As filed with the Securities and Exchange Commission on June 15,
2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
HIREQUEST, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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91-2079472
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(State
or other jurisdiction of incorporation or
organization)
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(I.R.S.
employer identification no.)
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111 Springhall Drive, Goose Creek, SC 29445
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(Address of principal executive offices, including
zip code)
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HireQuest,
Inc.
2019 Equity Incentive Plan
(Full title of the
plan)
John D. McAnnar
General Counsel
111 Springhall Drive
Goose Creek, SC 29445
(843)
723-7400
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Roland S. Chase
Zachary W. Watt
Hill Ward Henderson
101 E. Kennedy Blvd., Suite 3700
Tampa, Florida 33602
(813) 221-3900
Indicate
by check mark whether the registrant is a large accelerated file,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act. Large accelerated filer ☐,
Accelerated filer ☐, Non-accelerated
filer ☑, Smaller reporting company
☑, Emerging growth company ☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title
of Each Class of Securities to be Registered
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Amount
to be Registered(1)
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Proposed
Maximum Offering Price Per Unit(2)
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Proposed
Maximum Aggregate Offering Price (2)
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Amount
of Registration Fee
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Common
Stock, par value $0.001 per share
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1,500,000
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$6.27
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$9,405,000
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$1,221
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(1)
Pursuant
to Rule 416(a) under the Securities Act of 1933, as
amended (the “Securities Act”), this registration
statement shall also cover any additional shares of the common
stock of HireQuest, Inc. (the “Registrant”) that become
issuable under the Registrant’s 2019 Equity Incentive Plan by
reason of any stock dividend, stock split, recapitalization or
similar transaction effected without the Registrant’s receipt
of consideration which would increase the number of outstanding
shares of common stock.
(2)
Estimated in
accordance with Rule 457(c) and 457(h) under the Securities Act
solely for purposes of calculating the registration fee. The
maximum price per security and the maximum aggregate offering price
are based on the average of the $6.31 (high) and $6.23 (low) sale
price of the Registrant’s Common Stock as reported on the
NASDAQ on June 8, 2020, which date is within five business days
prior to filing this registration statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I
will be sent or given to employees, officers, directors, or others
as specified by Rule 428(b)(1) under the Securities Act of 1933, as
amended (the “Securities Act”). In accordance with the
rules and regulations of the Securities and Exchange Commission
(the “Commission”) and the instructions to Form S-8,
such documents are not being filed with the Commission either as
part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities Act.
Such documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II hereof, taken
together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
HireQuest,
Inc. (the “registrant”) hereby incorporates by
reference the following documents filed with the
Commission:
(1)
The
registrant’s Annual Report on Form 10-K for the year ended
December 31, 2019, filed with the Commission on March 30,
2020;
(2)
The
registrant’s Quarterly Report on Form 10-Q for the quarter
ended March 31, 2020, filed with the Commission on May 11,
2020;
(3)
The
registrant’s Current Reports on Form 8-K filed with the
Commission on January 21, 2020 and April 7, 2020;
and
(4)
The description of
the registrant’s securities contained in Exhibit 4.2 to the
registrant’s Annual Report on Form 10-K for the year ended
December 31, 2019, filed with the Commission on March 30, 2020,
including any amendments or reports filed for the purpose of
updating such description.
All
documents subsequently filed by the registrant with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)
(other than documents or portions of documents deemed to be
furnished pursuant to the Exchange Act), prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold, or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
herein and to be made a part hereof from the date of filing of such
documents. The registrant is not, however, incorporating by
reference any documents or portions thereof that are not deemed
"filed" with the SEC, including any information furnished pursuant
to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished
pursuant to Item 9.01 of Form 8-K.
Any
statement contained herein or in a document incorporated or deemed
to be 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 document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this registration statement.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interest of Named Experts and Counsel.
Not
applicable.
Item 6. Indemnification of Directors and Officers.
Section 102 of the General Corporation Law of the State of
Delaware (“DGCL”) permits a corporation to eliminate
the personal liability of directors of a corporation to the
corporation or its stockholders for monetary damages for a breach
of fiduciary duty as a director, except where the director breached
his or her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation
of Delaware law, or obtained an improper personal benefit. The
registrant's bylaws state that none of its directors shall be
personally liable to the registrant or its stockholders for
monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability,
except to the extent that the DGCL prohibits the elimination or
limitation of liability of directors for breaches of fiduciary
duty.
Section 145 of the DGCL provides that a corporation has the
power to indemnify a director, officer, employee, or agent of the
corporation, or a person serving at the request of the corporation
for another corporation, partnership, joint venture, trust or other
enterprise in related capacities, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in
connection with an action, suit or proceeding to which he or she
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by
reason of such position, if such person acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal action
or proceeding, had no reasonable cause to believe his or her
conduct was unlawful, except that, in the case of actions brought
by or in the right of the corporation, no indemnification shall be
made with respect to 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 Court of Chancery or other
adjudicating court determines that, despite the
adjudication of liability but in
view of all of the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem
proper.
The registrant’s certificate of incorporation provides that
it shall indemnify, to the fullest extent permitted by applicable
law, any of its directors or officers 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 (a “Proceeding”) by
reason of the fact that he or she is or was a director, officer,
employee or agent of the registrant or is or was serving at the
request of the registrant as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any such
Proceeding. The registrant shall be required to indemnify a person
in connection with a Proceeding initiated by such person only if
the Proceeding was authorized by the Board of Directors. The
registrant shall have the power to indemnify, to the extent
permitted by applicable law, any employee or agent of the
registrant who was or is a party or is threatened to be made a
party to any Proceeding by reason of the fact that he or she is or
was a director, officer, employee or agent of the registrant or is
or was serving at the request of the registrant as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with any such Proceeding.
Article
8 of the registrant’s bylaws provides that it will indemnify,
to the fullest extent authorized by the DGCL, each person who was
or is made a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that he or she is or was a director or officer of the registrant,
if such person acted in good faith and in a manner such 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 such person’s
conduct was unlawful.
In
addition to the above, the registrant has entered into
indemnification agreements with each of its directors and officers.
These indemnification agreements provide the registrant’s
directors and officers with the same indemnification and
advancement of expenses as described above, and provide that its
directors and officers will be indemnified to the fullest extent
authorized by any future Delaware law that expands the permissible
scope of indemnification. The registrant also has directors’
and officers’ liability insurance, which provides coverage
against certain liabilities that may be incurred by the
registrant’s directors and officers in their capacities as
directors and officers of the registrant.
Disclosure of SEC Position on Indemnification for Securities Act
Liabilities
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company, the registrant has been informed that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
The
exhibit index attached hereto is incorporated herein by
reference.
Item
9. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(A)
To
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(B)
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 this 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) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the ”Calculation of Registration
Fee” table in the effective registration statement;
and
(C)
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 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 reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this
registration statement.
Provided,
however, that paragraphs (1)(A)
and (1)(B) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Act that
are incorporated by reference in this registration
statement.
(2)
That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment to 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.
(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,
each filing of the registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated
by reference in the 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
may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act 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 whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
INDEX TO
EXHIBITS
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Exhibit
No.
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Description
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Form of
Common Stock Share Certificate (incorporated by reference to
Exhibit 4.1 to the Company’s Annual Report on Form 10-K,
filed with the Commission on March 20, 2020).
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Opinion
of Hill, Ward & Henderson, P.A.
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List of
Subsidiaries of the Company (incorporated by reference to Exhibit
21.1 to the Company’s Annual Report on Form 10-K, filed with
the Commission on March 30, 2020).
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Consent
of Hill, Ward & Henderson, P.A. (included in Exhibit 5.1 filed
herewith).
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Consent
of Plante & Moran, PLLC.
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Power
of Attorney (included on the signature page to this registration
statement).
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HireQuest,
Inc. 2019 Equity Incentive Plan (incorporated by reference to
Appendix A of the Company’s Definitive Proxy Statement on
Schedule 14A filed with the Commission on April 29,
2020).
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Form of
Restricted Share Award Agreement
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SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 Goose Creek, South
Carolina, on June 15, 2020.
HIREQUEST, INC.
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/s/ Richard F. Hermanns
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Richard F. Hermanns
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June 15, 2020
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Signature
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Printed Name
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Date
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President, Chief Executive Officer, Chairman
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(Principal
Executive Officer)
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Each person whose signature appears below hereby authorizes and
appoints Richard Hermanns and John McAnnar, and each of them, with
full power of substitution and resubstitution and full power to act
without the other, as his true and lawful attorney-in-fact and
agent to act in his name, place and stead and to execute in the
name and on behalf of each person, individually and in each
capacity stated below, and to file any and all amendments to this
registration statement on Form S-8 (including post-effective
amendments), and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing, ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their or his substitute or substitutes may
lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
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/s/ Richard F. Hermanns
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Richard F. Hermanns
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June 15, 2020
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Signature
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Printed Name
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Date
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President,
Chief Executive Officer, Chairman
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(Principal
Executive Officer)
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/s/
Cory Smith
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JD Smith
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June 15, 2020
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Signature
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Printed Name
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Date
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Treasurer, Chief Financial Officer
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(Principal Financial and Accounting Officer)
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/s/ R. Rimmy Malhotra
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R. Rimmy Malhotra
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June 15, 2020
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Director
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Printed Name
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Date
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/s/ Kathleen Shanahan
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Kathleen Shanahan
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June 15, 2020
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Director
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Printed Name
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Date
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/s/ Payne Brown
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Payne Brown
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June 15, 2020
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Director
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Printed Name
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Date
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/s/ Lawrence Hagenbuch
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Lawrence Hagenbuch
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June 15, 2020
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Director
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Printed Name
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Date
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/s/ Edward Jackson
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Edward Jackson
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June 15, 2020
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Director
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Printed Name
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Date
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/s/ Jack A. Olmstead
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Jack A. Olmstead
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June 15, 2020
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Director
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Printed Name
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Date
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[HWH
Letterhead]
Exhibit 5.1
June
15, 2020
HireQuest,
Inc.
111
Springhall Drive
Goose
Creek, South Carolina 29445
Re:
Registration Statement on Form S-8
Ladies
and Gentlemen:
In our
capacity as counsel to HireQuest, Inc., a Delaware corporation (the
“Company”), we have been asked to render this opinion
in connection with the registration statement on Form S-8 (the
“Registration Statement”), filed by the Company with
the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as
amended (the “Act”), relating to the offering and sale
of up to 1,500,000 shares (the “Shares”) of common
stock, par value $0.001 per share, of the Company (the
“Common Stock”), issuable pursuant to stock options,
stock appreciation rights, restricted stock awards, restricted
stock units, performance share awards, and other equity-based
awards (collectively, the “Awards”) granted or to be
granted under the Company’s 2019 Equity Incentive Plan (the
“Plan”). We are delivering this opinion to you at your
request in accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Act.
In
connection with rendering this opinion, we have examined and are
familiar with (i) the Company’s Certificate of Incorporation,
filed with the Delaware Secretary of State on September 9, 2019
(the “Charter”), (ii) the Company’s Bylaws,
effective September 11, 2019 (the “Bylaws”), (iii)
the Plan, (iv) the Registration Statement, and (v) such
other documents and records as we have deemed necessary to enable
us to render this opinion.
In
making the aforesaid examinations, we have assumed that
(a) the Company will at all times
reserve a sufficient number of shares of its unissued Common Stock
as is necessary to provide for the issuance of the Shares,
(b) all signatures on documents examined by us are genuine,
(c) all documents submitted to us as originals, and the
originals of all documents submitted to us as copies, are
authentic, (d) all documents submitted to us as copies conform
with the originals of those documents, (e) all documents
submitted to us are complete, (f) the Charter and the Bylaws
are in full force and effect, have not been amended and no
amendment of such documents is pending or has been proposed, (g)
each party that has executed a
document reviewed by us has the legal capacity to execute and
deliver such document, and (h) the representations of officers and
employees given to us in connection with this opinion are correct
as to questions of fact.
Based
upon the foregoing and subject to the assumptions and
qualifications set forth herein, we are of the opinion that the
Shares have been duly authorized and
that, subsequent to the Registration Statement becoming
effective under the Act, when the
Shares are issued upon full payment therefor in accordance with the
terms of the Plan and any Awards made under the Plan, the Shares
will be validly issued, fully paid and
non-assessable.
This
opinion is limited to the Act and the Delaware General Corporation
Law (the “DGCL”), and we have not considered and
express no opinion on any other laws, rules or regulations. Our
opinions are rendered only with respect to the Act and the DGCL in
effect as of the date hereof.
This
opinion letter speaks only as of the date hereof. We assume no
obligation to update or supplement this opinion letter if any
applicable laws change after the date hereof or if we become aware
of any facts or other developments, whether existing before or
first arising after the date hereof, that might change the opinions
expressed above.
We
hereby consent to the use of our opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby
admit that we come within the category of persons whose consent is
required under Section 7 of the Act, or the rules and regulations
of the Commission thereunder.
Sincerely,
/s/
Hill, Ward & Henderson, P.A.
HILL,
WARD & HENDERSON, P.A.
RESTRICTED SHARES AWARD AGREEMENT
This Restricted Shares Award Agreement (this
“Agreement”) is made and entered into as of
__________________ (the “Grant Date”) by and between HireQuest, Inc., a
Delaware corporation (the “Company”) and __________________(the
“Director”).
WHEREAS, the Company has
adopted the HireQuest, Inc. 2019 Equity Incentive Plan (the
“Equity Incentive
Plan”) under which awards
of Restricted Shares may be granted; and
WHEREAS, the Company has
adopted the 2019 HireQuest, Inc. Non-Employee Director Compensation
Plan (the “Director Compensation
Plan”);
and
WHEREAS, the Compensation
Committee and Board of Directors of the Company have determined
that it is in the best interests of the Company and its
shareholders to grant the award of Restricted Shares provided for
herein.
NOW, THEREFORE, the parties
hereto, intending to be legally bound, agree as
follows:
1. Grant
of Restricted Shares. Pursuant
to Section 7.2 of the Equity Incentive Plan, entitled Restricted
Awards, the Company hereby issues to the Director on the Grant Date
a Restricted Shares Award consisting of, in the aggregate, ______
shares of Common Stock of the Company (the "Restricted
Shares"), on the terms and
conditions and subject to the restrictions set forth in this
Agreement, the Director Compensation Plan, and the Equity Incentive
Plan. Capitalized terms that are used but not defined herein have
the meaning ascribed to them in the Equity Incentive Plan or the
Director Compensation Plan, as the case may be.
2. Consideration.
The grant of the Restricted Shares is made in consideration of the
services already rendered and to be rendered by the Director to the
Company.
3. Restricted Period;
Vesting.
3.1 Except
as otherwise provided herein, provided that the Director does not
experience a Separation from Service prior to the applicable
vesting date the Restricted Shares will vest in accordance with the
following schedule:
The period over which the Restricted Shares vest
is referred to as the "Restricted
Period". If any vesting date,
as set forth above, would otherwise occur during a blackout period
pursuant to the Company’s Insider Trading Policy, said shares
shall vest on the first day immediately following the end of the
blackout period.
3.2 Except
as otherwise provided herein, if the Director experiences a
Separation from Service before the Restricted Shares vest, then the
unvested portion of the Restricted Shares shall be automatically
forfeited.
3.3 The
foregoing vesting schedule notwithstanding, if the Director’s
service is involuntarily terminated other than for Cause and the
Director’s termination date occurs within 12 months following
the occurrence of a Change in Control, 100% of the unvested
Restricted Shares shall vest as of the date of the Director’s
termination of service.
4. Restrictions.
Subject to any exceptions set forth in this Agreement, the Director
Compensation Plan, and the Equity Incentive Plan, during the
Restricted Period, the Restricted Shares or the rights relating
thereto may not be assigned, alienated, pledged, attached, sold or
otherwise transferred or encumbered by the Director. Any attempt to
assign, alienate, pledge, attach, sell or otherwise transfer or
encumber the Restricted Shares or the rights relating thereto
during the Restricted Period shall be wholly ineffective and, if
any such attempt is made, the Restricted Shares will be forfeited
by the Director and all of the Director's rights to such shares
shall immediately terminate without any payment or consideration by
the Company.
5. Rights
as Shareholder; Dividends.
5.1 During
the Restricted Period, the Director shall have the right to vote
the Restricted Shares. In addition, the Director’s Restricted
Share Account shall be credited with stock equivalent to all
dividends paid by the Company during the Restricted Period. Said
dividends are subject to vesting of the Restricted Shares and shall
be forfeited in the event that the Restricted Shares do not vest
for any reason.
5.2 The
Company may, but shall not be required to, issue stock certificates
or evidence the Director's interest by using a restricted book
entry account with the Company's transfer agent. Physical
possession or custody of any stock certificates that are issued
shall be retained by the Company until such time as the Restricted
Shares vests.
5.3 If
the Director forfeits any rights he or she has under this Agreement
in accordance with Section 4 of this Agreement, the Director shall,
on the date of such forfeiture, no longer have any rights as a
shareholder with respect to the Restricted Shares and any stock
paid as dividends with respect to the Restricted Shares, and shall
no longer be entitled to vote or receive dividends on such
shares.
6. No
Right to Continued Service on the Board. Neither the Equity Incentive Plan, the Director
Compensation Plan, nor this Agreement shall confer upon the
Director any right to be retained as a Director of the Company or
in any other capacity. Further, nothing in the Equity Incentive
Plan, the Director Compensation Plan, or this Agreement shall be
construed to limit the discretion of the Company to terminate the
Director's Continuous Service at any time.
7. Adjustments.
If any change is made to the outstanding Common Stock or the
capital structure of the Company, if required, the shares of Common
Stock shall be adjusted or terminated in any manner as contemplated
by Section 11 of the Equity Incentive Plan, entitled Adjustments
Upon Changes in Stock.
8. Tax
Liability and Withholding.
8.1 As
a condition to the issuance of any Restricted Shares, the Company
may withhold, or require the Director to pay or reimburse the
Company for, any taxes which the Company determines are required to
be withheld under federal, state or local law in connection with
the grant or vesting of the Restricted Shares.
8.2 Notwithstanding
any action the Company takes with respect to any or all income tax,
social insurance, payroll tax, or other tax-related withholding
("Tax-Related
Items"), the ultimate liability
for all Tax-Related Items is and remains the Director's
responsibility and the Company (a) makes no representation or
undertakings regarding the treatment of any Tax-Related Items in
connection with the grant or vesting of the Restricted Shares or
the subsequent sale of any shares and (b) does not commit to
structure the Restricted Shares to reduce or eliminate the
Director's liability for Tax-Related Items.
9. Compliance
with Law. The issuance and
transfer of shares of Common Stock shall be subject to compliance
by the Company and the Director with all applicable requirements of
federal and state securities laws and with all applicable
requirements of any stock exchange on which the Company's shares of
Common Stock may be listed. No shares of Common Stock shall be
issued or transferred unless and until any then applicable
requirements of state and federal laws and regulatory agencies have
been fully complied with to the satisfaction of the Company and its
counsel. The Director understands that the Company is under no
obligation to register the shares of Common Stock with the
Securities and Exchange Commission, any state securities commission
or any stock exchange to effect such
compliance.
10. Legends.
A legend may be placed on any certificate(s) or other document(s)
delivered to the Director indicating restrictions on
transferability of the Restricted Shares pursuant to this Agreement
or any other restrictions that the Committee may deem advisable
under the rules, regulations and other requirements of the
Securities and Exchange Commission, any applicable federal or state
securities laws or any stock exchange on which the shares of Common
Stock are then listed or quoted.
11. Notices.
Any notice required to be delivered to the Company under this
Agreement shall be in writing and addressed to the Secretary of the
Company at the Company's principal corporate offices. Any notice
required to be delivered to the Director under this Agreement shall
be in writing and addressed to the Director at the Director's
address as shown in the records of the Company. Either party may
designate another address in writing (or by such other method
approved by the Company) from time to time.
12. Governing
Law. This Agreement will be
construed and interpreted in accordance with the laws of the State
of Delaware without regard to conflict of law
principles.
13. Interpretation.
Any dispute regarding the interpretation of this Agreement shall be
submitted by the Director or the Company to the Board of Directors
for review. The resolution of such dispute by the Board of
Directors shall be final and binding on the Director and the
Company.
14. Restricted
Shares Subject to Equity Incentive Plan. This Agreement is subject to the Equity
Incentive Plan as approved by the Company's shareholders. The terms
and provisions of the Equity Incentive Plan as it may be amended
from time to time are hereby incorporated herein by reference. In
the event of a conflict between any term or provision contained
herein and a term or provision of the Equity Incentive Plan, the
applicable terms and provisions of the Equity Incentive Plan will
govern and prevail. In the event of a conflict between any term or
provision contained herein and a term or provision of the Director
Compensation Plan, the Director Compensation Plan will govern and
prevail. In the event of a conflict between any term or provision
contained in the Director Compensation Plan and the Equity
Incentive Plan, the Equity Incentive Plan will govern and
prevail.
15. Section
409A.
This Agreement is intended to comply
with the requirements of Section 409A, to the extent applicable,
and shall be interpreted accordingly. Notwithstanding the
foregoing, the Company makes no representations or covenants that
any compensation paid or awarded under this Agreement will comply
with Section 409A.
16. Successors
and Assigns. The Company may
assign any of its rights under this Agreement. This Agreement will
be binding upon and inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer set
forth herein, this Agreement will be binding upon the Director and
the Director's beneficiaries, executors, administrators and the
person(s) to whom the Restricted Shares may be transferred by will
or the laws of descent or distribution.
17. Severability.
The invalidity or unenforceability of any provision of the Equity
Incentive Plan, the Director Compensation Plan, or this Agreement
shall not affect the validity or enforceability of any other
provision of the Equity Incentive Plan, the Director Compensation
Plan, or this Agreement, and each provision of the Equity Incentive
Plan, the Director Compensation Plan, and this Agreement shall be
severable and enforceable to the extent permitted by
law.
18. Discretionary
Nature of Equity Incentive Plan. The Equity Incentive Plan is discretionary and
may be amended, cancelled or terminated by the Company at any time,
in its discretion. The grant of the Restricted Shares in this
Agreement does not create any contractual right or other right to
receive any Restricted Shares or other Awards in the future. Future
Awards, if any, will be at the sole discretion of the Company. Any
amendment, modification, or termination of the Plan shall not
constitute a change or impairment of the terms and conditions of
the Director's membership on the Board.
19. Amendment.
The Board of Directors has the right to amend, alter, suspend,
discontinue or cancel the Restricted Shares, prospectively or
retroactively; provided,
that, no such amendment shall
adversely affect the Director's material rights under this
Agreement without the Director's consent.
20. Arbitration.
Any and all claims arising out of or
relating to this Agreement shall be resolved by binding
arbitration. Arbitration shall occur in Charleston, South Carolina.
Arbitration shall proceed pursuant to the rules of the American
Arbitration Association except where this agreement conflicts with
those rules. In case of conflict, the terms of this agreement shall
govern. A mutually agreeable neutral arbitrator shall be selected
by the parties from a list provided by the local office of the
American Arbitration Association in the Charleston, South Carolina
region. The arbitration proceedings and opinion shall be
confidential. The arbitration hearing shall occur within 120 days
of the date it is filed. Notwithstanding anything in the rules of
the American Arbitration Association, the parties shall be allowed
to engage in discovery according to the following rules: each party
shall serve all interrogatories and requests for documents within
30 days of filing the arbitration. Each party shall be limited to
10 interrogatories and 5 document requests. Discovery shall be
fully responded to within 30 days of receipt. The parties may each
take 1 deposition including the deposition of an opposing party. No
other discovery shall be allowed except upon written motion to the
arbitrator. The arbitrator shall issue a written opinion including
findings of fact and conclusions of law within thirty days of the
conclusion of the arbitration hearing. The arbitrator may award any
relief, legal or equitable, to either party available under law or
which may be awarded by a court of competent jurisdiction where the
arbitration takes place provided, however
that the arbitrator shall not be
empowered to award punitive, consequential, or other exemplary
damages. The parties hereby expressly waive their right to recover
punitive, consequential, and exemplary damages in such a
proceeding. The parties shall have the rights to appeal or seek
confirmation or modification of such a decision that are set forth
in the Federal Arbitration Act. This arbitration agreement and any
arbitration shall be governed by the Federal Arbitration Act to the
exclusion of state law inconsistent therewith. The parties shall
share equally the administrative fees and arbitrator’s fees
and expenses unless a contrary provision of law governs. All other
costs and expenses associated with the arbitration, including,
without limitation, each party’s respective attorney’s
fees, shall be borne by the party incurring the
expense.
21. Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which together will constitute one
and the same instrument. Counterpart signature pages to this
Agreement transmitted by facsimile, by electronic mail in portable
document format (.pdf), or by any other electronic means intended
to preserve the original graphic and pictorial appearance of a
document, will have the same effect as physical delivery of the
paper document bearing an original signature.
22. Acceptance.
The Director hereby acknowledges receipt of a copy of the Equity
Incentive Plan, Director Compensation Plan, and this Agreement. The
Director has read and understands the terms and provisions thereof,
and accepts the Restricted Shares subject to all of the terms and
conditions of the Equity Incentive Plan, the Director Compensation
Plan, and this Agreement. The Director acknowledges that there may
be adverse tax consequences upon the grant or vesting of the
Restricted Shares or disposition of the shares and that the
Director has been advised to consult a tax advisor prior to such
grant, vesting or disposition.
[SIGNATURE PAGE
FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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COMPANY
HireQuest, Inc.
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By: ________________________
Name: John D. McAnnar
Title: Secretary
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DIRECTOR
__________________
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By: ________________________
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