of shares available for issuance by a fraction. The numerator
of such fraction is the number of shares the Participant has elected to purchase pursuant to
Section 5. The denominator of such fraction is the number of shares that all Participants have
elected to purchase pursuant to Section 5. Any cash amount remaining in the Participant’s Plan
Account under these circumstances shall be distributed to the Participant.
(d) An amount remaining in the Participant’s Plan Account that represents the purchase price
for any fractional share shall be carried over in the Participant’s Plan Account to the next
Offering Period. Any amount remaining in the Participant’s Plan Account for any other reason shall
be refunded to the Participant in cash, without interest.
(e) As soon as practicable following the end of each Offering Period, the Company shall
deliver to each Participant a Plan Account statement setting forth the amount of payroll
deductions, the purchase price, the number of shares purchased and the remaining cash balance, if
any.
(f) Any other provision of the Plan notwithstanding, no shares of Stock shall be purchased
under the Plan unless and until the Company’s stockholders have approved the adoption of the Plan.
SECTION 10
.
WITHDRAWAL FROM THE PLAN
.
A Participant may elect to withdraw from participation under the Plan at any time up to the
fifteenth day of the last month of an Offering Period (or such other date specified by the
Administrator) by following the procedures prescribed by the Administrator. As soon as
administratively practicable after a withdrawal, payroll deductions shall cease and all amounts
credited to the Participant’s Plan Account will be distributed to the Participant in cash, without
interest. No partial withdrawals shall be permitted. A Participant who has withdrawn from the Plan
shall not be a Participant in future Offering Periods, unless he or she again enrolls in accordance
with the provisions of Section 5 and re-enrollment may be effective only at the commencement of an
Offering Period.
5
SECTION 11
.
EFFECT OF TERMINATION OF EMPLOYMENT
.
Termination of employment as an Eligible Employee for any reason, including death, shall be
treated as an automatic withdrawal from the Plan under Section 10. A transfer from one
Participating Company to another shall not be treated as a termination of employment.
SECTION 12
.
RIGHTS NOT TRANSFERABLE
.
The rights or interests of any Participant in the Plan, or in any Stock or cash to which he or
she may be entitled under the Plan, shall not be transferable by voluntary or involuntary
assignment or by operation of law, or by any other manner other than as permitted by the Code or by
will or the laws of descent and distribution. If a Participant in any manner attempts to transfer,
assign or otherwise encumber his or her rights or interest under the Plan, other than as permitted
by the Code or by will or the laws of descent and distribution, such act shall be treated as an
automatic withdrawal under Section 10.
SECTION 13
.
RECAPITALIZATION, ETC
.
(a) In the event of a Corporate Transaction, other than a Corporate Transaction in which the
Company is not the surviving corporation, the number and kind of shares of stock or securities of
the Company to be subject to the Plan, the maximum number of shares or securities that may be
delivered under the Plan, and the selling price and other relevant provisions of the Plan will be
appropriately adjusted by the Committee or the Board. If the Company is a party to a Corporate
Transaction in which the Company is not the surviving corporation, the Committee may take such
actions with respect to the Plan as the Committee deems appropriate. Any adjustments under this
Section 13(a) will be made in accordance with the requirements of sections 423 and 409A of the
Code.
(b) The Plan shall in no event be construed to restrict in any way the Company’s right to
undertake a dissolution, liquidation, merger, consolidation or other reorganization.
SECTION 14
.
LIMITATION ON STOCK OWNERSHIP
.
(a) Any other provision of the Plan notwithstanding, no Participant shall be granted a right
to purchase Stock under the Plan if such Participant, immediately after his or her election to
purchase such Stock, would own stock possessing more than 5% of the total combined voting power or
value of all classes of stock of the Company or any Subsidiary of the Company. For purposes of this
Section 14(a), the following rules shall apply:
(i) Ownership of stock shall be determined after applying the attribution rules of
section 424(d) of the Code; and
6
(ii) Each Participant shall be deemed to own any stock that he or she has a right or
option to purchase under this or any other plan.
(b) Any other provision of the Plan notwithstanding, no Participant shall purchase Stock with
a Fair Market Value in excess of $25,000 per calendar year (under this Plan and all other employee
stock purchase plans of the Company or any Subsidiary of the Company). For purposes of this Section
14(b), the Fair Market Value of Stock shall be determined in each case as of the beginning of the
Offering Period in which such Stock is purchased. Employee stock purchase plans not described in
section 423 of the Code shall be disregarded.
SECTION 15
.
NO RIGHTS AS AN EMPLOYEE
.
Nothing in the Plan shall be construed to give any person the right to remain in the employ of
a Participating Company. Each Participating Company reserves the right to terminate the employment
of any person at any time and for any reason, with or without cause.
SECTION 16
.
RIGHTS AS A SHAREHOLDER; SECURITIES LAWS
.
(a) A Participant shall have no rights as a stockholder with respect to any shares he or she
may have a right to purchase under the Plan until the date such shares are actually purchased for
the Participant’s account on the last day of the applicable Offering Period, subject to the
stockholders’ approval of the adoption of the Plan.
(b) Shares of Stock shall not be issued under the Plan unless the issuance and delivery of
such shares comply with (or are exempt from) all applicable requirements of law, including (without
limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, state securities laws and regulations, and the regulations of any stock exchange or
other securities market on which the Company’s securities may then be traded.
SECTION 17
.
USE OF FUNDS
.
All payroll deductions received or held by the Company under the Plan may be used by the
Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll
deductions in separate accounts.
SECTION 18
.
AMENDMENT OR TERMINATION OF THE PLAN
.
The Board or the Committee shall have the right to amend, modify or terminate the Plan at any
time without notice, including, without limitation the terms of any offering under the Plan. The
Administrator shall have the right to amend the Plan to comply with applicable rules and
regulations or to facilitate the administration of the Plan provided that such amendment does not
materially increase the cost of the Plan. An amendment of the Plan shall be subject to shareholder
approval only to the extent required by applicable laws, regulations or rules.
7
SECTION 19
.
GOVERNING LAW
.
The Plan and any actions taken in connection herewith shall be governed by and construed in
accordance with the laws of the state of Texas (without regard to applicable Delaware principles of
conflict of laws).
SECTION 20
.
EXECUTION
.
To record the adoption of the Plan by the Board on February 8, 2008, the Company has caused
its duly authorized officer to execute this document in the name of the Company.
|
|
|
|
|
|
|
|
ADMINISTAFF, INC.
|
|
|
|
By:
|
/s/ Paul J. Sarvadi
|
|
|
|
|
Paul J. Sarvadi
|
|
|
|
|
|
Its:
|
Chief Executive Officer
|
|
|
|
Dated: February 8, 2008
8
